DR.

RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

CRIMINAL PROCEDURE CODE

PROJECT ON:

RIGHTS OF THE VICTIMS IN THE CRIMINAL JUSTICE SYSTEM- LEGAL AND

SOCIOLOGICAL ASPECT

SUBMITTED BY: UNDER THE GUIDANCE OF:

PRANAV BHANSALI DR. PREM KUMAR GAUTAM

ROLL NO: 109 ASSITANT PROFESSOR (LAW)

SECTION ‘B’ DR. RAM MANOHAR LOHIYA

B.A. LL.B (Hons.), SEMESTER V NATIONAL LAW UNIVERSITY

“Contents
INTRODUCTION.................................................................................................................. 4
EVOLUTION OF VICTIMOLOGY IN INDIA................................................................... 5
VICTIM AND VICTIMIZATION........................................................................................ 5
THE VICTIM........................................................................................................................ 6
POSITION OF VICTIMS IN INDIA.................................................................................... 9
VICTIMS RIGHTS AS HUMAN RIGHTS........................................................................ 11
VICTIM'S RIGHTS IN INDIA........................................................................................... 12
JUDICIAL APPROACH PRIOR TO THE AMENDMENT.............................................. 14
JUDICIAL APPROACH POST AMENDMENT............................................................... 16
WHO IS A VICTIM?.......................................................................................................... 16
INADEQUATE COMPENSATION................................................................................... 17
RESOLVING THE CONFLICT BETWEEN SECTION 372 PROVISO AND 378(4)..... 18
DO VICTIMS HAVE TO SEEK LEAVE........................................................................... 19
CONCLUSION........................................................................................................................20”
2
“TABLE OF AUTHORITIES

Cases

Chattar Singh vsSubhash& Others 2011 CRL.A.443/2010....................................................... 16, 17

Criminal Appeal (DB) No 582 of 2011................................................................................... 17, 20
Criminal Appeal No. 991 of 2011........................................................................................... 17, 20
J.V. Thakur v. State of Maharashtra, (2009) 7 SCC 104............................................................17, 18
Jagir Singh v. State of Bihar AIR 1976 SC 997............................................................................. 17
MANU/KE/1117/2011 : 2011 (2) KLT 889............................................................................. 17, 18
Ram Phalvs State And Ors. on 28 May, 2015 CRL.A.1415/2012....................................................17
Tata Steel v. Atma Tube Products (2014) 173(1) PLR 1................................................................. 17
Vanaja K.C. V. State of Kerala and Ors ILR2016(2)Kerala713................................................. 17, 19

Statutes

378(4) Criminal Procedure Code, 1973.............................................................................14, 17

Section 2(wa) Criminal Procedure Code........................................................................... 16, 17
Section 378 Criminal Procedure Code, 1973.....................................................................14, 17
Treatises

Criminal Procedure R.V. Kelkar 6th Edition pg 658......................................................... 15, 17

Books

Committee on Reforms of Criminal Justice System 2003.................................................16, 17”

3
 INTRODUCTION

“The offender, the nature of the punishment awarded to him for the offence committed by him, his
reformation and rehabilitation; has always been the cynosure of the criminal justice system. All the
effort is being put in understanding the personality and behavioural patterns of the offender and the
social, political and other factors which contributed towards his criminal behaviour. Hardly any heed is
being paid to the victims of crime. They seem to be the forgotten lot in this whole picture. However in
the recent decades the impact of victimization on the affected persons drew the attention of the
criminologists and criminal law systems across the globe so as to cajole them that the victims needed to
be treated with much compassion as well as their dignity and basic rights must be recognised and
protected. The expression ‘victim of crime’ is simply to mean a person who as a consequence of crime
has suffered physical or emotional harm, property damage or economic loss. The source of the concept
of ‘victim’ is the ancient societies where the victim covered persons or animals put to death as a notion
of sacrifice ordinarily during a religious ceremony in order to quench some supernatural power or
deities. Eventually it was being commonly being put in use for individuals who suffered injuries, losses
or hardships for any reason. Other than victims of crime persons can be victims of accidents, diseases,
natural calamities, social and political problems, war, terrorism, despotism and other forms of
”
injustice.

“Victimology is a sub-discipline of Criminology which is the scientific study of victims of

crime. Academically the term embodies two elements:

• ‘Victim’ which emanates from the Latin word ‘Victimia’.

• Secondly the word ‘logos’ which means a system of knowledge, the direction of
something abstract, the direction of teaching, science and a discipline.”

Until the end of the Second World War, ‘victim of crime’ as a subject of criminological research was
unheard. Albeit, the writings about crime had appeared in the works of criminologists like Beccaria,
Lombroso, Ferri, Sutherland, Garofalo, Von Hentig, Nagel, Henry Ellenberger, Schafer and Wolfgang but
Bejamin Mendelsohn has been given the credit to be the first to study the relationship between the victim
and the offender and together they have been termed as ‘Penal Couple’ by him. The Penal Couple concept
has projected the

1
‘Victimology- Concept and History of Victimology’- Md. Atiqur Rahman (from Institute of Social and
Welfare Research).

4
opinion that there are two partners who contribute to the taking place of a crime. One being the
offender and the second being the victim who spares a chance to the offender to commit the crime.
Thus being a participant in the penal couple the victim must bear some responsibility for the
respective crime. But this concept stands obsolete in the modern victimological studies, being more or
less similar to the theory of ‘Victim Precipitation’ used to portray victim as ‘hapless dupes who
2
instigated their own victimization’.

EVOLUTION OF VICTIMOLOGY IN INDIA

“Before studies on crime victims could be made in India in late 1970’s, studies were there on
victims of dacoit gangs in the Chambal Valley in 1978, victims of motor vehicle accidents
and homicide in 1981. For the first time in 1984, a seminar on victimology was organised in
the University of Madras (Chockalingam, 1985). In August 1992, the foundation of Indian
Society of Victimology (ISV) was laid down with the impetus of dissipating knowledge and
awareness regarding the plight of the victims and marshalling support for the creation of new
law for victims.”

VICTIM AND VICTIMIZATION

“The process of becoming a victim or being victimized is known as victimisation. Since no exact definition
is available it can be simply said that it is relation between the victim and the accused. However the first
theory which indicated victimization was developed by Wolfgang and was popularly known as the ‘Victim
Precipitation Theory’ which suggested the involvement of the victims themselves into the situations
leading to their injuries and deaths thus making the role of victims in the criminal activity a prominent one
ignoring the fact that there may arise a possibility where a victim maybe compelled to participate in the
criminal activity. The impact of victimization can be physical, financial, psychological etc. Victimization
can be categorised into four types namely; primary, secondary, self, and re- victimization.”

• “Primary Victimization is an element which comprises of the effects and

consequences of the crime along with the impact which it has on the victim which
might include physical, financial, emotional and psychological effects.

• Secondary Victimization entails the response of individuals and institutions to the

victims, the way he/she is treated in the society, workplace, and other realms of life. It
may result in the complete denial of the human rights to victims, their dignity and
reputation which they earlier had.

2
Notably used by Mendelsohn, Hentig, and Wolfgang in 1940’s.
5
 • Re-victimization or Repeat Victimization may result either by staying in association
with the offender for a continuous period of time or by staying close to the
concentration of the potential offender.

• Self-Victimization as the name suggests is a category where the victim gets victimized
by committing an act himself by adopting bad habits or by being in a wrong company
etc. which might result into his victimization.”

THE VICTIM
“A question arises that can there be a victimless crime or in simple words that can there be a crime without
a victim. The answer lies in affirmative. A victimless crime is an act which being illegal affects nobody
directly because of the presence of consenting adults. The best examples which can be cited are that of the
prostitution, trespassing, drug consumption, suicide, gambling etc. Instead we can say that these are such
crimes in which the perpetrator himself/herself gets victimised in consequence of the act committed by
them. The concept of victim is an age old concept which casts one’s mind back to ancient cultures and
civilisations. Traditionally the victim of the criminal offence has always been the sufferer. The victim or
the victim’s family in ancient times were allowed to seek revenge and retribution from the either the
offender or from the offender’s family. This tradition from ancient cultures was encoded into the ancient
3
Code of Hammurabi and other Middle Eastern Codes. Restitution to victims and their families was
requisite in the Roman, Germanic and English laws. If there was anyone who was entitled to justice, that
was the victim and the victim’s family and not the state. However the present times inhabit a disparate
scenario and now the victims stand farther at the periphery of the justice whereby the government focuses
on rehabilitation and nature of punishment awarded to the offender rather than on restitution. As has been
mentioned earlier the concept of victim was rooted in the idea of sacrifice. In the words of Merriam
Webster dictionary, a victim is one”

“that is acted upon and usually adversely affected by a force agent.” Whereas the Oxford
dictionary brings ‘things’ apart from persons under the ambit of victim which can be injured
or destroyed under the accretion of a motive, fruition of a passion or as a consequence of
certain events and circumstances.”

ICC statute defines victim as “natural persons who have suffered harm as a result of the
commission of any crime within the jurisdiction of the ICC”.

3
Code of Hammurabi, a well preserved Babylonian Code of ancient Mesopotamia prevalent in 1754 BC and it consists of
282 laws with scaled punishments, adjusting “an eye for an eye, a tooth for a tooth.” (lex talionis).

6
Articles 1 and 2 of the UN General Assembly Declaration of the Basic Principles of Justice for

Victims and Abuse of Power (considered the ‘Magna Carta’ for victims) provide for the
definition of the term ‘victims of crime’ which is quoted as follows:-

• “To sum up the definition provided under Article 1 , ‘victims’ are the those who
individually or collectively, through acts or omissions that are in violation of criminal
laws operative within member states including those prescribing criminal abuse of
power, have suffered harm including:-

a) Physical or mental injury,

b) emotional suffering,

c) economic loss,

d) substantial impairment of their fundamental rights. “

• “Article 2 says that, “a person may be considered a victim under this Declaration,
regardless of whether the perpetrator is identified, apprehended, prosecuted or
convicted and regardless of the familial relationship between the perpetrator and the
victim.” It further clarifies that other persons included within the ambit of victim
includes:-

(a) Immediate family of the victim; or

(b) The dependants of the victim; or

(c) Persons who have suffered injury in the process of assisting victims in distress or
to prevent victimisation.”

In the words of Richard Quinney, “a victim is a conception of reality as well as an object of

events. All parties involved in sequence of actions construct the reality of the situation. And
in the larger social contacts, we all engage in common sense construction of the crime, the
4
criminal, and the victims”. According to him only some people have the power to define that
who is a victim and who is not.

4
From the revised version of the paper presented at the annual meeting of Eastern Sociological Society,
New York, April 1971; by Richard Quinney who is an American sociologist, Professor of Sociology at New
York University.

7
“Section 2(w a) 2 as inserted by Cr.P.C.3 (Amendment) Act, 2008 includes under the ambit of the term
‘victim’ as a person as well as an institutional entity. As a ‘Person’ a victim is one who suffered directly or
indirectly if he/she is being threatened physical, emotional or pecuniary harm as a consequence of the
commission of a crime. While being an ‘Institutional Entity’ a victim is one who is agonized by something
akin to the harm caused by any individual or any representative authorised by another entity or group who
are indispensably covered under civil or constitutional law and deserves assistance by criminal law
system.”

“As far as the kinds of victims are concerned there is no straitjacket formula to classify the victims to
be considered universally. Various jurists and criminologists differ in their outlook regarding the
classification of victims. Mendelsohn has classified victims into 6 categories in accordance with their
contribution towards crime which are illustrated as follows:-

• Victims who are completely innocent which might include infants or children who need special
attention since they are vulnerable enough to realise what is being done to them.

• Victims with minor guilt; for e.g. pregnant women who are tricked by quacks for
abortion and pay with their lives.
• Victims equally guilty as offenders.

• Victims who more are guilty than offenders especially those who provoke the
perpetrators to commit the crime.
• Victims who come under the category of ‘most guilty’ by virtue of committing crimes against
others and sustaining harm themselves and getting killed. Mendelsohn here gives the example
of the rapist who gets killed by his victim who acts in self-defence.
• Victims who feign victimisation who provide the courts with the evidence so as to

obtain the sentence against an accused.”

Walter Reckless , another American criminologist, in 1961 talked of two kinds of victims

• Non- Reporting victims- the ones who are reluctant in reporting the crimes since
namely:- they fear the social consequences of doing so.

• Reporting victims- who are much more concerned in seeking the punishment of the
offender or the compensation for his suffering than bearing the social consequences
of reporting such a crime.

According to Dr. S.M.A. Qadri there are certain categories of victims who need special care
Elderly victims and greater attention on account of their vulnerability, namely:-

8
 • Child victims
• Victims of sex offences or sexual abuse.
• Female victims.
• Minority groups and weaker sections.

POSITION OF VICTIMS IN INDIA

“Might is right, a phrase which best suits to the situation of victims in India because the victims here, are
being made to suffer in the court and outside the courtroom as well. At the stage of trial if the accused
appears to be wealthy and powerful he might threaten the victim and his witnesses not to testify against
him and outside the courtroom it is the society which instead helping and supporting the victims outcasts
the victims especially in cases where the women are victimised; mostly by rape, sexual abuse or
harassment, human trafficking, acid attack etc. . The police and the court room proceedings prove to be
traumatic equal to that of the offence itself and the justice system makes them feel as culprits themselves
instead of being treated as victims. Secondly the witnesses of the victim might not appear or refuse to give
their testimony on account of threat perception. Thirdly, the accused if being a wealthy person might
engage an expensive lawyer while the victim has to bear with the public prosecutor who might not match
up to the mark of that of that of the defence lawyer which ultimately results into the acquittal of the
accused. The other vulnerable category of victims includes the elderly or the senior citizens and crime
against them has emerged as a bigger social problem in the contemporary India. With the years passing by
there has been a rise in the incidents being reported where the elderly are being subjected to grievous hurt,
murder, abuse, isolation and abandonment by their own children, family members, servants and
neighbours. They are unable to report the crimes on account of their dependency on their family members
which they would lose on doing so. Child victims are the most vulnerable since they don’t even have the
capacity to report the crimes against them to their family members, reporting it to the law enforcing
agencies is a far reached thought and to be least expected from them especially in cases of infants being
raped and beaten by the family members or strangers. According to International Business Times , India
has the largest number of sexually abused children in the world. One out of each three rape victims in India
is a child, as per Louis-Georges Arsenault, UNICEF Representative to India. As per the statistics more than
7,200 children are raped each year and many of them go unreported. A Report by Human Rights Watch
says that the rape victims are”

“mistreated a second time by a criminal justice system that often does not want to hear or
believe their accounts, or take serious action against perpetrators."”

9
“The plight of rape victims is far beyond anyone’s imagination. Hardly rape victims in India appear in the
courtrooms and those who do they appear only to be traumatized and stigmatized. The social status of the
rape victims appear to be pitiful on the other side, being driven by the patriarchal norms. When an Indian
woman is raped the society comes forward to blame the woman rather than blaming the rapist which has
given birth to the culture of impunity. After a rape happens the most common remarks made in the society
by the authorities, politicians, commoners and by the rapists themselves are”, “A girl is far more
responsible for rape than a man”; “housework and housekeeping is for girls and not roaming in discos and
bars or staying late at night for work”; “when being raped, she shouldn’t fight back. She should just be
silent and allow the rape”, “women should not cross their limits and if they do they will have to face such
consequences”. “Thus a rape victim cannot resume a normal life at home, workplace or in the society for
that matter the same way she did before. She leads more or less an alien like life in the society where she is
looked down upon as an untouchable or someone who can be easily subjected to sexual abuse. The root
cause of violence against women is that they are looked down upon as commodities or a symbol of one’s
pride and prestige. In response to the United

Nations Declaration, the Criminal Procedure Code in India was amended in 2008 so as to widen the
definition of ‘Victim’ under Section 2(w a). Before shifting the focus towards the victims of crime the
criminal justice system in India was fanatical about punishment and rehabilitation of the criminals. The
emergence of public interest litigation and the efforts by social activists has drawn the attention of the
courts to this loophole existing in the criminal justice system. To quote the words of Justice V.R. Krishna
Iyer” , “the criminal law in India is not victim oriented and the suffering of the victim, often immeasurable
are entirely overlooked in misplaced sympathy for the criminal. Thought our modern criminal law is
designed to punish as well as reform the criminals, yet it overlooks the by-product of crime i.e. the victim.”
The police in

India are completely ignorant of the international standards of the treatment of victims
prescribed y the UN Handbook on Justice for Victims (United Nations Office for Drugs and
Crimes, 1999, chapter III, pp.56-76). In India the role of victims in the criminal proceedings
is nothing more than that of being a witness when being summoned by the court. Further the
Indian Constitution deals with various rights for the protection of the accused like right to
speedy trial but nowhere in the Constitution the plight of victims is addressed. Thus there lies
no other way to spare justice to the victims except by involving them in the criminal
proceedings to a larger extent.”

10
 VICTIMS RIGHTS AS HUMAN RIGHTS
““Human Rights are the rights that a human being in virtue of whatever characteristics he has that are
both specifically and universally human.” The Dictionary meaning of ‘Right’ says that a right is a
moral or legal entitlement to have or to do something. The etymological origin of the word right lies
in the Old English word ‘riht’ or ‘reht’ and from Proto-Indo- European word

‘reg’ meaning , “having moved in a straight line”, or to “straighten or direct”. However a “clampdown on
rights can be that of inability in absoluteness. Meaning thereby rights can never be absolute or endless and
it is generally accepted that a person’s right begins from the point where another person’s right ends.
Human Rights are said to be the basic rights available to every person without which we would be unable
to live as humans and are responsible for our development up to the full potential. According to Donelly
(2003), the major facets of human rights include their universality, inherence, indivisibility, and
inalienability. After defining the human rights the question now arises is that whether the victims’ rights
are human rights? The human rights instruments do not exclusively mention the provisions for victim’s
rights but indirectly in some way or the other victims are at the centre of human rights thinking. In the
Preamble to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power, the General Assembly has acknowledged that the victims’ rights have not been
recognised sufficiently. Unlike this a number of rights to victims have been recognised by the
Declaration includes:-“

• The right to be treated with respect and recognition.

• Right to be referred to adequate support services in order to deal with the impact of
the crime.
• Right to receive information about the criminal justice system and their role in it.

• Right to receive notification about the progress of their case.

• Right to express their views appropriately at the stages of the criminal justice process.

• Right to protection of their privacy and physical safety.

• Right to reparation from the offender along with the compensation from the state.”

“The government which chooses out not to follow these rights has to face no adverse consequences of
it, as such. According to the Articles 2, 3 and 4 of the Human Rights Act ,

“Everyone’s right to life shall be protected by law. No one shall be subjected to torture or to inhuman
or degrading treatment or punishment. No one shall be held in slavery or servitude.
No one shall be required to perform forced or compulsory labour.” “The Human Rights Act apart from
requiring the government for ensuring the protection of life makes provision for the

11
prohibition against torture and degrading treatment towards the victims. Regarding slavery it is
now an offence in UK to subject a person to slavery or forced labour. Sam Garkawe in 2005
proposed the creation of UN Convention on Victim’s Rights and he comes up with the argument
that the poor and inhuman treatment of victims must be viewed as a matter of human rights
protection. Victim’s rights can thus only be effective as human rights only if they provide two-
fold purpose i.e. on one hand it shall confer entitlements and on the other hand it shall impose
obligations on the people.”

VICTIM'S RIGHTS IN INDIA

“The general rights available to crime victims include:-

• The Right To Attend The Criminal Justice Proceedings: which specifically imbibes the right of
the victims and their families to attend the trial, sentencing, parole hearing of the offender as well as
other proceedings. However the rule bars the witnesses being victims to attend the trial so as to
prevent the witnesses from the influence of other witnesses while giving testimony in a case. Unless
the police considers it necessary the victim pays no significant role since the law existing in India
visualizes a prosecutor appointed by the state as a proper authority to plead on behalf of the victim.

• The Right To Be Heard: it is one of the most important rights available to victims,
which thereby affects their interests because it is through this that he victim can play a
proactive role in the criminal justice process. It is requisite before the final disposal of
the case for the prosecutor to obtain the opinions of the victim and has to certify to the
court that the victim has been duly consulted, before the prosecutor prays for his plea to
be accepted.

• The Right To Be Informed: it is necessary to notify the victims and their families about the
scheduling, re-scheduling and cancellation of the criminal proceedings as well as the aftermath of
such proceedings. Secondly certain legal rights must be made known to the victims including the right
to attend the proceedings, to submit a victim impact statement, sue the offender for pecuniary
damages, and to receive a an order from the court seeking protection of the victim from the offender
or his family or associates.

• The Right To Compensation: the legislative framework regarding compensatory

relief to victims in India consists of mainly four areas:-
(a) The Code of Criminal Procedure.
(b) The Probation of Offenders Act, 1958
(c) The Motor Vehicles Act, 1988

12
 (d) The constitutional scheme in the form of Supreme Courts verdicts while interpreting
fundamental rights or DPSPs or under Articles 32, 136 and 142 when the court may
direct payment of compensation to the victims of crime.”

“The compensation structure may include the medical, counselling and funeral expenses as well as
lost wages. The victim’s family members are also entitled to the compensation. However in order to
be eligible to compensation the crime must have been reported by the victim and the victim must have
cooperated in the prosecution of the case. Section 357-A has been inserted by Cr.P.C. (Amendment)
Act of 2008 (5 of 2009)2 provides for the ‘Victim Compensation Scheme’ to be to be prepared by the
state government in coordination with the central Government for the purpose of compensating to the
victims or their dependents who have suffered loss or injury as a result of crime also who require
rehabilitation. Compensation may even be paid in the situation when no one has been arrested or
convicted of the crime. If some other person pays victim’s medical and funeral expenses then he shall
be rightfully entitled to reimbursement from the compensation program.”

• “The Right To Be Protected: these protective measures may include:-

(a) Police protection while escorting them to and from the court.
(b) Witness protection
(c) Relocation of address

(d) Ensuring the separation of waiting areas for the victims from that of the accused or
his family members or associates during court proceedings.
(e) Denial of bail or imposition of specific conditions in case of bail release like no contact orders for
defendants who appear to be a possible threat to a specific community.

• The Right to Restitution: - it might be in the form of payment of damages or return or repair of
property stolen or damaged during the crime being committed. However restitution may not
cover sufferings like emotional trauma unlike possible future losses.

• The Right to Speedy Trial: no unreasonable delay shall hinder the disposition of the
case. The court however must consider the impact of delay on the victim before
pronouncing the final decision.

• The Right to Enforcement of the Legal Remedies: the legal rights available shall not
be meaningful unless and until they are being enforced.”

“Since a country like India a victim being no party to the criminal proceedings, his legal standing must be
enforced through a statute or a court ruling. The Code of Criminal Procedure has been

13
after its amendment in 2008 and 2013 has tried to revisit the rights of victims by following
means:

• Section 2(w a) as has been already mentioned above provides for the new definition of
the word ‘victim’ so as to include the guardian and legal heir within its ambit and
entitle them with rights equivalent to that of the victim.

• Section 24(8) of the Code enables the victim to engage a counsel of his own choice so
as to assist the public prosecutor.
• Post insertion of section 26(A) the offences under Sections 376, 376(A) to (D) of the
IPC1 shall be tried as far as possible by a court presided over by a female

• Proviso 2 of Section 157 provides for the recording of the statement of a rape victim
at her residence or at a place of her own choice in the presence of parent or guardian
or near relative or a social worker of the nearby locality; by a female police officer as
far as practicable.
• Regarding the offence of a rape of a child a specific time of three months has been
stipulated for the completion of the investigation; under Section 173 (1- A).

Despite all these amendments mentioned above some inadequacies still exist in the present
criminal justice system regarding the protection of the victims. Example being the limited role of
the victim in the criminal proceeding. After the recommendation of the Malimath Committee for
providing with the victims of rape and of domestic violence, certain trauma counselling, proper
legal aid, psychiatric and rehabilitative services; yet there is lack of a statutory scheme for
fulfilling such rehabilitative needs of the victims.”

JUDICIAL APPROACH PRIOR TO THE AMENDMENT

Prior to the amendment of 2008 the position in law was that the word ‘victim’ was not defined in the Cr.Pc
at all. The victims in a case had no right to appeal if the accused was acquitted, they were awarded
inadequate compensation or the accused was convicted for a lesser offence. A right was available to the
complainant to file an appeal under 378(4) of the code. The section encompasses that broad head: Appeal
5
in case of acquittal. The clause four of the section states

“If such order of acquittal is passed in any case instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf, grants special leave to appeal from the order of
6
acquittal, the complainant may present such appeal to the High Court”

5 Section 378 Criminal Procedure Code, 1973

6 378(4) Criminal Procedure Code, 1973

14
As stated earlier that the accused had a superior protection of interest than the victim. This is primarily
based on the principle that “a hundred accused may go free but not one innocent should be punished”.
Thus appeal in order of acquittal is an extraordinary remedy. Where the initial presumption is of innocence
in favour of the accused has been duly vindicated by a decision of acquittal means putting the interest of
7
the accused once again in serious jeopardy.

Section 378 states that an appeal against an order for acquittal can be filed by the:

• the state government

• in case instituted upon the complaint by the government as well as the complainant

Secondly, such appeal can be can be filed only after exercising right of obtaining the leave of
the High Court. Thirdly, whether the order of acquittal is passed by any Magistrate or any
Sessions Judge and whether the offence of which the accused is acquitted is a major or a
minor offence, the appeal in very case of such acquittal could be made only to the High
Court. Fourthly, according to sub-section (6) an appeal by the State under sub- section (1) or
sub-section (2) is barred in case the private complainant has failed to obtain the leave to
8
appeal under sub- section (4).

The victim had no right to appeal in case of acquittal this right could only be exercised by the
complainant in the case. This was the position of law prior to the insertion of the proviso of section
372 CRPC. This position of depravity was recognised by the court at several instances. In the case of
9
Rattan Singh v. State of Punjab Justice Krishna Iyer highlighted the need of victims of crime. He
observed: “it a weakness of our jurisprudence that the victims of crime, and distress of the dependent
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.”

th
Subsequently the 154 Law Commission Report and the Malimath Committee Report categorically
addressed this issue. The Malimath Committee report stated “The victim or his representatives who is a
party to the trial should have a right to prefer an appeal against any adverse order passed by the trial
court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy
of sentence, or in regard to compensation payable

7
Criminal Procedure R.V. Kelkar 6th Edition pg 658
8
Criminal Procedure R.V. Kelkar 6th Edition pg659
9
Rattan Singh v. State of Punjab (1979) 4 SCC 719
15
to the victim. The appellate court should have the same powers as the trial court in regard to
10
assessment of evidence and awarding of sentence.”

JUDICIAL APPROACH POST AMENDMENT

Since the proviso of section 372 states that the victim shall have a right to prefer an appeal. It
is necessary to understand who comes within the ambit of the word victim.

WHO IS A VICTIM?
The amendment of 2008 inserted the meaning of victim under Section 2 (wa) it states that:

“‘victim’ means 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”
11
includes his or her guardian or legal heir”

The High Courts all over India had divergent views on the interpretation of the term victim and
mainly four different opinions came up for consideration. The first interpretation was provided by the
Delhi High Court which provided a narrow reading of the word “victim” and limiting it to persons to
whom direct and proximate physical harm is caused and a narrow reading of the term “legal heir” by
12
limiting it to lines of succession under personal law.

The second interpretation was a broaderreading of the word “victim”. In the case of
13
Parmeshwar Mandal v. the State of Biha r the Patna High Court said that victim will
include anyone to whom emotional harm caused by the direct harm to someone that one is
close to, and a narrow reading of the term "legal heir" similar to what was done by the
Chattar Singh’s case. The third view is a narrow reading of the word “victim” and a broad
reading of the term “legal heir”.

The Punjab and Haryana High Court did not agree with any of the positions stated above and
14
gave a broad reading of the both the terms that is “victim” and “legal heir”

The law on this subject matter was ultimately clarified and developed to a certain extent by the Delhi High
Court in the year 2015. This judgement disagreed with the law laid down in Chattar

Singh’s case that the direct and most proximate result of a crime refers only to the physical harms resulting
from the offence, as there can be direct and proximate emotional injuries that

10
Committee on Reforms of Criminal Justice System 2003
11
Section 2(wa) Criminal Procedure Code
12
Chattar Singh vsSubhash& Others 2011 CRL.A.443/2010
13 Parmeshwar Mandal v. the State of Bihar2014 (1) PLJR 377
14 Tata Steel v. Atma Tube Products (2014) 173(1) PLR 1

16
equally result from the crime. Undoubtedly there should be a relationship of proximity between the injury
and the act constituting the offence. However, it does not follow that only physical injuries, and not mental
injuries, are direct and proximate results of the crime. What is important to note is that proximity is not a
hard-and-fast relationship, which can be determined by an antecedent rule. It has to be established in the
context of the facts established in a given case. Consequently, it agreed with the view of the Patna High
Court, to the extent that it has to be ultimately left to the prudence of each Court to assess whether the
appellant before it had actually suffered any “loss” or “injury” in the course of the crime complained of, or
15
not.

16
In the case of Ram Phal v State and Ors elucidated the meaning of “legal heir”.The court held that since
“victim” means 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" is already of wide enough import to include at least some
17
legal heirs within its ambit. Therefore, victim by its natural and ordinary meaning, given the definition of
injury in Section 44 of the IPC, must include those legal heirs that suffer harm to the mindon account of
the injury to a loved one. The laws of inheritance, which merely stipulate the priority of succession to the
property of the deceased, could not possibly have been intended to be solely determinative of the
entitlement to exercise the rights of the victim on his/her death, in the criminal trial process. A criminal
offence results in personal injury to the victim, which is in no way related to the estate of the victim;
plainly then, the position in the order of succession, of any heir, is immaterial in deciding an heirs
18
entitlement to assist in the prosecution file an appeal against the trial courts judgment.

INADEQUATE COMPENSATION
“Frivolous contentions to support their client’s case have often been brought forth in the court of
law but it is a mockery of the rights of the other party when such frivolous contentions are
accepted by the judges. It is a completely different case when the subject matter is a complicated
one and the judges face a difficulty in arriving at a decision. In such cases there is a scope that the
decision reached by the court might be a view which is not acceptable but in cases where the
position seems quite clear and the court accepts the fatuous arguments it is nothing but a blatant
error on their behalf. Such manifest error was committed in the case of Ahammed v. Abdul
Latheef”

15 16
Ram Phalvs State AndOrs. on 28 May, 2015 CRL.A.1415/2012
ibid
https://indiankanoon.org/doc/533262/ 17 Jagir Singh v. State of Bihar AIR 1976 SC 99,
https://indiankanoon.org/doc/2163256/ 18 J.V. Thakur v. State of Maharashtra (2009) 7 SCC 104
17
“As the proviso of section 372 states that the victim can file appeal in three situations namely:

• If the accused is acquitted

• If he is convicted for a lesser offence

• If the compensation received by the victim is inadequate “

The court was to determine what is meant by inadequate compensation. In Ahammed v. Abdul Latheef, the
court held that the victim has no right to file an appeal under the proviso to Section 372 of the Code of
Criminal Procedure on the ground of inadequate compensation when no compensation was granted by the
trial court and when no fine was imposed out of which compensation could be granted. It was held by the
learned single Judge that only if compensation is ordered, the question of adequacy or inadequacy of
compensation would arise.
19
Thus inadequate compensation does not include no compensation.

This position was further clarified by the Kerela High Court judgement and this judgement severely
criticised the earlier approach. The court held that the legislature did not intend that a victim to whom
no compensation was awarded would have no right to challenge the judgment in appeal, but, a victim
to whom howsoever negligible an amount is granted can file an appeal. What was intended, and the
only possible interpretation that could be made, is that a victim can file an appeal under the proviso to
Section 372 even in a case where the court below did not grant any compensation at all. The
legislature wanted to confer rights on the victims. A definition for 'victim' was provided by the
amendment. A right of appeal was provided to the victim when the compensation awarded is
inadequate. Section 357A was also introduced providing for a victim compensation scheme. In spite
of all these provisions, if it were to be held that the victim would have no right to file an appeal when
the Court did not grant any compensation at all, it would result in taking away aright vested in the
20
victim under the proviso to Section 372 Cr.P.C.

RESOLVING THE CONFLICT BETWEEN SECTION 372 PROVISO AND 378(4)

“The victim in a criminal case can appeal in the court under section 372 and the complainant can exercise
the same right under section 378(4). If a victim has to file an appeal against acquittal he can directly
approach the court under the proviso of section 372 but if the complainant has to file an appeal he can do
so under section 378(4) he first has to obtain leave of the court. It is often that the victim and complainant
are one in the same person so under

19
MANU/KE/1117/2011 : 2011 (2) KLT 889
20
Vanaja K.C. V. State of Kerala and Ors ILR2016(2)Kerala713
18
which section should he approach the court. The first conflict which needs to be resolved is
whether the word victim includes the word complainant because if victim includes
complainant and then under which section does the victim need to proceed to assert the right
guaranteed to him. Both the sections provide a right to appeal but different procedures have
been mentioned to exercise this right.”

The courts decisions have been poles apart on this subject matter. The court stated in
21
Dharmveer Singh Tomar v Shriramraj Singh that unless Section 372 Cr.P.C. itself specifies
that victim also includes a complainant a complainant cannot maintain an appeal as a victim
and the remedy therefore is only under Section 378(4) Cr.P.C. as in a case instituted upon
complaint.

22
While in the case of G. Baswaraj v State of A.P. the court held that, a victim irrespective of the fact
whether he is complainant or not, has been conferred the right to file appeal against an order recording
acquittal by the trial court either to Sessions Court or to the High Court as the case may be. In case,
the victim is also the complainant in a case instituted by way of a private complaint, then such person
has two options to file appeal against an order of acquittal recorded by the trial Court, either to the
High Court under Section 378 (4) Cr.P.C. or to the Sessions Court High Court under proviso to
Section 372 Cr.P.C. “It is open to that person who is a victim as well as a complainant to choose one
of the two remedies available in law and to approach an appellate court of his choice depending on the
trial court which recorded order of acquittal. Section 378 (4) Cr.P.C. and the proviso to Section 372
Cr.P.C. can be given effect to simultaneously the provisions can operate in the field at one and the
same time and there is no conflict or clash or inconsistency.”

“The different high courts have at supported either of the decisions when faced with the
question thereby, making the position absolutely unclear.”

DO VICTIMS HAVE TO SEEK LEAVE

23
In relation to this issue the court in Smt.Ram Kaur @ Jaswinderkaur v Jagbir Singh the court added a
new dimension and observed that “By the proviso, a right to file an appeal has been conferred on the
victim against the order of acquittal, but the procedure for filling such appeal will be the same as provided.
Therefore, even if the victim has a right to prefer an appeal against

21
Dharmveer Singh Tomar v Shriramraj Singh 2011(2)MPLJ 643
22
G. Baswaraj v State of A.P 2011 (1) ALT (Crl.) 88 (A.P.)
23
Smt.Ram Kaur @ Jaswinderkaur v Jagbir Singh 2010 (3) RCR (Cri) 391.
19
the order of acquittal, he has to seek leave of the high court to prefer such an appeal. He cannot
directly file the appeal against the order of acquittal as a first appeal.”

A similar view was taken by Patna High Court in the case of Guru Prasad Yadav v State of
24
Bihar and rejected the maintainability of the appeal filed by the victim without any
application for grant of leave.

Subsequently this issue was addressed by the Division Bench of the Bombay High Court in the case of
25
Balasaheb Rangnath Khade v. State of Maharashtra where the judges differed in their opinion. As both
the judges disagree the matter was placed before a third judge and thereby
Justice RoshanDalvi has final say in this matter. “The right of the victim to speak corresponds with the
obligation of the court to listen and that listening is a must for the right to be free, full and unfettered; it
cannot be shackled upon leave granted by the court, the hearing of which the court is obligated to listen.
26
Requiring the victim to obtain leave would mean that it is trammelled by what the court deems fit to do.”
“If the victim also happens to be complainant and the appeal is against acquittal, he is required to take
leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not
required to apply for or obtain any leave. For the appeal against inadequacy of compensation or
punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the
complainant or not.”

27
In the case of Anil Kumar Agarwal v State of U.P. the court was faced with a similar
question. The court discussed at length the different views taken up by several high courts
and reached the conclusion that it would be best if the a larger bench addressed all the issues
under 372 and 378(4).

CONCLUSION
“There may be a number of rights defined for the victims but the reality remains to be somewhat different
with inadequacy and enforcement issues with such rights. There are two sections in the society; one that is
accused and the other being victims out which the accused rights, punishment and rehabilitation is being
widely discussed but little heed is being paid to the victims needs. The present situation demands for the
victim’s rights to be treated as the basic human rights than just being considered as a part of the criminal
justice process. A proper statutory scheme is required to deal with the victim’s rights in comparison to the
present

24 Smt.Ram Kaur @ Jaswinderkaur v Jagbir Singh Criminal Appeal (DB) No 582 of 2011
25 Balasaheb Rangnath Khade v. State of Maharashtra Criminal Appeal No. 991 of 2011
26 2012 BomCR(Cri)632
27
Anil Kumar Agarwal v State of U.P Delivered on 25.1.2017
20
situation where it is dealt in fragments. As per the research of the criminologists and
victimologists the newly gained rights have short term impact and the plight of the victims
remains the same. The hard truth is that the concept of victimology remains to be a paper
work in our country while in reality it has little practical utility. Apart from the statutory
scheme the role of courts and judges remain is greater value in leaving an impact through
their decisions on the social order. In nutshell it can be said that the immediate requirements
to restore the rights of victims include victim compensation, freedom to choose one’s own
lawyer and security of the victim.”

21