The aim of this project is to explore and analyse the role of the victim during criminal proceedings. The project aims at analyzing the interaction of the victims with the constituent elements of the criminal justice system ie. the police, lawyers and cou

The police requires the moral support and cooperation of the victim to prepare the case for the prosecution before the court in addition to tracing and apprehending the offender. The victim is expected to be able to give a detailed physical description of the offender and to narrate the facts and circumstances in which the crime took place. The victim may also be asked by the police to identify the offender in an identification parade.

Victims often complain that the police are unhelpful. Unhelpful here means that the police are officious, accuse the victim and show no empathy or do not believe the victim. The most common problems suffered by most of the victims while reporting an offence is the absence of receptive and sympathetic attitude on the part of the police towards the victim who has come to the police in a state of tension caused by the trauma of the offence that has been committed against him. Occasionally, in addition to the unhelpful attitude, the harassment of the victim by the police is not an uncommon feature.

Thus the police must get rid of this unhelpful attitude towards victims because if the victim gets disillusioned with the criminal justice system after meeting the police he may lose faith in the system and refuse to cooperate and this would lead to the collapse of the criminal justice system.

Investigating the Offence

Once an offence has been reported to the police the focus for determining subsequent action moves from the victim to the police. The police will be concerned with gathering evidence so that the accused can be prosecuted. The victim will be involved in or concerned with many of these activities and decisions but it is the police who will usually set the timetable and control what is happening.

In criminal offences the victim is usually a major prosecution witness. The evidence that he can provide will include not only his statement of what happened, but also evidence of the injuries he sustained, identification evidence as to the offender, samples for forensic analysis and evidence as to the place of the offence.

During the investigation process victims want to know all sorts of details: whether the offender is caught, what the charges are, whether the offender has been released on bail, what would happen next, what the victim would be required to do and when. Unfortunately though the victim is vital to the police throughout the recording, detection and investigation of the case the police are not concerned to fulfill the victim’s need to be informed, occasionally consulted and to be treated with dignity and respect. Thus there are two contradictory facts on the role of the victim- his practical importance to the prosecution case and an ignoring of his attitudes and experiences by those involved in recording and investigating offences- the police.

Victim and the Court

Whether an offender is released on bail or whether he is remanded in custody is of great interest to victims. However this information is very rarely furnished to the victims. The victims generally have little idea of the progress of the case through the various pre-trial appearances. Victims are usually almost completely uninformed about the progress of their case prior to the trial. They only information they may receive from official sources- the summons is itself found to be uninformative, confusing and adds to the victim’s worry.

For those victims who attend court, the experience is not confined to answering questions in the witness box or listening to what is being said. There are the contracts they may have with the police and the courts when being summoned to come to court. There is the experience of waiting outside the courtroom and the contact they may have there with police officers, prosecution solicitor or counsel, or the offender. Even after giving evidence, there is the problem of obtaining witness expenses and whether these meet the costs of victims in attending court.

The victim is not considered to have any special interest in the proceedings, compared to any other prosecution witness. In the courtroom too he feels manipulated by the prosecution and the defence who use the structure of formal questioning to present their own view of the offence.

The changes in the criminal justice system necessary to come close to the present expectations of victims are not major or structural ones. They are primarily attitudinal.   The victim’s problem in participating in the criminal justice system may be seen as due to his lack of status, or even accepted role within that system. If the victim is a non-person in the eyes of the professional participants, at least as far as the day to day functioning of the system is concerned, then he will not be informed or consulted as a matter of course. Even if those participants accept the desirability of retaining his goodwill (because of his evidential usefulness), any information flow will tend to be one way. The victim will be told what is deemed necessary or helpful to tell him. It is only if the victim is seen as being an important partner in the criminal justice system that the flow of information will automatically become two-way and consultation will occur. For example, the victim might have the right to know the outcome of the case and be able to determine how this information is presented to him.

However any changes intended to meet present victim expectations would involve teaching the professional participants in the criminal justice system that the victim is to be treated courteously, kept informed and consulted about all stages of the process. They involve treating the victim as a more equal partner. That, however, would imply a greater emphasis on the role of the victim, and potentially, less emphasis on the role of the offender and that of the legal profession. This might include a shift in working practices of the professional participants that might initially appear to involve more work, more difficulty and more effort but, paradoxically, may result in easier detection, a higher standard of prosecution evidence and fewer cases of prosecution failure.

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• Victims Of Sexual Offences

The grievances of victims of sexual offences especially rape are many and they take a number of forms. When the victim of rape approaches the police station she enters into the gateway of the criminal justice system where she is faced with interrogation, which leads to medical examination in an environment where she feels uneasy because the incident of rape is again brought on the surface of the mind of the victim, which is followed by harassment, delay and adjournment in repeated court appearances, insult at the hands of the defence lawyer and loss of earnings. Thus the path to justice for a rape victim is slow and painful. In the adversarial system of trial the judge plays a passive role and often exhibits his helplessness in checking lengthy cross examination of the victim during which she is insulted and embarrassed by the defence lawyer whose only concern usually is acquittal of the accused. Thus, the trauma of rape is followed by the trauma of narrating facts to the police during investigation, which is again followed by the trauma of undergoing an intimate medical examination and which culminates in the trauma of the court- room when the victim is subjected to cross- examination.

The Supreme Court of India has taken note of the flaws in the system and through its decisions has been consistently trying to rectify these flaws by enabling the victims of rape to play a major and effective role during criminal proceedings and at the same time protecting their rights and interests so that the path to justice for the victim of rape is smooth and speedy.

Right of Privacy of Rape Victims

In State of Punjab v. Gurmeet Singh the Supreme Court of India held that the trial of rape cases must be done invariably in-camera rather than in open court as envisaged Section 327(2) of the Code of Criminal Procedure, 1973. The Supreme Court also pointed out that it would be unlawful for any person to print or publish any matter in relation to the proceedings of such cases except with the previous permission of the judge of the court as per provisions of Section 327(3) of the CrPC. The further dictum of the Apex Court was that wherever possible, it would be desirable that sexual assault cases on women are tried by lady judges so that the victim can make her statement with greater ease and assist the courts to properly discharge their duty without allowing the truth to be sacrificed at the altar of rigid technicality while appreciating evidence in such cases.

Award of Interim Compensation to the Victims of Sexual Offences- Pending Final Decision of the Criminal Case

In Bodhisattvwa Gautam v. Subhra Chakraborty it was alleged by the complainant Subhra that the accused Gautam not only induced her to cohabit with him by giving her a false assurance of marriage, but also fraudulently went through a certain marriage ceremony with her with the full knowledge that it was not a valid marriage ceremony and thereby dishonestly made the complainant to believe that she was the lawfully married wife of the accused. It was further alleged that the accused committed an offence of miscarriage by compelling the complainant to undergo abortion twice against her free will. The judicial magistrate took cognizance of the offence under Sections 312, 420, 493, 496, 498A of the Indian Penal Code and issued summons to B.Gautam for facing the trial. Goutam in the mean time moved an application in the Guwahati High Court under Section 482 of the CrPC for squashing all the criminal proceedings initiated by Subhra. The Guwahati High Court rejected the application and thereafter Gautam approached the Supreme Court by way of special leave petition in order to squash the criminal proceedings initiated against him. On consideration of the facts and circumstances of the entire case, the Supreme Court not only dismissed the appeal preferred by Gautam but also issued suo motto notice to Gautam calling upon him to show cause as to why he should not be asked to pay reasonable amount of compensation for maintenance of Subhra during the pendency of the prosecution pending against him. On consideration of the affidavit submitted by Gautam and after giving him an opportunity of hearing, the Supreme Court, directed him to pay to Subhra Chakraborty a sum of Rs 1000 every month as interim compensation during the pendency of the criminal case in the court of the judicial magistrate (First Class), Kohima, Nagaland. He was also directed to pay arrears of compensation at the same rate from the date on which the complaint was filed against him in the court of the Judicial Magistrate (First Class), Kohima by Subhra Chakraborty.

The logic behind the order of interim compensation by the apex court is that Subhra’s most cherished fundamental right to live with human dignity was violated by Gautam. According to the Supreme Court fundamental rights can be enforced even against private bodies and individuals. The law laid down by the Supreme Court is that it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the court as the court can itself take cognizance of the matter and proceed suo motto or on a petition of any public spirited individual.

However this decision of the Supreme Court to award interim compensation was criticized on the ground, inter alia, that the order to award interim compensation during the pendency of the criminal case against the accused destroyed the presumption of innocence in favour of the accused and thus violated one of the fundamental tenets of criminal law. Perhaps the Court was over zealous to protect the rights of the victim and to restitute the victim.

In Gudalure M.J Cherian v. Union of India the Supreme Court directed the Government of Uttar Pradesh to suspend the police officers and the medical officer who had conducted investigation of a rape case in a perfunctory manner and also to initiate disciplinary action for major penalty against them under their respective service/conduct rules. The Apex court also directed the State of Uttar Pradesh to pay a sum of Rs 250000 as compensation to each of the victims of rape and said that the state government may recover the compensation amount from the officers who were held guilty of lapses amounting to misconduct in the process of investigation of the rape case.

Assistance to Victims of Rape

In Delhi Domestic Working Women’s Forum v. Union of India the Supreme Court highlighted the grievances of rape victims and issued the following directions to the Central Government for assistance of rape victims:

• 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, psychological counseling 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 represents her till the end of the case.
• 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.
• The police should be under a duty to inform the victim of her right to representation before any questions are asked to her and the police report should state that the victim was so informed.
• A list of advocates willing to act in these cases should be kept at the police station for the victims, who did not have a particular lawyer in mind or whose own lawyer was unavailable.
• 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 authorized to act at the police station before leave of the court was sought or obtained.
• In all rape trials anonymity of the victims must be maintained as far as necessary.
• 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 traumatized to continue in employment.
• Compensation to the victims should 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.

These directions show that the Apex Court is sensitive to the needs of the victims of sexual offences. It is hoped that these directions will be implemented by the Government of India in letter and spirit. Such implementation will address the grievances of rape victims and enable them to play an effective role during criminal proceedings and also enable the criminal justice system to protect the rights and interests of victims (of sexual offences) and to do justice.

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• Compensation To Victims

Compensation to victims is an issue of considerable complexity.  Compensation helps to counter balance the victims suffering and loss. It helps to restore the victim’s place in the community and his rights, which were injured or extinguished in the process of victimization.

United States Senator Mike Mansfield in introducing a bill in the senate to compensate the victims of crime said: “The point has been reached where we must give consideration to the victims of crime- to the one who suffers because of crime. For him, society has failed miserably…Society has an obligation; when the society is not sufficient to prevent a person from being victimized, society then has the obligation to compensate the victim for that failure of protection”

Supporters of victim compensation believe that since the state has the power and right of punishment and rehabilitation of the criminal, it should also take up the responsibility of looking after the victim.

Thus victim compensation must be a priority in each state and an effective scheme to compensate should contain the following elements:

• A compensation plan must be based on the conclusion that the government that has failed in its responsibility of protecting its citizens from crime.
• Compensation must be available to all victims of crime.
• All expenses incurred by the victim such as medical bills and loss of wages etc. must be covered.
• The compensation plan must provide for a speedy system of compensation.

In India there is neither a comprehensive legislation nor a statutory scheme providing for compensation by the state or by the offender to victims of crime. The state generally makes to the victims ex-gratia payment, which is not only ad hoc and discretionary but also inadequate.

The Indian criminal law system does not provide for institutionalized payment of compensation to victim of a crime for any ‘loss’ or ‘injury’- physical, mental or psychological- caused to him by the offender. The Law Commission of India felt that it was ‘unwise’ to create a legal right in favour of the victim to join in the criminal proceedings as a third party to avoid mixing up of civil and criminal proceedings, a confusion of issues and prolongation of trial. It also could not see ‘great advantage’ in providing for ‘duty to make amends for harm caused’ or ‘payment of compensation to the victim of the offence as an additional punishment. It favoured payment of compensation out of fine imposed on the offender.

Section 357 of the Criminal procedure Code, 1973 inter alia, empowers a criminal court, in its discretion, to award compensation to any person for any loss or injury caused by an offence in those cases where ‘fine’ does or does not form a part of the sentence imposed. Section 421 of the CrPC empowers the criminal court passing a sentence of fine, in its discretion, to recover this amount by attachment and sale of any movable property of the offender and/or as arrears of land revenue from his movable or immovable property or both. However the court is not empowered to adopt either of the methods when the offender has undergone the whole of the imprisonment awarded in default of payment of the fine except for special reasons to be recorded in writing or where it has made an order for payment of expenses or compensation out of the fine imposed under Section 357.

By virtue of Section 431, CrPC, Section 421, CrPC, along with its proviso is equally applicable for recovery of a specified amount (which does not form part of the sentence) ordered as compensation under Section 357(3) of the CrPC.

Compensation to victims is also available under Section 5 of the Probation of Offenders Act, 1958. However in practice the courts have not paid much attention to this provision and the application of this section to pay compensation to victims has been extremely rare.

It is thus evident that the legislative response to compensating victims of crime is not impressive. The legislative scheme of award and payment of compensation to victims of crime neither makes it mandatory for the courts to compensate the victims nor creates any legal right to be compensated in favour of the victims. It entirely leaves it to the will of the court to compensate victims of crime and to initiate and move legal machinery to recover the fine, out of which compensation is ordered, or the specified amount of compensation from the offender to pay it to the victims of the offence.

It is to be noted that courts in India have hardly invoked their statutory (discretionary) powers to compensate victims of crime. The Law Commission of India has not only admitted the fact that courts in India are ‘not particularly liberal’ in utilizing these provisions but also observed that “it is regrettable our courts do not exercise their statutory powers under this Section as freely and liberally as could be desired”.

Referring to and commenting on sub-section 3 of Section 357, Code of Criminal Procedure, the Supreme Court observed: “It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do some thing to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes.”

The Supreme Court also added a new dimension to the concept of victim compensation when it directed State Governments to take appropriate measures for deduction of the sum out of the earnings of the prisoners, which can be utilized for compensating the victims.

Thus the courts should follow the dictum of the Supreme Court and award compensation to victims whenever necessary in order to protect the victim and to ensure that he can play an effective role in the criminal justice system.

Compensation under the Constitution of India

Article 21 of the Constitution of India guarantees the fundamental right to life and liberty to any person in India and by interpretation of this right the Supreme Court of India has developed a compensatory jurisprudence keeping in view the world trends of criminological thinking to pay attention not only to the accused, but also to the victims.

The process of recognition of right of a person to claim compensation for illegal detention was started from the case of Rudal Shah v. State of Bihar. In this case the petitioner was detained illegally in Ranchi Jail in Bihar for 14 years after his acquittal by the court. The Supreme Court recognizing the petitioner’s right to claim compensation for illegal detention by writ petition under Article 21 awarded a total sum of Rs 35000 by way of compensation. In delivering the judgment Chief Justice of India Y.V Chandrachud observed: Article 21 which guarantees the right to life and liberty will be denuded of its significance content if the power of this Court were limited to passing orders of relief from illegal detention. One of the telling ways in which the violation of this right can be reasonably prevented and due compliance with the mandate of Article 21 secured is to mulct its violation in the payment of monetary compensation.

In Sebastian M. Hongray v. Union of India two women filed a writ of habeas corpus to produce their husbands who were missing and alleged to have been murdered. The authorities failed produce them, the Supreme Court directed respondents to pay Rs one lakh to each of the wives of missing persons.

Another important area of awarding compensation under the constitution is for death in  jail. In a far reaching judgment on human rights in Challa Ramakonda Reddy v. State the Andhra Pradesh High Court awarded Rs 144000 as damages against the State Government for the death of an undertrial prisoner in jail who was killed by his rivals, who hurled bombs into the cell. The Court rejected the defence of the State that that the incident was in exercise of sovereign function. The Court held that the concept of sovereign power is not an exception to the right to life. Speaking for the bench Justice Jeevan Reddy said: We are perfectly aware that the principle adumbrated herein opens up a new vista for individual claims for damages against the state. It may add to the present day difficult financial position of the state, but we are of the opinion that such a remedy is not only statutory but essential for good government and for ensuing Rule of law.

Thus from these decisions it can be said that the High Courts and the Supreme Court have now accepted and started propagating to have a compensatory criminal jurisprudence in our criminal justice system. But this is limited within Articles 20, 21 and 22.  The initial hesitation of the courts to recognize the government’s liability in discharge of sovereign function as held in Kasturi Lal v. State of UP has now been overruled. The Supreme Court has started granting compensation for any loss or injury caused to the victims due to the negligence of government or its servants or agents.

Thus compensation to the victim is a major concern of the criminal justice system and this focus on victim compensation reflects the model of restorative or compensatory justice which is being adopted by criminal justice systems the world over. This focus on victim compensation has gone a long way in enhancing the role of the victim in the criminal justice system and in making sure that the victim plays a telling role during criminal proceedings.

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• Remedies For Victims- Ways To Enhance Role Of Victims And Enable Them To Play An Effective Role In The Criminal Justice System

The present Code of Criminal Procedure does not recognize the right of the victim to take part in the prosecution of the cases instituted on the basis of police report. The victim is merely a witness. He has no right to prefer appeal against the order of acquittal of the accused. The state reserves the discretion not to prefer appeal and also to withdraw from the prosecution even in the case of heinous offences. The state exercises this discretion without even consulting the victim. This discretion vested in the state is often misused on political considerations. Thus the victim becomes the victim of the criminal justice system also when politically motivated investigating and prosecuting agencies show lack of interest or apathy in the matter of investigation or prosecution on extraneous considerations. The procedural law should be suitably amended to allow victims to participate in every stage of the criminal justice system. While making these much needed amendments the following areas must be considered and the following suggestions must be implemented in order to enhance the role of the victim in criminal proceedings and to give him a major role in the criminal justice system.

Participation of Victims

The Code of Criminal Procedure can be amended to make salutary provision for participation of the victim during the stage of investigation and trial of the criminal cases instituted on the basis of a police report. The government may consider the proposal of giving free legal aid to the victims during the stage of investigation and trial of criminal cases instituted by the state. By way of amendment to the CrpC rights can be conferred on the victims to engage lawyers of their choice, whose opinion will prevail over the opinion of the public prosecutor in case of conflict and also to prefer appeal against the order of acquittal of the accused.

Information to Victims

Owing to ignorance of law or lack of sensitivity, many police officers at the police station level do not inform the victim of the action taken by the police relating to the commission of the offence reported to the police station as per provisions of Section 173(2)(ii) of the Code of Criminal Procedure, 1973. Nor is there any statutory provision to inform the victim of the progress of the case during trial by the prosecution. The CrPC can be amended in order to give rights to the victims to know the progress of the case in the court through the prosecution. The police should also inform the victim about the action taken by them in pursuance of the FIR. It is pertinent to point out the innovative method of giving information to the victim, introduced by the Supreme Court, before accepting the final report submitted by the police to the court. The Supreme Court has directed the judicial magistrates to give an opportunity to the victim to be acquainted with the result of the police investigation and also to raise objections if any before discharging the accused on the basis of the final report submitted by the police under section 173 of the Code of Criminal Procedure. The dictum of the Apex Court must be followed rigorously by the magistracy in order to keep the victim informed of the result of the investigation of a criminal case initiated by him.

Treatment of Victims as witnesses

Interrogation of the victims in general and the victims of sexual offences in particular should be done by the police in a dignified manner and by following the procedure of law ie. without calling the female victims and male victims below the age of 15 years to the police station for the purpose of any interrogation as laid down in Section 160(1) of the CrPC. The government should provide sufficient funds to the police and courts for payment of traveling allowance, pocket money allowance and professional loss to the victims appearing as witnesses whether in court or in the police station. The government should also set up sufficient number of courts so that the pending criminal cases are disposed of within a period of three years. The magistrates and judges should be trained in the art of court management and should be able to control lengthy cross-examination by way of rejecting irrelevant questions.

Medical Assistance

The victims of offences to the body and accident victims need immediate medical assistance. In a public interest litigation the question arose whether every member of the medical profession has the obligation to extend his services with due expertise for protecting life. In this case, the doctor avoided his duty to help an injured scooterist on the plea that it was a medico-legal case and ultimately the injured scooterist succumbed to his injuries before getting medical assistance in another hospital. The Supreme court in this case laid down that whenever a person in the medical profession is approached for professional assistance, it is his obligation to render all help which he can and if the case needs better assistance he must make all efforts to ensure that the victim reaches the proper expert as early as possible. The practice of certain government institutions and private practitioners to refuse even primary medical aid to victims and referring them to other hospitals, because it is a medico-legal case, is violative of the Code of Medical Ethics framed under section 33 of the Indian Medical Council Act, 1956. The members of the medical profession must be persuaded and motivated to follow the law of the land laid down by the Supreme Court.

Security by rejection of bail

The provisions relating to anticipatory bail in the CrPC must be amended as they are being misused by the rich and the powerful. Anticipatory bail should be limited to a short period. The courts must be very cautious before granting bail to the accused, who are influential members of the society and who may abscond during the trial. The law should be amended to give rights to the victims to approach the court for cancellation of bail of the accused who threaten the victims during the pendency of the case in court.

Protection of privacy of Victims of Sexual Offences

Women police officers should take up the work of interrogation of victims of sexual offences in general and rape in particular. Where women police officers are not available the victims of rape should be interrogated at their residence or in the presence of their friends and relatives. Similarly, the medical examination of the victims of rape should be  done in an atmosphere where the victim is made to relax and to actively participate and cooperate during medical examination of the intimate parts of the body. Wherever possible female judges and public prosecutors should preside over courts where trial of sexual offences takes place and conduct trial of sexual offences respectively. The provision for in camera trial must invariably be adopted by the presiding officers of the courts where sexual offences are tried. The anonymity of the victim must be maintained during all stages of the criminal justice system.

Return of Property

Many a time, the victims of property offences do not get back their property even when the same is recovered by the police during investigation. The procedure for  return of property is laid down in the CrPC. The fact of congested Malkahanas in the police stations and in the courts indicates that the properties seized by the police during investigation are not returned to the victims for reasons like lack of awareness on the part of their rights or lack of initiative on the part of the investigating officers and the public prosecutors. Even when the orders are passed by the courts suo motto for disposal of property on conclusion of property, the order is not communicated to the respective police station by the prosecutor for proper compliance. The victims must be made aware of their rights to get their property back not only on completion of trial of the criminal case, but also during the stage of investigation and during pendency of the trial of the criminal case in the court.

Compensation to Victims

In order to establish an effective system for compensation of victims the following steps are recommended:

• The CrPC particularly Section 357 be amended suitably so that courts may award compensation in any offence to the victims, to be paid by the offender.
• There should be no fixed limit of compensation as in Section 358 of the CrpC. It should be left to the discretion of the court considering the facts and circumstances of each case and the capacity to pay of the offenders.
• Every court should be authorized to pay compensation to victims of crime out of fines collected by the respective court in cases where the victim claims compensation.
• In every case of releasing an offender under the Probation of Offenders Act, 1958 the provision of giving compensation to the victim should be made compulsory or reasons must be given justifying non-compliance with the provision.
• Judicial officers should be oriented with modern trends of assistance and compensation to victims in the sentencing process.

Victim’s Role during the Sentencing Process

The victim should be allowed to make a statement during the sentencing phase. In this statement he should be able to offer testimony about the physical, mental, emotional, social, and/or economic harm caused by the crime. The victim may also be allowed to comment on what sentence the offender should receive.

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• Role Of Victim In Criminal Proceedings: Position In The United Kingdom

Traditionally victims of crime have been the forgotten people of the criminal justice system The English Criminal Justice System has woken up to this fact and has been making efforts to sensitise the system towards the victim and to protect the rights of the victim and to enable him to play an effective role in criminal proceedings.

In recent years the following improvements have been made:

• Victim Support is a nationwide non-governmental organization, which since 1974 has provided through its local support schemes, information advice and emotional support for victims of crime. More than 10000 volunteers are involved in assisting over one million persons per year. Local groups receive referrals from the police on a daily basis and visit victims (with their consent). Most contacts are short term although some extend to supporting the victim through their experiences in court.
• There is anonymity for rape victims from the moment of the allegation, whether or not any proceedings follow, and for the rest of her life.
• Partly in recognition of the impecuniosity of the offenders of many offenders, victims are entitled to compensation from the Criminal Injuries Compensation Board for serious personal injuries they have suffered as a result of crime.
• Wherever appropriate the interests of the victim are considered in any decision while considering whether it is in public interest to prosecute. In fact there had been some concern over decisions of the Crown Prosecution Service not to prosecute and thus victims and their families launched private prosecutions.
• Wherever practicable the police tell the victim of a decision to caution the offender and remind the victim of how he may be able to obtain compensation by a civil court action. Victims are given a name and a contact number of a particular police officer or crime desk who can be contacted for information about the progress of the case.

The Royal Commission on Criminal Justice noted the need to improve the sensitivity of the criminal justice system towards victims and, amongst other things, recommended that as far as practicable “victims should be kept informed of the progress and outcome of cases, including decisions not to prosecute and, in some cases, the results of bail applications or successful appeals” by the accused.

A victim of crime may seek a financial remedy by bringing an action against the defendant in an entirely separate civil trial where the standard of proof is lower than in a criminal matter, being on a balance of probabilities. For example a woman was awarded fifty thousand pounds as damages by a jury in a civil claim for trespass to the person after the Crown Prosecution Service decided not to press charges of rape against the defendant.

The Home Office of the Government of the United Kingdom has published a Victim’s Charter, which aims to explain what happens after an offence has been reported to the police and the standards of service a victim should expect. It acknowledges that the way a victim is treated cannot make up for what the victim has suffered but states as its aim to make sure that the unpleasant effects of crime are not made worse by what happens later. The aim of the charter is to treat victims of crime fairly and courteously and to provide a good service.

The first part of the Charter sets out details of what the victim can expect when reporting a crime. These expectations are as follows:

• The victim can expect that a reported crime will be investigated and to receive information about what happens. There are several elements to this, including the fact that the fact that the police will respond quickly to the report, do their best to catch the person responsible and keep the victim informed of any significant development in the case such as any decision to drop or alter charges, any trial date and the final result of any court proceedings. Victims of serious crimes, such as the family of a murder victim or a victim of rape can expect special and particular help.
• The victim can expect to have the chance to explain how the crime has affected him or her and have his or her interests taken into account. To this end, the police will ask the victim about details of any loss, damage or injury and about any fears of further victimization. The victim’s interests also include such matters as the likely release date of an offender who has committed a serious crime.
• The victim can expect to be treated with respect and sensitivity if he has to go to court. To make giving evidence easier, the victim may, among other things, ask to see the courtroom before the trial, have a friend or relative accompany him to court, and, if possible, wait separately from any other witnesses. Further the charter makes sure that witnesses do not have to wait for more than two hours before giving evidence. Special provisions are made for dealing with child witnesses.
• The victim can expect emotional and practical support, which will come from Victim Support. The Charter also informs the victim about the Criminal Injuries Compensation Scheme and the power of a court to make a compensation order.

The second part of the charter deals with the interaction of the victim with the different stages of the criminal process. The following are the issues dealt with in this part:

Help from the police- This reiterates that the police will reiterate the crime as quickly as possible and are the main point of contact in relation to the case.

Compensation- The power of the Court to make compensation orders and the work of the criminal Injuries Compensation Board is outlined.

When a suspect is caught- The decision of the police to caution the offender or to charge them with the offence is explained, as is the work of the Crown Prosecution Service.

Being a witness- The difference between the Crown Court and the Magistrate’s Court is briefly explained, and the fact that the victim should inform the police if there are any days on which he or she would be unable to attend the court.

Help at Court- This section reassures the victim as much practical help will be given as possible in terms of finding the way around the court building, but points out that no one will be able to discuss with the victim the details of the evidence he or she will give.

Special Cases- The Charter recognizes the very special need of victims such as children and the victims of sexual assault and makes special provisions for them.

The Trial- A victim who has to give evidence is reminded that they may be accompanied by a friend or a representative of Victim Support if they wish. Little is said about the trial process itself, perhaps because it is envisaged that a victim will visit a court before the trial and have some idea of what is involved. However, the sentencing process is briefly outlined, including the defence’s plea in mitigation, pre-sentence reports and the power of the Attorney General to refer unduly lenient sentences to the Court of Appeal.

After the case- This section relates to victims who are still worried about their safety, and refers them to the police for advice and practical assistance.

Information about the release of offenders- Within two months of the passing of a life sentence or in other cases which involve a serious sexual or violent offence, the victim will be contacted by a member of the Probation Service to inform him about rules relating to the release of prisoners and to establish whether the victim wishes to be informed of any plans for the release of the offender. Any concerns that the victim expresses will be taken into account by the Probation Service in making plans for the supervision of released prisoners.

Thus the Victim’s Charter is a great step forward taken by the British Criminal Justice System with respect to protecting the victim and enabling him to play an effective role in criminal proceedings. However it is imperative that this Charter should be implemented by the system to the fullest extent possible and the various functionaries of the criminal justice system should perform their role sin accordance with the principles and guidelines laid down in the Charter.

The improvements that have taken place in the British Criminal Justice System are creditworthy. The concept of a private prosecution is unknown in India and the fact that such prosecutions have taken place in England after the CPS decided not to prosecute reflects the extent of empowerment of victims. Achievement of total anonymity for rape victims is another laudable development. The Victim Support Organisation and the Compensation Scheme are also major achievements of the British Criminal Justice System, which will go a long way to improve the role and position of the victim. The Victim’s Charter and its proper implementation will achieve the objective of the Royal Commission on Criminal Justice to sensitise the Criminal Justice System towards the victims.

In India too, though several steps to assist victims and to enable them to play a more effective role in the criminal justice system have been recommended and even directions to the same end have been issued by courts, no major developments have taken place as there has been no proper and effective implementation. Perhaps the Indian Criminal Justice System should take a leaf out of the British book and enact and implement similar schemes and programmes as Victim Support and the Victim’s Charter in order to remove the plight of victims in India.

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• Conclusion

The grievances of the victims in the Criminal Justice System in India and the hurdles, which diminish the role of the victim and prevent him from playing an effective role in criminal proceedings, can be summarized as follows:

• Inadequacy of law in allowing the victim to participate in the prosecution in a criminal case instituted on a police report.
• Failure on the part of the police and prosecution to keep the victims informed about the progress of the case.
• Inconvenience of the victim during interrogation by the police and lengthy court proceedings.
• Lack of protection when the victims are threatened and vilified by the offenders who are released on bail during investigation or trial of the cases.
• Insult caused to the victims of sexual offences and the indignity they have to suffer and the trauma they have to undergo as their case passes through the different stages of the criminal justice system.
• Failure to get back the property seized or recovered by the police during investigation of cases.
• Want of prompt medical assistance to the victims of body offences and victims of accidents.
• Lack of provision in law for payment of compensation to the victims.

Thus in order to address these grievances and to enable victims to overcome the hurdles present in the system so that they can play an important role during criminal proceedings the following principles must be kept in mind and practised while dealing with victims in the criminal justice system:

• Victims should be treated with courtesy, compassion and with respect for their dignity and privacy and should suffer the minimum of necessary inconvenience from their involvement with the criminal justice system.
• Victims should receive, through formal and informal procedures, prompt and fair redress for the harm, which they have suffered.
• Information regarding remedies and the mechanisms to obtain them should be made available to victims.
• Information should be made available to victims about their participation in criminal proceedings and the scheduling, progress and ultimate disposition of the proceedings.
• Where appropriate, the view and concerns of victims should be ascertained and assistance provided throughout the criminal process.
• Where the personal interests of the victim are affected, the views or concerns of the victim should be brought to the attention of the court, where appropriate and consistent with criminal law and procedure.
• Measures should be taken when necessary to ensure the safety of victims and their families and to protect them from intimidation and retaliation.
• Enhanced training should be made available to sensitize criminal justice personnel to the needs and concerns of victims and guidelines developed, where appropriate, for this purpose.
• Victims should be informed of the availability of health and social services and other relevant assistance so that they might continue to receive the necessary medical, psychological and social assistance through existing programs and services.
• Victims should report the crime and cooperate with the law enforcement authorities.

In the USA an amendment to the constitution has been proposed which guarantees the victims certain rights in order to enhance their role during criminal proceedings and to make the victim a major player in the criminal justice system.

The Victim’s Bill of Rights Amendment seeks to elevate crime victims to the same constitutionally protected status as criminal defendants. The Amendment would give victims seven constitutionally protected rights: (1) the right to be informed of the proceedings; (2) the right to be heard at certain crucial stages in the process; (3) the right to be notified of the offender's release or escape; (4) the right to proceedings free from unreasonable delay; (5) the right to an order of restitution; (6) the right to have the safety of the victim considered in determining a release from custody; and (7) the right to be notified of all these rights. 

In India too the time has come to enact a legislation or to amend the Code of Criminal Procedure along the lines of the American Victim’s Bill of Rights Amendment. Such a legislation or amendments would give legal rights to victims in India which would be protected by the courts. It would ensure the victim of total participation in the criminal justice system and enable him to play an extremely important and effective role in criminal proceedings, which would not only serve his interests but the interests of the criminal justice system as a whole.

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• Bibliography

A. Articles

1. Charles Pollard, “Victims and the Criminal Justice System: A New Vision” [2000]1 Criminal Law Review 5.
2. Cornelius Prittwitz, “The Resurrection of the Victim in Penal Theory” 1999 Buffalo Criminal Law Review 109.
3. Dr. M. Sammaiah, “Women as Victims of Rape- Problems and Perspectives” 2000 Criminal Law Journal 29.
4. Dr. N.K Chakrabarti, “Victim Assistance and Compensation to Crime Victims Under Indian Criminal Justice System” Legal News and Views, Vol.14(5), (2000) at 11.
5. Jennie L. Caissie, “Passing the Victim’s Rights Amendment: A Nation’s March Towards a More Perfect Union” 1998 New England Journal on Criminal and Civil Confinement 647.
6. K. Venkataraman, “Inadequacy of Section 357 Criminal Procedure Code” 2000 Criminal Law Journal 9.
7. K.I Vibhute, “Victims of Rape and Their Rights: Legislative and Judicial Responses in India” 1999 Cochin University Law Review 37.
8. Lynne N. Henderson, “The Wrongs of Victim’s Rights” 1985 Stanford Law Review 937.
9. Surya Deva, “Juxtaposing Prisoners’ Wages and Compensation to Victims: A Critique” 2001 Criminal Law Journal 28.
10. V.V Devasia, “Perspectives in Victimology” 1996 Cochin University Law Review 236.

B. Books

1. Ahmad Siddique, Criminology-Problems and Perspectives (Lucknow: Eastern Book Company, 1997).
2. Bharat B. Das, Victims in the Criminal Justice System (New Delhi: APH Publishing Corporation, 1997).
3. Dr. K.N Chandrashekharan Pillai, R.V Kelkar’s Code of Criminal Procedure (Lucknow: Eastern Book Company, 2001).
4. Inns of Court School of Law, Criminal Litigation and Sentencing (London: Blackstone Press Limited, 1999).
5. Jane Roberts Chapman and Margaret Gates, The Victimization of Women (California: Sage Publications, 1985).
6. John Hatchard, Barbara Huber and Richard Vogler, Comparative Criminal Procedure (London: British Institute of International and Comparative Law, 1996).
7. R. Deb, Principles of Criminology, Criminal Law and Investigation (Calcutta: S.C Sarkar and Sons, 1991).
8. V.N Rajan, Victimology in India- Perspectives Beyond Frontiers (New Delhi: Ashish Publishing House, 1995).

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