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Victims And Victimology In India

The Criminal Justice System in India is derived from the British model where control and prevention of crimes, punishment and rehabilitation of offenders, and protection of individuals and their property are some of the accepted principles. Many countries of the world have realized the need to extend assistance and services to the victims of crime thereby changing their way of dealing with them. Nevertheless, the position of victims has not yet changed in India where they are treated as mere witnesses for prosecuting and punishing the offenders. As such they are deprived of their rights. This paper basically intends to analyze the plight of victims of crimes under the Indian Criminal Justice System.

The present descriptive and analytical secondary data-based study has been conducted with an objective to understand the legal provisions in the Indian Criminal law with respect to rights of victims vis-ŕ-vis various rights their entitled to in other countries. This paper will also suggest the changes that could be brought in the Criminal Justice system to ensure victim’s rights and to bring in the concept of victimology. Enacting laws for victim's welfare and ensuring them conducive environment are some of the suggestions of the study.

Introduction
when a crime happens there may be numerous offenders, victims and the criminal justice administrators otherwise called the crime investigating officers. The role played by all of them is different – the offender is the one who commits the crime, affected by various factors and circumstances; the victims are those who suffer physical, social, financial or emotional injury or harm which needs to be promptly redressed by providing them easy access to justice[1] and finally, the justice provider and the persons involved in the mechanism in rendering justice is collectively known as the criminal justice system. The criminal justice system is a mechanism established by governments in its endeavor to control crime by punishing and imposing penalties on those who violate laws[2].

The following are, inter-alia, five important components of the criminal justice system:
  • Law enforcement
  • Prosecution
  • Defence attorney
  • Courts and
  • Corrections.
Unfortunately, the rights of victims are not considered as one of the major component of the criminal justice system in India. Thus, the author of this paper has analyzed the concept of victimology as applied in various countries and is desirous to put forth the changes that may be brought in the criminal justice system in India considering the victims as the fulcrum of the system.

Victimology can be regarded as a more holistic approach than criminology, acknowledging the systemic injustices that may lead victims to become perpetrators themselves. It also helps reduce the likelihood that perpetrators will commit additional offenses, because it can help them rethink about the individuals they might otherwise victimize[3]

Research Methodology
Method of Research
Pure doctrinal and analytical method of research will be followed. Various reports, articles, legal provisions and case laws will be used to study and prepare the present work. Primary as well as secondary sources of data will be used in this paper. Primary data includes various constitutions, legislations, judicial decisions of different nations and International conventions. The researchers will be using secondary sources of data such as books, various national and international journals, articles and materials available on the internet

Research Questions
  • Whether the rights of victims in India is considered as the major component of the criminal justice system?
  • Whether victimology induces the relationship between the victim and the accused?
  • Whether in India victims are deprived of their rights under the criminal justice system and they are treated as mere witnesses for prosecuting and punishing the offenders?
Research Hypotheses
  • Victimization is the process of being victimized or becoming a victim, the action of singling someone out for cruel or unjust treatment
  • Victims who have suffered harm are just compensated for the damages that they have suffered through civil law and the accused is held responsible for such compensation.

Concept Of Victims And Advent Of Victimology

Meaning and Definition of Victims
Why in history has everyone always focused on the guy with the big stick, the hero, the activist, to the neglect of the poor slob who is at the end of the stick, the victim, the passivist –or maybe, the poor slob (in bandages) isn’t all that much of a passivist victim –maybe he asked for it?’ [Hans von Hentig –The Criminal and his Victim –1948]

The quote above illustrates that, in the past, there was an unequal focus on the criminal event and the person acting in violation of criminal laws. For centuries, legal philosophers and lawyers have been preoccupied with the principles of criminal law, the criteria for criminalization, and the rights of the defendant; while criminologists typically concentrated on the characteristics of criminals, what caused their criminal propensity and how to prevent crime.

Their point-of-departure was always the offender, never the person who suffered as a result of the crime. It was only in the recent, around the 1940s, that academics also started to take an interest in victims of crime and their standing in criminal procedure.

The victim constitutes the most important as well as the most aggrieved entity in any criminal justice administration. The emergence of victimology[4] movement in the late 1970s and early 1980s in the United States of America[5] (U.S.) is credited for putting at the forefront the plights of the victims by describing them as the forgotten entity in the criminal justice administration. The movement in the U.S. was a result of the continuous neglect and ignorance of the rights of the victims in the criminal justice process.

The story holds true for India also. In India, it is widely believed that victims do not have sufficient legal rights and protections, and hence they are considered to be the most neglected entity in the entire criminal justice administration. There is a general feeling that unless justice to the victims is made the focal point of the Indian criminal justice administration, the system is likely to become an institution for perpetuation of injustice against the victims.

The term ‘victim’ refers to a person who has suffered any loss or injury as a result of the actor omission against which the accused person has been charged and the expression victims also includes in itself the guardian or legal heir of a victim[6]. The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship due to any cause and one of such causes may be crime. Therefore, victimology maybe defined as a study of people who experience injury or hardship due to any cause. It involves study of victim characteristic and maybe called victim profiling [7]

Victimology recognizes two types of victims: first type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the accused while committing the crime and second type comprises of indirect victims who are dependents of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner.[8]

We can also define Victims as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power[9]
A victim of crime cannot be a ‘forgotten person’ in a criminal justice system. It is he who has suffered the most[10].

The Malimath Committee Report (2003) in Chapter 6 espoused the idea of justice to victims. The Report highlighted the plight of the victims of crime in every criminal justice process and recommended the constitution of a Victim Support Service Coordinator to safeguard the interest of the victim at the trial stage. The special concern for victim got incorporated into Code of Criminal Procedure, 1973 through measures in the Amendment in 2005, 2006 and 2008. The 2008 Amendment has incorporated and elaborate Victim Compensation Scheme that provides for every State Government to set up a Victim Compensation Fund[11].

Even though no separate and special law has yet been enacted in India for victims of crime, still the silver lining is that justice to victim has been rendered through affirmative action and orders of the Supreme Court. The trends in victim justice and the constitutional commitment to ‘fair justice’ to all the citizens seem to have motivated the Indian Supreme Court to evolve distinct victim justice jurisprudence in India. The Supreme Court in various decisions has taken a ‘provictim’ approach.

In Rattan Singh v. State of Punjab[12], Krishna Iyer, J. held that:
It is a weakness of our jurisprudence that the victims of the crime do not attract the attention of law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the legislature.A more attention should be drawn to this matter.

In Maru Ram v. Union of India[13], Krishna Iyer, J. held that:
while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but is futility compounder with cruelty. Victimology must find fulfilment not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.

In Dayal Singh v State of Uttaranchal[14], the Supreme Court held that:
The criminal trial is meant for doing justice to all- the accused, the society and the victim. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that the guilty man does not escape.

Advent of victimology
Victimology has traced back to 1920’s itself. But in 1940 the founders of this branch of knowledge, Mendelsohn, HansVon Hentig and Wolfgang initiated the use of the term victimology. This is not a new concept; even before the study on victims was started, there were numerous victims in the society.

Concept of Victimology
'The scientific study of crime victims is called, victimology, after Benjamin Mendelsohn who coined the term in 1947. Comparable to criminology, where the offender plays a central role, the focus of victimologists lies with the victim and the different aspects of victimization. Victimology is: the scientific study of the extent, nature, and causes of criminal victimization, its consequences for the persons involved and the reactions hereto by society, in particular the police and the criminal justice system as well as voluntary workers and professional helpers.

Victimology is the scientific study of victimization, it includes the relationship between victim and the accused, the interaction between victim and the criminal justice system i.e. the police and the courts and the correctional officials[15]. This concept also has an implied relationship with social groups, institutions, media, business and social movements. Victimization is the process of being victimized or becoming a victim, the action of singling someone out for cruel or unjust treatment.

We can say that victimization is the relation between victim and the accused, there is no exact definition available on it. There are different theories of victimization which are Primary victimization, Secondary victimization (post crime victimization), Re-victimization (repeatedly became the victim), Self-victimization (variety of reason to justify abuse).

Moreover, Victimology can also be regarded as the study that outlines the steps to be taken to prevent victimization against crimes and provide legal remedies to the victims of crime. The impact of victimization on crime affected persons drew attention of criminal law jurisdictions around the world and they were convinced that victims need to be treated with compassion and dignity and their fundamental rights must be protected and preserved.

The genesis of victimology as a branch of criminology can be traced in the UK, West Germany, Canada, Australia, New Zealand and the USA. Victimology is an emerging science and an integral branch of criminology which studies the interrelationship between the violators of law i.e., criminals and the sufferers of crime i.e., victims. It has its emphasis on both the victim's state as well as his co-relation to the criminal.

Therefore, the development of the concept of victimology has drawn its basis and is built on the foundations of various fields such as criminology, law, medicine, psychology, psychiatry, social work, politics, education and public administration. Under the Indian criminal justice system, victims of crime have no inherent prerogative, and the state treats victims as mere witnesses. Thus, it is indispensable under the justice system to compensate to the person who has suffered, that is to say, that the accused is responsible for the reparation and restitution of any harm inflicted to the sufferer of an offence.

Plight Of Victims In India

In India victims are deprived of their rights under the criminal justice system and they are treated as mere witnesses for prosecuting and punishing the offenders. Victims who have suffered harm are just compensated for the damages that they have suffered through civil law and the accused is held responsible for such compensation. Compounding the victim is considered as justice under the Indian Criminal Justice System[16].
  1. The Constitutional Remedies for Human Rights Violation
  2. The Criminal Procedure Code, 1973 (herein CrPC)
  3. The Fatal Accidents Act, 1855
  4. The Probation of Offenders Act, 1958
  5. The Motor Vehicles Act, 1988

Victims of a crime are awarded with compensation for the loss they have suffered based on the above mentioned statutes. Protecting citizens and their property from any kind of harm is considered as the primary objective of the state under the Criminal Justice System. The state, therefore, carries on this duty by ensuring that the citizens do not take law into their hands to satisfy their interests. When a crime is committed, against the norms and principles of the society, state itself becomes a victim for prosecuting and punishing the offender.

Criminal Justice system concentrates on the crime, the offender, trial of the case, proving the offender guilty and awarding punishment. After playing their role as witnesses in the proceedings, the victims are forgotten and marginalized. They are not provided with any assistance and when they are not cared of, it creates a sense of angst in them which may subsequently lead to distortions in the Criminal Justice System.

Therefore, there is a dire need to shift our focus from the offenders to the victims who have suffered substantial injury. As like how the transformation to crimes from torts took place we also need such transformation on this regard. In case of a cognizable offence, if a victim of the offence approaches the police to give information, the police is obligated to record the information in writing and the same after being read out to the victim/informant has to be signed by the informant.

The police cannot refuse to provide the informant with a copy of the First Information Report according to sec. 154(1) and (2) of CrPC. The victim/informant can send the information in the form of writing to the Superintendent of Police provided the police denies to record the same under sec.154 (3) of CrPC. If in case the police officer refuses to investigate the matter, he/she is required to state the reason for not proceeding with the issue to the informant in the form of facts.

This is laid down in sec. 157(2) of CrPC. Generally, the complainants are not treated well by the police and at times instead of attending to their grievances they are being harassed at police stations. Not every time the complaints are recorded truthfully by the police and in many cases the facts are either manipulated or distorted according to their convenience. Offences that are cognizable are made as non-cognizable and vice- versa.

We can also find that many a times accused himself gives the complaint and the investigation is initiated by him. These may be some potential reasons why the victims get themselves detached from the system as such. Though victims under sec. 190 of CrPC. have the right to approach the Magistrate directly with his complaint thereby avoiding the redress by visiting the police station, the process of investigation is entirely in the hands of the police.

The victims have their role only when the police feel so. Only in certain states the police are instructed to provide the victims with the information regarding the investigation process when they ask for it.

The plight of the victims is pitiable until and otherwise the police file the charge sheet under sec.173 of CrPC. The Magistrate after taking cognizance of the charge sheet decides as to whether the proceedings can be dropped and if so, he issues notice to the informant to hear his grievances as required of him. But the dropping of the proceedings would not provide the victim with an opportunity to be heard. Under sec.250 of CrPC. the informants are required to pay compensations to those accused of offence without just cause/reason under the direction of the Magistrate. It is recognized under sec.357A of CrPC. that conviction of the offender is not required to provide victims with financial reliefs.

Also, the compensation can be availed through the Code of Criminal Procedure, 1973. The state governments along with the central government will provide the scheme for compensation. Compensations under this scheme can be provided for the victims of a crime who have suffered substantial loss or damage as well as for their dependents who need compensations. Based on the recommendation made by the court for awarding compensations, the District/ State Legal Service Authority will decide on the quantum that can be awarded as compensation.

Further, under sec.358 of CrPC., the court is empowered to order compensations to be made by a person to another who was wrongfully arrested by the police officer due to the incorrect information given by the former. If a person is convicted for a non-cognizable offence, expenses that he has incurred for proceeding with the prosecution is refunded to him based on the order of the court under sec.359 of Cr. P.C. Under sec.5 of the Probation of Offenders Act, 1958, trail court is empowered to pass an order to award compensation to the victim. Such an order can only be passed by the trail court.

The means through which fine can be recovered by attaching and selling of the offender’s movable property and arrears of land revenue from movable as well immovable property is provided under sec. 421 of CrPC. The courts under sec.431 of CrPC. are empowered to recover money, except fine, which is payable in compliance with any order made as if it were a fine under the Code.

In India we can find that numbers of offences committed are increasing whereas the reporting of the crimes is decreasing though numerous number of people every year are suffering both physical as well psychological damages which are the effects of the crime inflicted upon them. Due to fear of victimization by the perpetrators and their reprisals, the victims as well their relatives most of the times fail to provide information regarding the crime inflicted upon them. Therefore, crime prevention and detention becomes arduous for the police. Undoubtedly, witnesses play a major role in assisting the police in investigation process as well adducing evidence in the court to ensure successful criminal prosecution.

Role Of Judiciary In Ensuring Rights Of Victims

Justice is not only in the end result; it is also in the process. Traditionally, control and prevention of crimes, punishment and rehabilitation of offenders and protection of individuals and their property were the only accepted principles of the criminal justice system. Therefore, there is a need to expand the meaning of justice. Justice should not be confined only to conviction or acquittal of the accused but also must ensure to inspire the confidence of the witnesses for conviction of the guilty and particularly the victims of the crime.

The victims by providing information regarding the crime set the criminal justice system in motion and the greatest relief available to them is access to justice. In cases of rape, the entire case becomes baseless due to the delay in the collection of samples and here the victims being women and children are deprived of the access to justice. The rape victims, sometimes, for the purpose of taking evidence are held in protective custody which lacks no legal basis as such.

The victim is not entitled to engage an advocate of his/her choice even though the accused is[17]. Under sec. 24(8) of CrPC the victim, for the purpose of prosecution, can engage an advocate of his/her choice to assist the former only if the court permits him for the same. The advocate so engaged is bound to act under the directions of the prosecutor and can submit written arguments after the taking of evidence only if permitted by the court [s. 301(2) of CrPC].

Restitution of the victims though not a statutory right in India has to be made legislative because examining the plea of the victims for Redressal or for the loss suffered is not sufficient. The Code of Criminal Procedure has recognized the compensation of victims as a right but making it available only if a substantive sentence of fine is imposed and limiting it to the amount of fine actually realized is reducing the scope for compensation. Though under sec. 357(3) of CrPC. fine can be imposed by the Magistrate, where it has not been imposed, courts are inconsistent in invoking this section.

The Law Commission in its 152nd Report had recommended that sec. 357A of CrPC has to introduced which prescribes that in case of bodily injury which has not resulted in death, compensation amounting to Rs. 25,000/- should be awarded to the victims at the time of sentencing and in case of death Rs. 1,00,000/-. Under this section if the compensations awarded in accordance with sec. 357 of CrPC. are not adequate for rehabilitation of the victim or if the case ends in an acquittal or discharge of the accused, the court is empowered to order the state to pay such compensations for the victim’s rehabilitation.

The victim is also entitled to request the State or District Legal Services Authority for rehabilitation even if the accused is not tried. Sec. 357A of CrPC. was introduced/ incorporated only after it was mandated by the 154th Law Commission Report. The point to be noted here is that for a section to be implemented in practice it takes years together which is unhealthy to a state as it delays justice for the victim.

In the case of Sakshi v. Union of India[18], the in-camera trails were mandated by the Supreme Court to maintain the dignity of the victims particularly in case of offences like rape and when the victim is a child. In another case of Nirmal Singh Kahilon v. State of Punjab[19] the Apex court held that victims of a crime are also entitled with the right to fair investigation, equally like the accused, as provided by our Constitution under Article 21.

Supreme Court in the case of Bodhisattva Gautama v. Subhra Chakraborty[20] observed that the court also has the right to award interim compensation when trying offences of rape instead of awarding compensation at the final stage. The accused can also be ordered to pay Rs. 1000/- as interim compensation to the victims along with the arrears of the compensation from the date of complaint.

Conclusion And Suggestions
The entire criminal justice system in India is offender oriented. Many a times even the judiciary, the legislative and the executive is concerned about the rights of the accused or the criminal. The criminal justice system has to function thereby to provide justice to the victims for which the judicial system must be accessible to those who demand justice. If the system fails to ensure that the victims and witnesses voice out without fear, participate in court proceedings, have their interests and rights protected, then justice would remain only in letter and not in spirit.

Needless to say, the system should also guarantee the protection of victim’s families for their testimonies to be true and prosecution to be fair. Our society always blames the victim for the crime and not the actual offender. The situation would have been different had the rights of the victims been taken care by the state and the law been tough on the offenders. To empower the distressed victims and to assure them with their rights, the above said suggestions need a legislative frame work.

Suggestions
The author would like to suggest that there is a need for a Bill for the protection of the victims that ensures the victims with their basic rights as well as also encourages the judiciary to respond to their needs and facilitates the state to assist the victims. A victim not only includes the person who has suffered the loss or injury but also their dependents who have equally incurred the loss.

Every state government can also create an online complaint portal for their respective state which would include all details of the compliant, investigation and officers who are in-charge for the investigation. The Central Government can come up with a Toll-free Number to facilitate the lodging of complaints.

It can be made mandatory that the investigation of a female victim could be conducted by a women police officer who is above the rank of constable. The Central Government can allocate victim’s suffering fund for the immediate treatment of the victims. Fast track court system can be adopted so that the whole process of justice could be completed at the earliest.

End-Notes:
  1. Prof. N.V. Paranjape: Criminology, Penology, Victimology (2018) p. 763
  2. https://victimsofcrime.org/help-for-crime-victims/get-help bulletins-for-crime-victims/the-criminal-justice.
  3. unafei.or.jp/English/pdf/PDF_rms/no56/56-07.pdf
  4. It is an academic scientific discipline which studies data that describes phenomena and causal relationships related to victimizations. This includes events leading to the victimization, the victim’s experience, its aftermath and the actions taken by society in response to these victimizations. Therefore, victimology includes the study of the precursors, vulnerabilities, events, impacts, recoveries, and responses by people, organizations and cultures related to victimizations
  5. Ann Wolbert Burges, Regehr Cheryl & Albert R. Roberts, Victimology: Theories And Application 31-32 (Jones and Bartlett Publishers, Massachusetts 2010
  6. Criminal Procedure Code 1973, S 2(wa).
  7. Randhawa, Gurpreet Singh, Victimology and Compensatory Jurisprudence, 1st Ed., Central Publications, Allahabad, 2011, p. 42.
  8. State of Gujrat v. High Court of Gujrat, (1998) 7 SCC 392
  9. Andrew Karman: crimes victims: An introduction to victimology (2003) P. 7
  10. State of Gujrat v. High Court of Gujrat, (1998) 7 SCC 392
  11. B.B. Pande, Growing Concern for ‘Victims’ Interest in Criminology Theory, criminal Law Level Practices: Implications for Future Action (2011) 1 (1) KIIT Journal of Law and Society
  12. 1979 (4) SCC 719
  13. 1981 (1) SCC 107
  14. 2012 (8) SCC 263
  15. Supra 2
  16. Nida Zainab Naqvi, Rights of Victims in India’s Criminal Justice System- Analysis, Eurasia review (Feb. 22, 2016)
  17. Role of Judiciary in Protecting Victims’ Rights, Legal Services India (March 17, 2018, 03:38 AM
  18. A.I.R. 2004 SC 3566
  19. 2009 1 SCC 441.
  20. A.I.R. 1996 SC 922.

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