15 Victims of Crime

Mr. Neeraj Tiwari

1. Introduction:

In primitive societies and in the Anglo-Saxon period justice was privatised and redressal for wrongs was totally in the hand of the victim. But with the growing complexities and increasing difficulties of collection of evidence and bringing the wrongdoers to justice, the idea of private justice was replaced by public justice in which the state functionaries took upon themselves the responsibility of investigation and prosecution of crimes on behalf of the victim. This way victim’s interest was sub-summed in the state action. Under the new dispensation, criminal justice became pre-occupied with the accused-orientation and victims were marginalized. The State stood forth as the victim to prosecute and punish the accused.

But by the last quarter of the twentieth century, particularly after the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, victim perspective emerged in a new and powerful way. The UN Declaration, known as Magna Carta for crime victims, has set norms and minimum standards for the protection of crime victims.1 The UN Declaration also desired member countries to guarantee rights of victims of crime through their respective legal systems. The UN Declaration recognised four major needs of crime victims, namely

–  Access to justice and fair treatment

–  Restitution

–  Compensation, and

–  Assistance.

Many countries like Canada, England, US, New Zealand etc. have responded to the UN Declaration and introduced exclusive legislations to address the need for victims oriented criminal justice system. These legislations incorporate the essential rights of victims as stipulated in the UN Declaration.2

2. Victims of Crime and the Indian Criminal Justice System:

The development of victim oriented justice system in India is an outcome of proactive judiciary. The decisions of Supreme Court, particularly in 70’s and 80’s, have contributed towards recognition of the need and protection of victims of crime and abuse of power. The impact of UN Declaration of Justice for Victims of Crime and pro-victim judicial pronouncements is visible in subsequent legislative and executive initiatives. The Law commission of India in its 154th Report addressed the need for victim oriented approach to justice delivery system and recommended that the needs and rights of victims of crime should receive priority attention in the total response to crime. It was also noted in the Report that “at present, the victims are the worst sufferers in a crime and they don’t have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system.3 In 2003, the Malimath Committee in its Report on ‘Reforms of Criminal Justice System’ has extensively deliberated upon the participation of crime victims at various stages of criminal justice system. The Committee also considered expansion of principle of compensation to crime victims. Subsequent amendments in the Code of Criminal Procedure expanding the role of crime victims can be seen in the line of recommendations of the Malimath Committee Report.4

3. Definition of victim:

It was the impact of UN Declaration of Justice for Victims of Crime and efforts of the Malimath Committee that after so long in 2008 the Code has introduced the definition of ‘victim’. Section 2 (wa) of the Code defines ‘victim’ as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir.

This definition when compared with the definition of ‘victims’ in the UN Declaration looks narrow in approach. The UN Declaration treats a person as a victim in two situations namely i) victims of crime and ii) victims of abuse of power. The first category covers those cases where injury is inflicted by any other person whereas the second category of victimization is a result of state action. But regrettably in all our discussions either in the Malimath Committee Report or section 2(wa) of the Code, our focus seems to be on the first category only.

In UN Declaration the expression ‘victim’ means not only the person who has suffered the harm (physical, mental, emotional suffering or economic loss) but also include those persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. Further the person will be treated as victim of crime regardless of the fact whether the perpetrator is identified, apprehended, prosecuted or convicted.

Therefore, in Indian scenario the aggrieved person will not be treated as victim unless the perpetrator is charged for the action which resulted in such victimization. At the same time the expression ‘victim’ is limited to legal representative and guardian of the victim.

An effort has been made by the Delhi High Court in recent past to clarify the scope of the definition of ‘victim’.5 One of the issues before the Court was whether the word ‘victim’ in section 2(wa) of the Code would mean only the legal heirs entitled to the property of the victim under the law applicable of inheritance or would embrace any person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged.

The Full Bench rejected the approach of Division Bench in interpreting the expression ‘loss and injury’ which limited its scope only to the ‘direct and most proximate result of the crime’ in terms only of bodily injuries. Whereas the Full Bench noted that such an expression is expansive in nature and cover injuries to ‘body, mind, reputation or property’.6 The Court further stated that undoubtedly there should be a relationship of proximity between the injury and the act constituting the offence. However, such proximity is not limited to physical injuries but also extends to mental injuries.

Finally the Court summarized that ‘victim’ in section 2(wa) must include a person who has suffered ‘harm caused to the mind’. The legal heirs who are included within the definition of the term ‘victim’ cannot exclude those who actually fall within the definition of ‘victim’ by virtue of emotional harm suffered.7

4. Locating Victim in the Criminal Justice Administration:

4.1 Role of victim in Pre Trial Process:

After being victimized the victim’s first encounter is with the police and his notion about entire criminal justice system is dependent on the kind of treatment they get from the police. Clause 4 of the UN Declaration also demands that victims should be treated with compassion and their dignity to be respected. Victims of crime should have prompt access to the state machinery to report their grievance.8 Under the Code of Criminal Procedure victim/informant of a cognizable offence can give information to a police officer about the same who is required to reduce it in writing as per section 154. The victim/informant is required to sign it and get a copy of the FIR.

Unfortunately, the police are still not sensitized enough to understand the trauma and agony of victims of crime. At the same time, the police machinery does not respond to the plight of victims and show reluctance in lodging the FIR.

If the police officer refuses to record the information, the victim/informant is allowed to send it in writing and by post to the Superintendent of Police concerned. To fortify this further, the legislature has introduced section 166A(c) in IPC and made it obligatory for the police officer to register an FIR in offences against woman. The section prescribes punishment for erring police officers which shall not be less than six months and may extend to two years and shall also be liable to fine. Such a provision can also be found in the special legislation like Protection of Children against Sexual Offences Act, 2012 (POCSO Act) where non-recording of an offence falling under sections 19(1) or 20 will invite criminal sanction of imprisonment up to one year and fine under section 21 of the Act.

The Supreme Court in Lalita Kumari v. Govt. of U.P.9 has also made registration of FIR mandatory in all cognizable cases and directed that departmental action must be taken against erring officers who do not register FIR in such cases. Alternatively, the victim/complainant may directly approach the Magistrate and can file complaint. The Magistrate may initiate proceeding on such complaint.

4.1.1 Special reporting procedure for victims of sexual offences:

Where the information under section 154 of the Code is given by a woman against whom an offence of acid attack or sexual harassment or rape is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any woman officer.10 Where such woman is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of that woman or at a convenient place of her choice, in the presence of an interpreter or a special educator. The recording of such information shall be videographed.11

4.1.2 Victim’s role in investigation process:

The investigation process is exclusively a police function and it is not required on the part of the investigating authorities to involve victims in the investigation process. Their participation in the investigation process is dependent on the need of the investigating authorities. Victims do not have right to seek information on progress of the investigation till the charge sheet is filed. They cannot offer suggestions with regard to investigation. The stage between filing of FIR and submission of police report/charge sheet does not recognize participation of crime victims at all. Though at this stage crime victims require assistance the most but unfortunately the law is silent on it. If the police officer refuses to investigate the case for whatever reason, the police officer is required to notify the informant of his decision.12

The Court has recognized right of the victim/informant to receive notice in cases where the police has filed a closure report under section 169 or where the Magistrate decides not to take cognizance of the offence on a police report submitted under section 173.13 Where the investigating officer files closure report the victim/informant may prefer a protest petition before the Magistrate who may take cognizance of the case on that basis.

4.1.3 Victim’s right to participate in trial:

In our country, the right of legal representation is a fundamental right of every accused person but the victim is not even allowed to participate in the trial. Victims are merely seen as an informant who set the wheels of criminal justice in motion. There role is limited to that of prosecution witness. The prosecution is carried by state appointed prosecutor who is in-charge of the prosecution and victim has no say in the conduct of prosecution.

Sections 24(8) proviso14, 301(2) and 302 of the Code which accord to the victim a vital right to counsel, do not allow direct participation of victim in the trial and permits him to step in the trial through his pleader.15 The pleader so appointed has limited role in the conduct of prosecution. He is to act under the directions of the public prosecutor and requires prior permission of the court. Victim’s pleader is allowed, with the permission of the court, to submit written arguments after the closure of evidence in the trial.16 Victim has no right to lead evidence, challenge the evidence through cross-examination of witnesses or advance arguments to influence decision-making.17

It can be seen that the pleader so appointed by the victim may act as a watch advocate and protect the interest of the victim during trial. He may also intervene if justice demands.18 Though, it is sad that such a right is rarely claimed by the victims or extended by the judiciary. Following cases would help us to understand the scope of these provisions.

In J. K. International v. State, Govt. of NCT of Delhi19 the appellant approached the Supreme Court against the order of the High Court which denied him right to be heard. The High Court in its order stated that “the right of the complainant to be heard ceases once cognizance is taken and he cannot thereafter continue to participate in the proceedings as if he were the aggrieved party who must have his say in proceedings.”

The Supreme Court observed that when the criminal proceedings are sought to be quashed, it would be a negation of justice if the complainant is foreclosed from being heard even after he makes a request to the court in that behalf. The Court then read the scheme of the Code and stated that any person, who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the Sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial.20

An important issue regarding conduct of prosecution by any other person other than prosecutor in Sessions Court came before the Supreme Court in the case Shiv kumar v. Hukum Chand21. In this case the Court observed that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. This is because of the nature of the duty performed by the prosecutor. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it.22

It is only in case of Magistrate’s court that a private person may be allowed to conduct the prosecution. In light of section 225 of the Code in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor only. The private counsel appointed under section 301(2) of the Code is to act on behalf of the Public Prosecutor. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in section 225 of the Code a dead letter.23

In Sister Mina Lalita Baruwa v. State of Orissa24 the victim preferred an application before the Sessions Court praying for recalling of prosecution witness who was not examined properly by the public prosecutor for giving misstatement. The Sessions Judge rejected the application and stated that the victim has no locus to file such an application which should have been filed by the public prosecutor. The victim challenged the Order of the Sessions Court in the High Court. The High Court while upholding the Order passed by the Sessions Court observed that the appellant as an informant has a very limited role to play so far as the trial before Sessions Court is concerned. Such a step of recalling any witness is beyond the authority granted to an informant or a private person under section 301 of the Code.

It was against this Order of the High Court, the appellant approached the Supreme Court. The Supreme Court has shown its distress to the state of affairs in this case. It was observed by the Supreme Court that the Trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to section 301 of the Code in a blind folded manner, ought to have examined as to how the situation to be appropriately set right. The Courts below should have made an attempt to reconcile sections 301 and 311 in such peculiar situations and ensured that the trial proceeded in the right direction. Lastly the Court directed that the appellant must be provided with an opportunity to file the written arguments as provided under section 301 of the Code.

The provisions relating to plea bargaining in the Code are also crucial as far as victim’s role is concerned. Under the relevant provisions the victim is required to be served with a notice to participate in the meeting to work out a mutually satisfactory disposition of the case, including payment of compensation agreed. The victim is allowed to appear along with his pleader in such meeting.25

Victims have substantial interests in bail proceeding but the law does not require the court to hear him while granting or cancelling the bail. The victim may invoke section 439(2) for cancellation of bail but he is allowed to move through the public prosecutor and the outcome of the proceeding depends very much on the stand taken by the prosecution thereby leaving very less hope for the victim.

Similarly victim has no say in cases where the prosecutor decides to withdraw from prosecution. Section 321 of the Code allows prosecutor to either withdraw generally or in respect of any one or more offences. Victim seems to have no right to challenge the prosecution decision at the trial stage itself.

4.1.4 Victim’s right to appeal:

Earlier the scheme of the Code only allowed the State and complainant to challenge the acquittal of the accused in an appeal. But in 2008, by an amendment proviso to section 372 was added in the Code which conferred right to appeal on a crime victim as well.

Under the said proviso, a crime victim may prefer an appeal in any of the following circumstances:

–  against acquittal of the accused or

–  conviction for a lesser offence or

–  for inadequate compensation.

The said proviso does not provide for victim’s right of appeal for enhancement of sentence which still remains the prerogative of the State under section 377 of the Code. The appeal preferred by victim shall lie to the court to which an appeal ordinarily lies against the order of conviction of such Court.

Though the Code conferred such a right on victims of crime but the provision has also raised certain issues regarding its application. Since other provisions dealing with appeal were not amended, the following questions are left to be answered by the judiciary:

whether victim’s right to appeal need to satisfy the requirement of leave for appeal under section 378 of the Code;

whether his right is independent of or subservient to the right of the State in matters of appeal;

Where the victim is also the complainant whether he needs to apply for special leave under section 378(4) or he can directly file an appeal under the proviso to section 372 of the Code as a victim.

These issues gained considerable attention of various High Courts dealing with this provision and some high courts have attempted to clarify these doubts.26

Recently the Delhi High Court has also concluded that the proviso is not an exception to section 372, but a stand-alone legal provision. The proviso to section 372 dispenses with the requirement of leave in case it is the victim who is appealing.27 Where the victim is by reason of trauma, shock or other disability unable to prefer an appeal, those who are in a position to do so on her or his behalf and who might also have suffered some proximate harm can maintain an appeal under the proviso to section 372.28

Such an expansion of victim’s appellate right is considerably impacted by the Supreme Court decision in Satya Pal Singh v. State of M.P.29 wherein the Court has held the view of Delhi High Court legally incorrect. The Court has observed that the proviso to section 372 must be read along with its main enactment i.e., section 372 itself and together with sub-section (3) to section 378. Therefore, now victim can prefer an appeal in the High Court only after obtaining the leave of the High Court.

5. Victim’s right to compensation:

Sections 357, 357A of the Code are repository of compensation to victims of crime.30 Section 357(1)(b) of the Code confers wide discretion on the sentencing court to divert whole or part of the fine imposed on the accused as compensation towards victim of such crime for any loss or injury caused by the offence. Similarly clause (3) of section 357 recognises payment of compensation even in cases where fine does not form a part of the sentence. The court may order the accused person to pay compensation to the victim who has suffered any loss or injury. But the experience has shown that this provision has rarely attracted the attention of the courts and ward of compensation has been recognized more as a token relief rather than part of a punishment or substantial remedy. Time and again the Supreme Court and High Courts have reminded that the provision is aimed at serving the need of victims and should be exercised liberally by the courts.

Section 357 has following limitations:

– compensation can be awarded only when the offender is convicted and sentenced;

– the sentence of fine can be applied in the payment of compensation only when compensation is, in the opinion of the court, recoverable by the victim in a civil court;

– the payment remains suspended till the limitation period for the appeal expires or if an appeal is filed, till the appeal is disposed of;

– the order under section 357(3) will be a futile exercise where the accused does not have financial resources to meet the same.

Section 357-A was introduced by way of amendment to the Code in 2008 to remedy the shortcomings of section 357 and for the first time the Code recognised payment of compensation out of State fund even in cases where the accused is not traced or convicted.

Section 357-A (3) empowers the courts to recommend the award for compensation to the victims in following cases:

–  where compensation awarded under section 357 is inadequate or

– where the case ends in acquittal or discharge and the victim has to be rehabilitated.

Even in cases where accused is not identified and no trial took place and the victim is identified, he may request the State/District Legal Services Authority to award compensation as per section 357A(4).

5.1 Victim Compensation Scheme:

Section 357A requires every State government to prepare a scheme for victim compensation. Such scheme is to be prepared in coordination with the Central Government. As and when the recommendation is made by any Court for compensation, the District/State Legal Services Authority shall decide the quantum of compensation to be awarded to the victim. An analysis of the Schemes prepared by various states reveal that the amount fixed for compensation is very less which varies with the nature of offence. The maximum amount to be paid as compensation is for the loss of life which ranges between one lakh to maximum of five lakhs in different states.31 It can be seen that payment of compensation is recognized more as a token relief rather than part of a punishment or substantial remedy.

The Supreme Court in case of Laxmi vs. Union of India32 reflected on the needs of victims of acid attack. The Court has shown its distress on the fact that the Victim Compensation Scheme prepared by different States provide meager amount as compensation to the victims of acid attack, and directed that at least 3 lakhs shall be paid as compensation by the concerned State Government as the after care and rehabilitation cost. The Court further directed that of this amount, a sum of 1 lakh shall be paid to such victim within 15 days of occurrence of such incident to facilitate immediate medical attention and expenses in this regard.

Section 357B enhanced the monetary protection afforded to victims of sexual offences and states that the compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code.

5.2 Criteria for fixing quantum of compensation:

In awarding compensation courts should not first decide the quantum of compensation ought to be awarded to the victim or his dependents and then impose a fine which is higher than the compensation. In various cases the Supreme Court has mentioned following circumstances to be considered by courts while fixing the amount of compensation:

–  nature of the crime;

–  injury suffered;

–  justness of the claim for compensation;

–  capacity of the accused to pay.

6.Ensuring Restitution and Assistance to Victims of Crime:

Restitution means putting the victim in his/her original position. It is presumed that law will make fair restitution to victims, their families or dependants which include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization. But so far ‘restitution’ is not recognized as a sentencing option in addition to other criminal sanctions and it still depends on the discretion of the court to make ‘restitution’ part of sentence or not.33

Clause 14-17 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power deals with need for assistance for victims of crime. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary or community-based means. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

In this regard Section 357A (6) is a welcome step which requires the State/District Legal Services Authority to provide to victims of crime immediate first-aid facility or medical benefits free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit. Section 357C of the Code extends the obligation for ‘treatment of victims’ on all hospitals, whether public or private, to provide the first aid or medical treatment free of cost to the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C, 376D or Section 376E of the Indian Penal Code. Any failure to provide the first aid or medical treatment to the victims under section 357C will attract punishment under section 166B of the Indian Penal Code which provides imprisonment for a term which may extend to one year or fine or both. The liability of hospitals under section 357C for the purposes of ‘treatment of victims’ is limited to the offences mentioned therein and does not extend to victims of other crimes.

In Laxmi v. Union of India34 the Social Justice Bench of the Supreme Court has given direction that all private hospitals must provide full treatment to the victims of acid attack including medicines, food, bedding and reconstructive surgeries. The hospital which treated such victim for the first time must issue a certificate stating that such person is a victim of acid attack. The Court directed for establishment of Criminal Injuries Compensation Board (CICB) at the level of District Legal Service Authority to decide the matters  pertaining to compensation claim made by the acid attack victims.

Victims and Judicial Process:

The observation of Justice Krishna Iyer in Rattan Singh v. State of Punjab35 speaks about the apathy of our system towards victims of crime.

“…It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependents of the prisoner, do not attract the attention of the 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.”

It was judiciary which walked past the legislature in recognising and protecting the rights of victims of crime as well as abuse of power. In Hari Singh v. Sukhbir Singh36,the Supreme Court has cautioned the courts below for not invoking section 357(3) and held that:

“The power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes.”

In Ankush Shivaji Gaikwad vs. State of Maharashtra37 the Supreme Court dealt with the issue of victim compensation and observed that:

“The provisions dealing with compensation to the victims of crime confer a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. The Trial Judge must record his reasons for awarding/refusing compensation. The grant of compensation to the victim of a crime is equally a part of just sentencing.”

Another important development from the point of view of victims of crime was payment of interim compensation which was recognized by the Supreme Court in Bodhisattwa Gautam v. Subhra Chakraborty38. The Court took reference from its earlier decision in Delhi Domestic Working Women’s Forum v. Union of India and held that if the Court trying an offence has jurisdiction to award the compensation at the   final    stage,   there    is    no   reason    to    deny   to    the   Court    the   right     to award interim compensation.  The  jurisdiction  to  pay interim compensation shall  be treated to be part of the over all jurisdiction of the courts trying the offence.The Code confers right on an accused person to be heard on the question of sentence but it remains silent on the issue of victim’s participation at sentencing. In countries like United States and England victim is permitted to present a statement at the stage of hearing on sentence. In United States it is known as ‘Victim Impact Statement’ and in England it is called ‘Victim Personal Statement’.

In State of Andhra Pradesh v. Polamala Raju @ Rajarao39 the Supreme Court observed that:

“It is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence. The sentencing Court must hear the loud cry for justice by the society and more particularly, in cases of heinous crime of rape of innocent helpless children, of the victim of crime and respond by imposing a proper sentence.”

Such an observation of the Court is pertinent in light of the fact that victim is not given any such opportunity at the stage of sentencing.

The idea behind directing the accused to pay compensation is to provide immediate relief to the victim. But where the accused is not willing to pay compensation whether an imprisonment in default of payment can be imposed or not? This question came for consideration in K.A. Abbas v. Sabu Joseph40. In R. Mohan v. A.K. Vijaya Kumar41, the Supreme Court again got the opportunity to examine this question. The Court observed that “Section 431 of the Code provides for recovery of any money (other than fine) payable by virtue of any order made by the Court. Thus, compensation can be effectuated by section 431.”

“If section 421 puts compensation ordered by the court on par with fine so far as mode of recovery is concerned, then the court can impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine.”

Roy Fernandes v. State of Goa42  is another case where the Supreme Court besides reducing the sentence of the accused to the period already undergone also ordered to pay compensation to the victim’s family. The Court directed that if the accused fails to pay the compensation so ordered then the sentence of one year awarded to the accused shall stand revived.

Therefore, it is clear that in cases where the accused fails to pay or refuses to pay the compensation so ordered by the Court, he may be sentenced to imprisonment for such default.

8. Victims of abuse of power:

Clause 18 of the UN Declaration of Justice for Victims of Crime defines ‘victims’ of abuse of power in the following terms:

‘Victims’ means 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 do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

In our country, we have yet to import clause18 of the UN Declaration of Justice for Victims of Crime and Abuse of Power. Even the Law Commission and Malimath Committee failed to recognize victims of abuse of power as a distinct category of victims. But the Constitutional Courts have extended their writ jurisdiction and awarded compensation to the victims of abuse of power as a public law remedy.

In case of Rudal Shah v. State of Bihar43, the Supreme Court recognised the need for compensation in cases of abuse of power by the State machinery and directed the State Government to pay compensation to the victim, Rudal Shah, for illegal incarceration for long years.

In Bhim Singh v. State of J&K44, illegal detention in police custody of the petitioner was held to constitute violation of his rights under Articles 21 and 22(2) of the Constitution. The Court in exercise of its power under Article 32 directed the State to pay compensation to the petitioner for violation of his constitutional right.

The law on award of compensation for abuse of power was crystallized in Nilabati Behera v. State of Orissa45. In this case the deceased was arrested by the police and kept in police custody. The next day, his dead-body was found on a railway track. The Court treated it a case of custodial death and awarded compensation to the mother of the deceased.

Mehboob Batcha v. State46 was a fit case where the Supreme Court could have invoked its compensatory jurisdiction in cases of abuse of power by the police machinery who not only beat the victim to death in their custody but also gang raped his wife. But regrettably, the Court missed the opportunity to award compensation to the wife of the deceased.

In contrast, the case of State of Punjab v. Ajaib Singh47 is a laudable example of proactive judiciary where the Supreme Court awarded compensation even in case of acquittal. The case involved killing of two police officers by another police officer. The Supreme Court upheld the order of acquittal passed by the High Court but directed the respondent to deposit a sum of rupees five lakhs with the Registrar of the High Court for the purpose of payment to the dependents of the deceased. Interestingly, the Supreme Court did not award such compensation under section 357 of the Code.

Summary:

The victims of crime have gained attention of law makers worldwide. Many countries have enacted legislations exclusively addressing the needs of crime victims. In India, the movement for recognising needs of crime victims has started after UN Declaration came into existence. The judiciary has played a major role in establishing victims of crime as a separate stakeholder in the criminal justice process. The Judiciary marched ahead of legislature in evolving and conferring procedural rights on crime victims. Such proactive step of judiciary was supported by various recommendations of Law Commission and Malimath Committee.

Of late, the Legislature has brought some key changes in the procedural criminal law to address the plight of crime victims. Making crime reporting mandatory, giving opportunity to victim’s counsel to appear before the court, providing independent right to victim to appeal, award of compensation even in cases where the accused is not traced or where accused is acquitted/discharged, Victim Compensation Scheme are some of the key changes of recent past in the Code of Criminal Procedure. Now, the victims are not seen merely as an informant or witness of prosecution but they are holders of such procedural rights which can move the machinery of criminal justice on their own. But still the country hope for a comprehensive scheme for victims of crime on the line of legislations enacted in other countries which recognise victim participation at all stages of the criminal process.