A ‘Victim’, as per Section 2(wa) of the Code of Criminal Procedure(Amendment) Act, 2008 is 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’ also includes his or her guardian or legal heir.
Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim.
Clause 4 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power declares that the victims should be treated with compassion and respect for their dignity. They are entitled to the access to the mechanism of justice and to prompt redress, as provided by national legislation for the harm that they have suffered.
The victim of a crime sets the machinery of criminal investigation into motion by giving information to the police and thereby registration of FIR. Section 154 CrPC places an obligation upon the police authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in charge of a police station. The victim as an informant is entitled to a copy of the FIR forthwith free of cost.
Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
A police officer is authorised to investigate such cases without the order of a Magistrate, though, in terms of Section 156(3) CrPC the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to the police, to exercise their plenary power of investigation under that section. This would result in a police report/chargesheet under Section 173 CrPC, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure.
Once the investigation is conducted in accordance with the provisions of CrPC, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence. However, in the eventuality where the report states that no offence appears to have been committed, the Magistrate has three options: (a) he may accept the report and drop the proceedings; (b) he may disagree with the report and take the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process; (c) he may direct further investigation to be made by the police. If the Magistrate is of a view that relying on the closure report he may drop the proceedings, then the victim/ complainant has a right to file a ‘Protest Petition’ before the magistrate stating that the investigation has not been conducted properly by the police authorities and there are lacunas in the same and therefore, the matter may be further investigated. Furthermore, in a situation where the Magistrate dismisses the protest petition then the victim/ complainant has a statutory right to approach the Hon’ble High Court or the Court of Sessions by invoking the revision Jurisdiction as given under section 397 CrPC.
The victim has a say in the grant of bail to an accused. Section 439(2) CrPC, as interpreted by the Courts recognizes the right of the complainant or an aggrieved person to move to the High Court or Court of Sessions for cancellation of a bail granted to the accused. Also compounding of an offence cannot happen in absence of the victim/ complainant.
The position of victims who happen to be women and children needs special attention. Particularly the women and girl child who are victims of rape and sexual harassment greatly need strict laws for their protection. Rape of a girl child of an immature age has a greater traumatic effect which often persists throughout her life leading to various disorders, both physical and psychological. The effects of rape on the victim are multidimensional. She would be looked down upon by the society including her own family, relatives, friends and neighbours. Family honour would be at stake leading to uncertainty in respect of the future of her brothers and sisters, if any. Thus rape would almost inevitably and invariably result in mental torture and suffering to the victim.
While deciding a public interest litigation concerning the pathetic plight of four domestic servants who were subject to indecent sexual assault by seven army personnel, the Hon’ble Supreme Court in Delhi Domestic Working Womens Forum’s case (1995) 1 SCC 14 laid down certain broad parameters in assisting the victims of rape which reads as follows:
(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
Section 164A CrPC provides medical examination of a rape victim. The police authorities are under statutory obligation when an offence of committing rape or attempt to commit rape is under investigation, to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. Furthermore, the police authorities also has to record the statement of the victim as a material witness to that case under section 161 CrPC. Provided that no male person under the age of fifteen years or woman shall be required to attend the police station for recording of their statement as a witness as their statement has to be recorded by the investigating officer at a place in which such male person or woman resides{ S. 160 (1) of the Code of Criminal Procedure, 1973}. Further proviso to Section 157 (1) CrPC mandates that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.
While the victim of a crime may move the government to appoint a special prosecutor for a given case {24(8) of the Code of Criminal Procedure (Amendment) Act, 2009}, there is no scope under CrPC for a victim or the informant or her lawyer to directly participate in the trial. S 301(2) CrPC mandates that a private person may instructs a pleader to prosecute any person in any Court, however, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
The victim’s right of participation in the post trial proceedings stands on a better footing. An appeal against order of acquittal of an accused can be preferred with the prior leave of the High Court both by the victim as well as the state government. The right of a victim’s near relative, who was not a party to the proceedings, to file a Special Leave petition under Article 136 of the Constitution of India challenging an order of acquittal has been duly recognized by the Hon’ble Supreme Court of India in P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141.
CHALLENGES FOR VICTIMS IN INDIA
In the process of prevention of victimization and the protection of victims, there are many challenges faced in India. Lack of a separate law for victims is one of the biggest challenges. Another biggest challenge which needs critical evaluation and deterrent laws is the corruption in the Indian Criminal Justice System. Corruption by public officials especially the police and other investigating agencies erode the entire health of the society and victimize people in all sections of the population. Despite of the fact that many steps to reduce the level of corruption and accumulation of illegal wealth have been taken by the Government still stern laws are needed for its proper implementation.
CHANGES THAT ARE REQUIRED IN ORDER TO MAKE THE SYSTEM RESPOND TO THE RIGHTS OF VICTIMS
There is a need for renewal of emphasis and an enhanced sensitivity to the rights of the victims. These rights should be the central concern for those who participate in the criminal justice system and it is time all of us paid greater heed to the plight of the victim.
The UN Declaration recognized four major components of the rights of victims of crime. Access to just and fair treatment, Restitution, Compensation and Assistance. Victims do not receive even a fraction of the protection and defence that is available to the accused in India. Though section 357 CrPC and provisions of Probation of Offenders Act, 1958 provide for payment of compensation to the victim, it offers little relief for identical reasons. Moreover, all these provisions being discretionary with the courts are only meant to do lip services to the victims. Even the victim cannot claim compensation as a matter of right. The constitutional right of a victim of a custodial crime to receive compensation was reiterated by the Supreme Court in Nilabati Behera v. State of Orissa, 1993(2) SCC 746. Although the Hon’ble Supreme Court has passed numerous judgments and laid down various guidelines for the protection of the victim, still there is great need for enactment of a special law, specific to the victims. Measures such as establishment of victim compensation fund, involvement of the NGOs for pro-active participation in the process of implementation Organising awareness campaigns, highlighting the rights of the victims and appealing to the citizens for doing what they may in support of the rights of the victim also needs great attention for providing assistance and relief to the victims of a crime.