RENAISSANCE UNIVERSITY, INDORE

SCHOOL OF LAW

L.L.M (CRMINAL LAW)

BATCH 2024-2025

DISSERTATION ON:

“HUMAN RIGHTS OF VICTIMS AND IT’S STATUS IN INDIAN CRIMINAL

JUSTICE SYSTEM”

UNDER THE SUPERVISION OF: SUBMITTED BY:

DR. SADHNA SHARMA SHIVENDRA SINGH BAIS

ENROLLMENT NO:

RU
 AN ABSTRACT OF THESIS

“Human Rights of Victims and it’s Status in Indian Criminal Justice System”, is the
study of the position and status of victim under Indian criminal justice system. The victim
is the person who sets the criminal law in motion and an important part of criminal justice
system without his support it is not possible to decide the case. Inspite of such thing, the
victim don’t have the adequate rights in the whole proceedings of criminal justice system
to protect his interest. The victims of crime received better justice before the formal
criminal justice systems developed in the world as the offenders were always asked to
pay compensation to the victims in proportion to the amount of damage or injury caused.
The development or emergence of concept of State and its responsibility to preserve
peace and protect the life and property of person or citizen from onslaught of crime, the
victim became a ‘forgotten person’ and justice was gradually meant to establish the guilt
of the accused and punish the wrongdoer if the guilt was proved. In the whole process of
the criminal justice system, the victims had no significant role except to serve as a primary
witness during the trial of the case. The administration of justice during the middle of the
twentieth century, particularly after the formulation of the Universal Declaration of
Human Rights, 1948, laid emphasis on protecting the human rights of the accused and
the prisoners. It is therefore the moral and legal obligation of the State to treat him with
human dignity by respecting his human rights, so it will be facilitate his reformation
during the period of incarceration. Ultimately this results into, to change the focus of
criminal justice system from victim to accused and victim became the neglected object
and subject under the proceedings.
 DECLARATION

I, hereby declare that the work included in this thesis entitled, “Human Rights of Victims
and it’s Status in Indian Criminal Justice System” is carried out by me under the guidance
of Dr. Sadhna Sharma, School Of Law, Renaissance University, Indore. The work is
original and has not been submitted in part or full to any other University or institute for
award of any research degree. The extent of information derived from the existing literature
has been indicated in the body of the thesis at appropriate places giving the references.

Date: SHIVENDRA SINGH BAIS

Place: Indore Research Student

 ACKNOWLEGMENT

I would like to express my gratitude towards my supervisor Dr Sadhna Sharma. In

the course of my efforts, she advised and supported me. She also made fast
corrections to my errors and informed me of any changes to the Project that had been
made. I am also incredibly grateful to Mr. Mohan Moyal Sir, Head of Department,
SCHOOL OF LAW, RENAISSANCE UNIVERSITY, INDORE for providing me
with substantial means for the research project and for allowing me to pursue the subject
matter of my choice without any restrictions or limitations. I would also like to express my
heartfelt gratitude to all of the other faculty members at the SCHOOL OF LAW,
RENAISSANCE UNIVERSITY who have contributed to my understanding of the subject
and broadened the scope of my work. I would also like to express my gratitude to my friends
and family for their unwavering support and collaboration throughout the years.

Date: 26.05.2025

Place: Indore SHIVENDRA SINGH BAIS

 INDEX

Sr.No. Title Page

No.
CHAPTER – I
INTRODUCTION 1-16
1.1 Origin and Background 1
1.2 Meaning of Victim 3
1.3 Objectives of Research 4
1.4 Statement of Problem 4
1.5 Survey of Literature 5
1.6 Hypothesis 8
1.7 Research Methodology 8
Justice for Victims of Crime: A Requirement of Human Rights 8
1.8

1.9 Impact of Criminal Administration Justice System 12

1.10 Importance of Victim in Criminal Justice System 13
1.11 Plan of the Study 15
CHAPTER–II
CRIMINAL LAW AND HUMAN RIGHTS OF VICTIMS 17-32

2.1 Introduction 17
2.2 The Code of Hammurabi 18
2.3 Other Early Codes and Laws 19
2.4 Ancient Hindu Law 21
2.5 Ancient Muslim law 23
2.6 Victim in the Medieval Period 24
2.7 Victimology Theories 29
A. Medelsohn’s Theory of Victimisation 29
B. VonHentig’s Theory of Victimisation 31
CHAPTER - III
CONSTITUTIONAL AND LEGISLATIVE 33-55
SAFEGUARDS IN INDIA
3.1 Introduction 33
3.2 Overview of the Indian Criminal Justice System 34
3.3 The Constitution of India 37
3.4 The Indian Penal Code 38
3.5 The Criminal Procedure Code 46
3.6 Indian Evidence Act 48
3.7 Probation of Offenders Act,1958 50
3.8 Fatal Accident Act,1855 51
3.9 Motor Vehicles Act,1988 52
3.10 Protection of Women from Domestic Violence Act, 2005 53
CHAPTER–IV
CRIMINAL JUSTICE DELIVERY SYSTEM IN INDIA: AN
ANALYTICAL OVERVIEW 56-82

4.1 Introduction 56
4.2 Adversarial Criminal Justice System 57
4.3 Inquisitorial Criminal Justice System 58
4.4 The Victim and the Police 61
4.5 The Process of Investigation and the Victim 66
4.6 J.Malimath Committee Report and Reforms in Criminal Justice 69
System
4.7 The Code of Criminal Procedure (Amendment) Act, 2008and 72
Rights of Victim
A. Appointment of an Advocate 73
B. Protection to Rape Victims 73
C. Protection to Witnesses 73
D. Right to Appeal 73
E. Victim Compensation Scheme 74
4.8 Victim Rights Vis-à-vis Human Rights 77
CHAPTER–V
ROLE OF JUDICIARY TO PROTECT THE RIGHTS OF
VICTIM 83-101
5.1 Introduction 83
5.2 Emergence of the Concept of Public Interest Litigation 86
A. Compensation for Murder 91
B. Compensation for Sexual Offence 92

C. Constitutional Remedy for Violation of Human Rights 98

CHAPTER-VI
CONCLUSION AND SUGGESTIONS 102-103
Bibliography 104
 TABLE OF CASES

• All India Democratic Women’s Association v. State, 1998 CrLJ

2629.
• Abdul Karim v. State of Karnataka, AIR 2001 SC 116.
• Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
• Aman Kumar v. State of Haryana, AIR 2004 SC 1497.
• Ahammedkutty v. Abdullakoya, (2009) 6 SCC 660.
• Arumugam Servai v. State of Tamil Nadu, (2011) 6 SCC 405.
• Balwant Singh and Another v. State of Bihar, AIR 1977 SC 2266.
• Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
• Bhim Singh v. State of Jammu and Kashmir, AIR 1981 SC 234.
• Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
• Bhagwat Singh v. Commissioner of Police, AIR 1985 SC 1285.
• Bodhisatwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
• Bijal Revashankar Joshi v. State of Gujarat, (1997) CrLJ 4170
(Guj.).
• Chairman, Railway Board v. Chandrima Dass, (2000) 1 SC 465.
• C. Muniappan v. State of Tamil Nadu, AIR 2010 SC 3718.
• Daryao v. State of U.P., AIR 1961 SC 1457.
• Delhi Domestic Working Women’s Forum v. Union of India,
(1995) 1 SCC 14.
• D. K. Basu v. State of West Bengal, AIR 1997 SC 610.
• Delhi Municipal Workers Union (Regd.) v. Delhi Municipal
Corporation, 2001 Del. 68.
• Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981
SC 344.
• Ghirrao v. Emperor, (1933) 34 CrLJ 1009.
• Guruswamy v. State of Tamil Nadu, (1979) 4 SCC 797.
• Government of National Capital Territory of Delhi v. Nasiruddin,
2000 CrLJ 4925.
• Hasib v. State of Bihar, (1972) 4 SCC 773.
• Hari Krishna and State of Haryana v. Sukhbir Singh, 1988 SC
2127.
• Iqbal Ismail Sodawala v. State of Maharashtra, 1974 SCC (Cri.)
1
 764.
• India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328.
• Janata Dal v. H. S. Choudhari, AIR 1993 SC 892.
• J.K. International v. Govt. of the National Capital Territory of
Delhi, (2001) 3 SCC 46.
• Kesavanand Bharati v. State of Kerala, AIR 1973 SC 1461.
• Kasambhai Abdulrehemanbhai Sheikh v. State of Gujarat, AIR
1980 SC 264.
• Kuldip Singh v. State of Haryana, 1980 CrLJ 1159 (H. & P.).
• Khatri v. State of Bihar, AIR 1981 SC 928.
• Kachhia Patel Shantilal Koderal v. State of Gujarat, AIR 1983 SC
747.
• Kunhi Mani v. State of Kerala, 1988 CrLJ 493.
• K. Sudhakaran v. State of Kerala, (2009) 4 SCC 168.
• K. A. Abbas v. Sahu Joseph, (2010) 6 SCC 230.
• Lakshmi Agencies v. Govt. of A.P., (1994) 1 AndhL.T. 341.
• Lata Singh v. State of U.P. and Others, (2006) 5 SCC 475.
• Latika Kumari v. Govt. of U.P., AIR 2013 SC 554.
• Madanlal Ram Chandra Dags v. State of Maharashtra, AIR 1968
SC 1267.
• M. N. Shankarnarayan v. P. V. Balakrishnan, AIR 1972 SC 496.
• Maru Ram and Another v. Union of India and Another, AIR 1980
SC 2147.
• Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11.
• M. C. Mehta v. Union of India, AIR 1987 SC 1087.
• Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.
• Madhu Bala v. Suresh Kumar, (1997) 7 SCC 85.
• Madhuresh v. CBI, (1997) CrLJ 2820 (Del.).
• Madhab Chandra Jena v. State of Orissa, 1998 CrLJ 608 (Ori.).
• M. Balkrishna Reddy v. Home Dept., 1999 CrLJ 3566 (AP).
• Manoj Kumar v. State of M.P., 2000 CriLJ 1997 (MP).
• Milan Kumar Pradhan v. Union of India, 2000 Cal. 5.
• Manish Jalan v. State of Karnataka, AIR 2008 SC 3074.
• Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC
1.
• Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
2
• Narmada Bachao Andolan v. Union of India, (2000) 4 SCJ 261.
• Narayan Saha v. State of Tripura, 2005 SC 1452.
• National Commission for Women v. State of Delhi, (2010) 12 SCC
599.
• Oraon v. State of Bihar, AIR 1983 SC 1123.
• Pratap v. State of U.P., (1973) 3 SCC 690.
• Public Prosecutor v. Mandangi Varjuno, 1976 CrLJ 46 (AP).
• Palaniappa Gounder v. State of T.N., AIR 1977 SC 1323.
• Purshottam Vijay v. State, 1982 CrLJ 243.
• Parmanand Katra v. Union of India, AIR 1982 SC 2039.
• P. N. Kumar v. Municipal Corporation of Delhi, AIR 1989 SC
1285.
• Palwinder Singh v. State of Punjab, 1997 CrLJ 2811 (P & H).
• Ram Ranjay Roy v. Emperor, ILR (1915) 42 Cal 422.
• Ramesh Thapper v. State of Madras, AIR 1950 SC 124.
• Ratan Singh v. State of Punjab, (1974) 4 SCC 719.
• Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.
• Rudal Sah v. State of Bihar, AIR 1983 SC 1086.
• R. Gandhi v. Union of India, AIR 1989 Mad. 205.
• R. Rathinam v. State, (2000) 2 SCC 391.
• Rupan Deol Bajaj v. K. P. S. Gill, 2005 CrLJ 2043.
• Ramesh Kumari v. State (NCT of Delhi), (2006) 1 SCC 672.
• Shailabala Devi v. Emperor, (1933) 34 CrLJ 1115.
• Santa Singh v. State of Punjab, (1976) 4 SCC 190.
• Sarwan Singh v. State of Punjab, (1978) 4 SC 111.
• Subhash Chander v. State (Chandigarh Administration), (1980) 2
SCC 155.
• S. P. Gupta v. Union of India, AIR 1982 SC 149.
• Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.
• State of U.P. v. R. K. Srivastava, 1989 SCC (Cri.) 713.
• Saheli: A Women’s Resources Centre v. Commissioner of Police,
Delhi Police Headquarters, AIR 1990 SC 513.
• Seethalakshmi v. State of Tamil Nadu, 1991 CrLJ 1037.
• State of Haryana v. Bhajan Lal, 1992 SCC (Cri.) 713.

3
 ABBREVIATIONS

1. AIR - All India Reporter

2. Art. - Article
3. CrPC - Criminal Procedure Code, 1973
4. CSC - Correctional Service of Canada
5. CVRA - Crime Victims Rights Act
6. CICA - Criminal Injuries Compensation Authority
7. EU - European Union
8. IPC - Indian Penal Code, 1860
9. IEA - Indian Evidence Act, 1872
10. ICC - International Criminal Court
11. ISV - Indian Society of Victimology
12. PBC - Parole Board of Canada
13. RPE - Rules of Procedure and Evidence
14. Sect. - Section
15. TFV - Trust Fund for Victims
16. UK - United Kingdom
17. USA - United States of America
18. UN - United Nations
19. VIS - Victim Impact Statement
20. VPS - Victim Personal Statement

4
 Chapter I

INTRODUCTION
1.1 Origin and Background

The concept of victim dates back to ancient culture and civilization. Its original
meaning was rooted in the exercise of sacrifice – the taking of the life of a person
or animal to satisfy a deity. Over the centuries the word victim comes to have
additional meanings so as to include any person who experiences injury, loss or
hardship due to any cause.

The ancient societies recognized the natural right of victim to inflict

punishment on the wrongdoer by way of revenge. In the Hindu scriptures of
Manusmiriti a harsh punishment is prescribed for the violators of law. With the
passage of time it was realized that the victim should not be allowed to take law
into his own hands for this purpose. Instead of that, the state or the society should
consider it to be its collective duty to ensure that the criminal or the wrongdoer
gets suitably punished. The deterrent punishment was considered important to
control crime during old days. Subsequently with the emergence of industrial
revolution specially after French revolution a sea change was noticed in every walk
of life and in every corner of planet. It was realized that the deterrent punishment
was ineffective to control crime and deter the criminals from committing the crime.
A result of study of crime from the stand point of criminals, it was felt that
criminals are created by the society. Accordingly anxiety was shown from national
and international forum for the treatment and restitution of the criminals so that
they can come back to the main stream of society. Thus, with the passage of time
and increasing interaction with the western civilization the focus of the penologist,
jurists, criminologist and government was shifted to the rights of the under trials
and reformation of the convicts and hence the victims became the forgotten men
of our criminal justice system.

The history of crime is as old as of mankind itself but in the primitive

period" a tooth for a tooth", “an eye for eye” and “a life for a life” was the

5
 essence of criminal justice in those olden days. But when we talk about
development of law, the Code of Hammurabi is considered one of the first known
attempts to establish a written code of conduct. The noteworthy importance in the
code was its concern for the right of victims.1 In reality this code may have been
the first "victim rights statute" in the history of criminal justice system. As the
civilization developed new ideas regarding individual’s rights and his
corresponding duty to his fellow human beings took shape. The crime was no
longer considered an offence against the individual only, but a revolt against the
norms of an organized society and an attack on the civilization of the day. Soon
the state took upon itself the right to identify and punish the offenders.

In a modern welfare state, the purpose of criminal justice system is to protect

the rights of individuals and punish the wrongdoer for the violation of basic norms
of society. To insure that innocent persons may not be victimized the accused has
been granted certain basic rights and privileges to prove his innocence. In case the
accused found guilty he is punished and kept in prison with an object of reforming
him. Courts have from time to time directed the state authorities to provide all
necessary facilities and ensure that human rights of criminals are not violated. The
Constitutional and legislative protections given to accused person to avoid any
kind of injustice with him or he cannot become the scapegoat. During the process
of trial. In fact, it is a short coming of our criminal jurisprudence that crime do not
attract due attention perhaps the criminal justice system is arbitrary and operates
to the disadvantage of the victim. Krishna Iyer J. in Rattan Singh v. state of
Punjab2, aptly highlighting the apathy of law to a victim of crime, observed:

"It is a weakness of our jurisprudence that victims of crime and the

distressofthedependentsofthevictimdonotattracttheattentionoflaw. In fact, the
victim reparation is still the vanishing point of our criminal law. This is the
deficiency in the system, which must be rectified by the legislature."

1
H.Gurdon, Hammurabi's code: Quaint or forward looking, (Rinehart, NewYork) 1957.
2
(1979)4SCC719

6
 1.2 Meaning of Victim

The term victim is lacking descriptive precision it implies more than the
mere existence of an injured party, in that innocence or blamelessness is suggested
as well as a moral claim to a compassionate response from others.

The term victim is defined in oxford English dictionary as:

"Victim is a person who is put to death or subjected to misfortune by

another; one who suffers severely in body or property through cruel or oppressive
treatment: one who is destined to suffer under some oppressive or destructive
agency: one who perishes or suffers in health etc. from some enterprise or pursuit
voluntarily undertaken."

As per Collins English Dictionary:

'Victim' means a person or thing that suffers harm, death etc. from another
or from some adverse act, circumstance etc.

1.3 Objectives of Research:

1. To investigate basic violations of human rights of victims and their relevance

in the present criminal justice system.
2. To scrutinize the issue from various social, legal, and psychological
perspectives, aiming to provide justice to victims.
3. To examine the changing aspects and scenarios of the criminal justice system
and its attitude toward the victim.
4. To analyze the international perspective and suggest changes, modifications,
or alterations in the Indian criminal justice system accordingly.
5. To identify the hurdles, loopholes, and pitfalls in the available legal
framework and criminal justice system protecting the interests of victims, and
suggest suitable changes where necessary.
6. To explore the reasons for the unwillingness of victims to report to the police.
7. To suggest remedies based on the research that would make the existing
criminal justice system more effective.

1.4 Statement of Problem:

7
 This issue has multiple angles in the era of humanitarian approaches and
the democratic structure of the criminal justice system. Justice for the
victim from the criminal justice perspective is of utmost importance. This
is one of the neglected issues that need topmost attention and
consideration. This gap prompted the researcher to delve into this
neglected area. The law on paper often differs significantly from its
execution due to various challenges, and the same is true for justice to the
victim. Considering the various angles and vast scope, the researcher
intends to focus primarily on the Indian perspective in this research.

1.5 Survey of Literature:

The researcher will conduct an extensive survey of available statutes,
legislative frameworks, and regulatory frameworks related to the criminal
justice system, coupled with a humanitarian approach. This study will
primarily rely on the human rights approach and criminal law approach,
considering the victim as the central focus. The researcher will also rely
on textual material, statutes, judicial pronouncements, reports from law
commissions, national and international conventions, articles, journals,
encyclopedias, etc. A brief review of some key texts, including the
Mallimath Committee Report, is outlined below, which will be helpful in
carrying out this research.

Mallimath Committee Recommendations:

The Justice V. S. Malimath Committee on Reforms of the Criminal
Justice System (2003) provided recommendations to make the criminal
justice system more effective. The committee focused on the role of
victims and offered suggestions to improve their status. The researcher
agrees with the committee's findings, particularly its analysis of the
justice given to victims and its critical examination of the system's flaws.
The report’s discussion on investigation processes, judicial roles, and the
differences between adversarial and inquisitorial models is valuable for
reviewing the victim's status within the criminal justice system.

Key Texts and Publications:

1. Prakash Talwar, "Victimology" (ISH Publishing House, New Delhi, 2006)
- This book explores the concept and development of victimology, offering
insights into the science of victimology.

2. Mohammad Farajiha Ghazvini, "Police Protection to Victims of Crime"

(Deep and Deep Publications, 2000) - This book discusses the origin and
classification of victims, helping understand their experiences with
different types of offenses.

8
3. G. S. Bajpai, "Victim in the Criminal Justice Process" (Uppal Publishing
House, 1997) - Focuses on the process of victimization, post-victimization
effects, and the need for assistance to victims in the justice process.

4. K. D. Gour, "Textbook on Indian Penal Code" (Universal Law Publishing,

2004) - This textbook includes discussions on justice for victims and
highlights the weaknesses of criminal jurisprudence.

5. K. I. Vibhute, "Criminal Justice" (Eastern Book Company, 2004) - A

collection of essays discussing human rights perspectives on victims of
crime.

6. Jonathan Doak, "Victims’ Rights, Human Rights, and Criminal Justice"

(Hart Publishing, 2008) - This book delves into victims’ rights within a
human rights framework.

7. Haevey Wallace, "Victimology" (Allyn and Bacon, 1998) - A global

perspective on victimology, discussing traditional theories and responses to
victimization.

1.6 Hypothesis / Research Questions:

1. The criminal justice system requires due consideration and a new outlook
toward victims to ensure justice.
2. Is the Indian criminal justice system and its implementing machinery
effective enough to deliver justice to victims?
This hypothesis addresses the neglected position of victims in the
criminal justice system and advocates for the formulation of new policies
to better protect victims’ rights.

1.7 Research Methodology:

The research problem is chosen with great interest, given the societal and
legal significance of the role and protection of victims in the present
criminal justice system. This socio-legal study uses doctrinal research
methodology to critically analyze the Indian legislative framework,
policies, and the role of Indian judiciary in protecting the rights of crime
victims.

9
 1.8 Justice for Victims of Crime: A Requirement of Human Rights

The state has a legal duty to ensure effective protection of human rights
and prevent violations of these rights. Although there is no single
comprehensive legal provision guaranteeing victim's rights, these rights
can be inferred from various sources, including:
• Constitution of India: The Constitution provides protections against unjust
deprivation of life and liberty, and guarantees victim compensation in certain
cases.
• Criminal Procedure Code (CrPC): Provisions in the CrPC outline the rights of
victims in criminal proceedings, such as the right to lodge complaints, appear as
witnesses, participate in plea bargaining, and receive compensation.
• Compensation for Victims: Section 357 CrPC empowers courts to award
compensation to victims, and the victim compensation scheme allows district legal
services authorities to determine compensation amounts.
• International Conventions: Various international conventions and declarations,
including the UN Declaration on Victims’ Rights, advocate for access to justice,
restitution, compensation, and assistance for recovery for crime victims.

1.9 Impact of Criminal Justice System on Victims

The criminal justice system operates through two main models: the
adversarial system and the inquisitorial system. Both aim to deliver
justice, but their approaches differ. The adversarial system, predominant
in commonwealth countries, focuses on presenting facts by the
prosecution and defense before a neutral judge. While this system seems
fair, it often overlooks the victim’s rights, as the judge's neutrality may
hinder the search for the truth and prevent restorative justice for the
victim.

1.10 Importance of Victims in the Criminal Justice System

The criminal justice system depends on victims and witnesses to report

crimes, cooperate with investigations, and assist in holding offenders
accountable. However, the system often focuses on the accused's rights,
neglecting the victim's plight. This imbalance leads to the victim's
suffering, both physically and financially, without adequate redress. This
research will address the failure of the justice system to prioritize victims'
rights and propose remedies for improvement.

10
1.11 Plan of the Study:
The thesis is divided into the following chapters:
• Chapter I: Introduction (Overview of the research topic, objectives, significance,
hypothesis, and methodology).
• Chapter II: Criminal Law and Human Rights Perspective of Victim Status.
• Chapter III: Constitutional and Legislative Safeguards in India for Victims.
• Chapter IV: Criminal Justice Delivery System in India: An Analytical Overview.
• Chapter V: Role of Judiciary in Protecting the Rights of Victims.
• Chapter VI: Conclusion and Suggestions for Strengthening the Victim's Status.

11
 Chapter II

Criminal Law and Human Rights of Victim Status

2.1 Introduction

The role, importance, and visibility of the victim have varied greatly in human societies.
These variations reflect the historical revolution of legal concepts, as well as diverse
approaches to the interpretation of such notions as that of individual responsibility. Atone
time in history, the victim of crime enjoyed the central position in the administration of the
criminal justice. Over the centuries, however, the victims have evolved as a mere witness
in the criminal proceedings. In this chapter researcher tries to trace the history, origin and
development of the position of the victim. The researcher also tries to study the status of
victim in each period including ancient, medieval or modern period and also tries to analyse
how his/her status changed in each period. At the same time researcher also tries to study
various theories of victimology as it is equally important one to study victim- offender
relationship and how these theories develop various typologies of victims which are helpful
to study the victims of crime from different angles. Crime and criminal has been recognized
throughout the history of mankind. So also in the criminal-victim relationship, the aspect
which was recognized was the harm, injury, or other damages caused by the criminal to his
victim. Till the end of II World War there has been virtually no consideration of the victim’s
participation in the wrong doing or victim’s perception of criminal justice system or
compensation to the victim of crime by the criminal law and criminologist. But historically
the victim once enjoyed the golden age during which his important role was recognized
and also an emphasis was given for due consideration to compensation recognizing his
right to physical and economic well being in terms of human dignity.

The mythological heritage of any society would indicate that the concept of victim of crime
was inextricably woven with sacrifice made in the name of religion, custom and the
contemporary social rituals. It is also true that before societies created laws or rules, law
and order originated in the individual. The victim himself chose the culprit’s punishment
and, if possible inflicted it. Hence in early societies the relationship of victim and offender
primarily demonstrated a struggle for power and survival, and the right of

12
 The individual victim to take revenge was of great importance.
During Middle Ages the victim had an important role to play. Also in the Germanic
common law, the victim was of focal concern so far as the issue of crime-compensation
was concerned. Apart from this, the Law of Moses, the Code of Hammurabi, ancient
Roman Criminal and Civil Law and the Law of Twelve Tables etc. were the legislations
which included many issues relating to crime victims. During the administrative regimes
of Bot, Wergil and Anglo-Saxon- Englad and the law of Deodand in the Indian context also
provided some help to the victims of crime. This period was said to be the golden age for
the victims of crime.

2.2 The Code of Hammurabi

When we discuss the status of victims of crime in criminal justice system it is essential one
to know about Hammurabi’s Code. The noteworthy importance of the code was its concern
for the rights of victims.10 This code has been treated as the first “victim rights statute” in
history. At the same time the Code of Hammurabi is considered one of the first known
attempts to establish a written code of conduct. King Hammurabi ruled Babylon at
approximately 2000 B.C. He was the sixth King of the First Dynasty of Babylonia and
ruled for nearly fifty five years. Babylon during that period was a commercial centre for
most of the known and civilized world. Because Babylon’s fortune lay in trade and other
business ventures, the Code of Hammurabi provided a basis for order and certainty. The
code established rules regarding theft, sexual relationship and interpersonal violence, and
it was intended to replace blood feuds with a system sanctioned by the state.11 The Code of
Hammurabi was divided into five sections:

2.3 A Penal or code of laws

2.4 A manual of instruction for judges, police officers, and witnesses
2.5 A handbook of rights and duties of husbands, wives and children
2.6 A set of regulations establishing wages and prices
2.7 A code of ethics for merchants, doctors, and officials.12

10
H.Gordon, Hammurabi's code: Quaint or forward looking, (Rinehart,NewYork)1957.
11
S.Schafer, The victim and his criminal, Random House, New York,1968.
12
Masters & Roberson, Inside Criminology, Prentice-Hall, Englewood Cliffs,N.J.1985
13
 The code established certain obligations and objectives for the citizens of Babylon to
follow, these included:

1. An assertion of the power of the state. This was the beginning of state administered
punishment. Under the code, the blood feuds that had occurred previously between private
citizens were barred. Protection of the weaker from the stronger. Widows were to be
protected from those who might exploit them; elder parents were to be protected from sons
who would disown them, and lesser officials from higher ones.

2. Restoration of equity between the offender and the victim. The victim was to be made
as whole as possible and in turn forgave vengeance against the offender.

The Hammurabi Code was a nice code to take care of every section of society and it frames
the code, ethics for doctors, judges and fix the wages and prices, it also states about to take
care of weaker section of society including elders, widows and Childs. The most important
feature of this code is to prevent blood feuds and the restoration of equity between the
offender and the victim. But unfortunately, it was relatively short lived. Victims were again
to be neglected in society’s rushed to punish the offender with the result that victims rights
would not resurface again until the present century.

Babylonic law had a considerable influence on cannaites in Palestine and there are
similarities between the code of Hammurabi and the restitution of the Old Testament.
Restitution and vengeance were the theme of punishment. It provided that a thief could not
afford to compensate a victim, he becomes the victim’s property and could be sold as a
slave, the victim keeps the sale proceed as compensation. Theft was discouraged by
imposing a severe burden of restitution on the offender by compelling him to pay four or
five times the stolen property.

2.3 Other Early Codes and Laws

The Mosaic Code which is based on the assumption that God entered

14
into a contract or covenant with the tribes of Israel, had a long –lasting impact on our collective
consciousness. According to tradition, Moses returned from a mountaintop carrying the Ten
Commandments, which were inscribed on two stone tables. These commandments subsequently
became the foundation of Judeo-Christian morality. The Mosaic Code also becomes the basis for
many of the laws in our modern society. The prohibition against murder, perjury and theft were all
present in the Mosaic Code thousands of years before the founding of the United States.13

The Germanic tribes enjoyed more rights than those of Rome. By the 9th century A. D. and time
of Alford and his so called “Dooms of Alford,” the blood feud was invoked only if the victim’s
request for monetary compensation was denied. Like Hammurabi Code, each crime had a price
depending upon the types of crime committed as well as victims status, age, sex. Another important
milestone in the development of law was early Roman law; Roman law was derived from the
Twelve Tables which were written around 450 B.C. These laws had existed for centuries as
unwritten law and applied only to the ruling patrician class of citizens. A protest by the plebeian
class who were the workers and artisans of Rome caused commerce to come to a standstill. These
workers wanted the law to apply to all citizens of Rome.14 As a result the laws were inscribed on
twelve wooden tablets and prominently displayed in the forum for all to see and follow. These
tables were a collection of basic rules relating to the conduct of family and religious and economic
life.

In the middle of the first century, England was conquered by Roman legions. Roman law,
customs, and language were forced on the English people during the next three centuries
of Roman rule. When an offence was committed, compensation was paid to the victim or
to the victim’s family. If the perpetrator failed to make payments, the victim’s family could
seek revenge, usually ending in a blood feud. For the most part during this period,criminal
law was designated to provide equity to what was considered a private dispute. Inspite of
the fairly close relationship between the ancient Roman criminal and civil law, it is not
easy to find reliable information concerning the position of the victim

13
S.A.Cook, The Laws of Moses and the code of Hammurabi, Adam and Charles Black,London,1903
14
O.W.Mueller, "Tort, Crime and the Primitive",43Journal of Criminal Law, Criminology and Police Science, 303,
1955

15
 or restitution to him. According to the law of the Twelve Tables the codification of Roman
oral law, a thief who was caught in the act of committing the theft was obliged to pay
double the value of the stolen object. In cases where the stolen object was found in a search
of his house, he was to pay three times the value or four the value if he resisted the execution
of the house search. He was to pay four times the value of the object if he had stolen it by
force or threat of violence. In certain cases the kinship was exposed to the revenge of the
victim.
In the case of slander, also, the insulting person had to pay. The sum to be paid
was decided by the magistrate according to the rank of the victim, his relation to the
offender, the seriousness of the offence, and the place where it was committed. In any case,
the history of Roman law shows some general decline from its classic stage to the Justinian
period, its system of responsibility reached higher level than did any previous law.
However, it was only toward the end of the Middle Ages that the concept of restitution was
closely related to that of punishment and was temporarily included in penal law. Still the
victims role in the crime itself was not considered at all and his participation in criminal
procedure served only to gain satisfaction for his injury. At the same time the influence of
the king and the court grew, so did their share of the payment and the sums received by the
victim steadily declined. This resulted in the total payment being taken by the Crown with
the victim’s right to restitution being replaced by a fine decided by a tribunal.

2.4 Ancient Hindu Law

In the early era of history, it is established that the emphasis was on compensation
to the victim or the “spiritual” and material satisfaction of the victim, rather than on
punishment of the offender.
Reparation or the compensation as a form of punishment is found to be recognized
from ancient time in India. In ancient Hindu law during sutra period, awarding of
compensation was treated as a royal right. According to the law of Manu, 15 the offender
requires to pay compensation and pay the expenses of cure in case of injuries

15
Manu, The Progenitor of the Human race and the giver of the religious laws of Manu according to Hindu
Mythology

16
 to the sufferer and satisfaction to the owner where goods were damaged. In all cases of
cutting of a limb, wounding or fetching blood the assailant shall pay the expenses of a
perfect cure or in his failure both full damages and a fine of some amount.16

In ancient Hindu law, the law givers were fully aware of the necessity of directly
compensating of victims of crime.Thus Manuin ChapterVIII,
Verse287says:

“if a limb is injured, a wound ( is caused ) or blood (flows, the assailant) shallbe
made to pay (to the sufferer) the expenses of the cure, or whole ( both the usual amercement
and expenses as a fine to the king).”17

In ChapterVIII, Verse288, Manu says:

“He who damages the goods of another, be it intentionally or

unintentionally , shall give satisfaction to the (owner) and pay to the kind a fine equal to
the damage.”

Manu thus, provides direct reparation to the victim of crime apart from
payment of fine to the king (the state).

In Chapter XXI, Verse10, Brihaspati says:

“He who injures a limb, or divides it, or cuts it off, shall be compelled to
pay the expenses of curing it; and (who forcibly took an article in a quarrel restore) his
plunder”.

In Chapter XXII, Verse7, he says:

“ A merchant who conceals the blemishes of an article which he is selling or

mixes bad and good articles together’s or sells ( old articles) after repairing them shall be
compelled to give a double quantity (to the purchaser) and to pay fine equal (in amount) to
the value of the article”.

The law of Vishnu and Yajnavalakyas also advocates compensation to the

16
M.J.Sathna, Society and the criminal, M.N.Sethna, Jurisprudence, Bombay(1969)P.340
17
The Laws of Manu in Sacred Books of East, Max Muller, Vol.25, Oxford University Press, Oxford(1886), p.304

17
 victim of crime for their injury. Yajnavalakya, Narada and Brihaspati fix compensation
twice to the purchase (who paid the price) and a fine an equal amount, in case of fraudulent
sale of one article to another, or knowingly, selling defective articles as free from defect.
Again traders or business men who lost their property while travelling through the kingdom
were also compensated.18

According to Dr. Priyanath Sen,19 in the Hindu law of punishment of crimes

occupied a more important place than compensation for wrongs. Payment of compensation
to the individual injured was in addition to and not in substitution for the penalty. In ancient
India, it was conceived that the King was under a duty to indemnify the individual who had
suffered from a crime. As Dr. Sen has observed:

“It is, However, remarkable that in as much as it was concerned to

be the duty of the King to protect the property of his people, if the king could not restore
the stolen articles or recover their price for the owner by apprehending the thief it was
deemed to be his duty to pay the price to the owner out of his own treasury, and in his turn
he could recover the same from the village officers who by reason of their negligence were
accountable for the thief’s escape.”

Thus it can be said that in ancient Hindu law, the victim was placed in central stage
and liability to compensate and satisfy the victim was on both offender and the king.
2.5 Ancient Muslim Law
Not only in the time of the Greek, but in still earlier ages, where Mosaic dispensation
was established among Hebrews, traces of restitution to the victim are apparent. That
dispensation, in its penal department, took special and prominent cognizance of the rights
and claims of the injured persons, as against the offender.23 For example, if two men were
involved in a fight and one hit the other with a stone or with his fist with the result that the
opponent was badly injured but did not die, the perpetrator was required to pay for the loss
of the injured man's time and cause him to be thoroughly healed. For injuries both to person
property, restitution or reparation in some form was the chief and often the only element
of punishment. Among Semitic24nations

18
Arthsastra by Acharya Vishnugupta(Chanakya) C.F.P.N.Banerjee, "Compression to the victim of criminal
violence in India", The Bancras Law Journal, Vol. 12 (1976), P.110
19
Dr.PriyanathSen,"General Principle of Hindu Jurisprudence",P.335
18
The death fine was the general practice and it continued to prevail in the Turkish Empire.

For every homicide, the Mosaic code bade the elders of the murder's own city "fetch him
and deliver him into the hands of the Avenger of Blood.” Sometimes the injured persons
compounded the offences substantial money payments.

Reparation and compensation as a form of punishment is found to be recognized in ancient

times. So also during Islamic rule, restitution and atonement was a recognized form of
punishment. The Law of Moses provided four fold restitution for stolen sheep and five fold
for the more useful one.

In state of Arabia, the tribes in the cities found it necessary to provide compensation for
offences against the person in order to prevent the socially disintegrating effects of the
blood feud.
Thus, it can well be asserted that in times of yore, the victims of crime were paramount
figures on the stage of the criminal setting.

2.6 Victim in the Medieval Period

The change from vengeful retaliation to composition was part of a natural historical
process. As tribes settled down, reaction to injury or loss became less severe. Compensation
to the victim served to mitigate blood feuds, which, as tribes became more or less stable
communities, only caused endless trouble because injury would start perpetual vendetta.
Composition offered an alternative that was in many ways equally satisfactory to the
victim. In Arabia, the tribes in the cities found it necessary to provide compensation for
offences against the person in order to prevent the socially disintegrating effects of the
blood feud.
Among the German tribes, the criminal was humiliated to some extent by
compensation, which appeased the victim's desire for revenge. At this time it was assumed
that the victim should seek revenge or satisfaction. This was the only aspect of the criminal
- victim relationship that gained recognition. Among the ancient Germans, said Tacitus,
“even homicide is atoned by a certain fine in cattle and sheep; and the whole family accepts
the satisfaction to the advantage of the public weal, since quarrels are most dangerous in a
free state.
Composition combined punishment with damages. For this reason it could be
19
 applied only to personal wrongs, not to public crimes. This was only why, in its first stage
of development, it was subject to private compromise. This supports the view that during
the Middle Ages the penal law of Communities, in which crimes were paid for by
restitution, was not a law of crimes, but a law of torts.
Criminal- victim relationships were viewed only in term of the victim's revengeful
emotions and his claim for compensation. The injuring party offered monetary satisfaction
or something else of economic value. If the injured party accepted it, he was fully avenged
and the "criminal procedure" was complete. Payment was entirely to the victim or his
family. The amount depended on the importance and extent of the injury. The amount of
compensation varied according to the nature of the crime and the age, rank, sex and prestige
of the injured party; "A free norm man is worth more than a woman and a person of rank
more than a freeman."
Thus the "value" of the human being and their social position were involved in
determining compensation and a socially stratified composition developed. By the time of
Alferd in 871, the feud was resorted to only after compensation had been requested and
refused. The ‘Dooms of Alfred” provided a scale of monetary penalties whereby the
knocking out of the front teeth was calculated at a rate of eight shillings to be paid to the
victim, the knocking out of an eye tooth or a molar being calculated at four shillings and
fifteen shillings respectively. These dooms detailed the compensation for a variety of
crimes against the person.
It is difficult to pinpoint the start of new developments in community judicial
control, since the community traditionally exercised a certain collective control over the
extent of compensation. The bridge to state criminal law had as a support the system of
composition and the settlement by periodical tribal assemblies of the amount to be paid
provides an early example of judicial proceedings. Soon after the emergence of
composition, some laws elaborated an intricate system of compensation. Every kind of
blow or wound given to every kind of person had its price.20
Because of the increasing importance of economic goods the delictual conditions
started to change and the system of responsibility was transformed. Blood feud faded

20
Frederic Pollock and Frederic Willion maitlond, the History of English Law, Cambridge
University Press, Vol. II, Cambridge, (1898), P. 451

20
Out and physical retribution began to be replaced by financial compensation. The criminal
and his victim introduced the redemption of revenge and submitted the judgment of guilt
to negotiation. In most cases, the agreement on the question of compensation still involved
both interested political entities - the criminal's tribe, clan, or family and that of the victim.
It took some time until the individual offender and the individual victim stood somewhat
as they had in the era of private revenge, and negotiated guilt and punishment as two
individuals. This was the emergence of a new era in the history of victim's position and
compensation called Middle Age.
From the many differences in the amount of damages and in the "value" of the
victim, a complicated system of regulation evolved that culminated in the earlier codified
law of many people’s particularly that of the Anglo-Saxons. Several aspects of the law of
Aethelred and of Alfred are mentioned by a Clarence R. Jeffery:

"Henceforth, if any one slays man, he shall himself bear vendetta,

unless with the help of his friends he pays compensation for it within twelve months to
the full amount of the slain man's wergild, according to the inherited rank.....” The
authorities must put a stop to the vendettas. First, according to the public, the slayer shall
give security to his advocate and the advocate to the kinsmen of the slain man, that he
the slayer will make reparation to the kindred. If a man has spear over his shoulder, and
anyone is transfixed thereon, he shall pay the wergild without the fine. If a bone is laid
bare, 3 shillings shall be paid as compensation. If a shoulder is disabled, 30 shillings
shall be as compensation.35
Presumably outlay, which resulted from a failure to provide composition,
developed in connection with these tariff regulations. If the wrongdoer was reluctant to pay
or could not pay the necessary sum, he was declared a outlaw, he was to be ostracized, and
anybody might kill him with impunity.
A share is claimed by the community or king as a commission for its trouble in
bringing about are conciliation between the parties, or perhaps, the price payable by the
malefactor either for the opportunity that the community res for this of redeeming his
wrong by a money payment, or for the protection that it affords him after he has satisfied
the award against further retaliation on the part of the man whom he had injured.36
Gradually, however, the power of the community exceeded the strength of the
21
individual and the community began receiving. Part of the compensation went to the
victim-wergild and another part went to the community- Friedensgeld. In Saxon England,
compensation for criminal ffences consisted of two payments that is, one to the victim's
family (Wer, for homicide, Bot for injuries) and the other to the ruler of kind (Wite).

The next step was for the State to claim all monetary compensation due to a victim. The
growth of royal and ecclesiastical authority in the Middle Ages contributed to a sharpening
division between tort law and criminal law. By the twelfth century the victim's right to
compensation was largely replaced by fines assessed by a state tribunal against the
offender. More offences came to be considered crimes against the society or breaking the
"king's peace" so that punishment was to be malted out by the king, and the king would be
compensated. The Anglo-Saxon adopted the Germanic system of splitting fines between
victim and the ruler but whenever a crime was termed as a "breach of king's peace" the
king received the entire amount originally for a crime to breach the king's peace. It had to
affect the king's household and property directly.
The double payment continued, but gradually the king took all off it.
Discretionary money penalties took the place of the old wite, while both gave way to
damages, assessed by a tribunal. As the state monopolized, the institution of punishment,
the rights of the injured were slowly separated from the penal law. Composition as the
obligation to pay damages became separated from the criminal law and became a special
field in civil law. Thus, the victim was stripped off the financial compensation and
psychological satisfaction of avenging crime.
With this development, the "Golden Age" of the victim came to an end. It had
been an era when his possible participation in any wrong doing was not taken into
consideration. During that time, in fact, it seems inconceivable that the victim's relationship
with the criminal could have helped to develop or precipitate the crime. The criminal victim
-relationship was strictly divided between the active role of the doer and the passive role
of the sufferer. The criminal alone was responsible for the crime. The victim was merely
the injured party; he was not thought to be involved in any psychological intricacies of
crime causation and pushed his every advantage as the object of a crime that was allegedly,
caused by the criminal. He had almost dictatorial power over the settlement of

22
the criminal case; at no other time in the history of crime has the victim occupied such an
advantageous position in criminal procedure.
The state of affairs marks the closing phase of the centuries long period during
which criminal procedure was the private or personal concern of the victim or his family
and was largely under their control. The injury, harm, or other wrong done to the victim
was not only the main or essential issue of the criminal case; it was the only issue. In the
criminal procedure there was no room for societal or other considerations. The survival and
power of the group, so often the real reason behind the criminal procedure remain almost
always behind the scenes. The procedure was exclusively aimed at the private
compensation of the victim, which took the form of private revenge.
It was indeed the golden age of the victim. Criminal justice served only his private
interests. No other aspects of crime could compete with this concept in this privately owned
and privately administered criminal law.

Victimology as a distinct field of study has indeed emerged in recent years and is a
derivative of its parent discipline criminology. The word ‘Victimology’ was invented in
1947 by Benjamin Mendelsohn by deriving from the Latin “Victim” and the Greek “Logos”
meaning science of victim. The primary object of interest of victimology therefore is the
person of victim. Marvin, E. Wolfgang defines victimology as the scientific study of the
victims and process of etiology and consequence of victimisation. Victimology is also
taken to mean the study of social process by which individuals or group are maltreated in
a manner likely to give rise to social problems. The first problem which encountered in
victimology is to define, who is a victim?

The term “victim” is often one of moral approbation lacking descriptive precision
in respect of actual human behaviour. It implies more than the existence of an injured party,
in that innocence or blamelessness is suggested as well as a moral claim to a compassionate
response from others.

Merriam Webster dictionary defines victim as one that is acted upon and usually
adversely affected by a force agent as a (1) one that is injured, destroyed or sacrificed under
any of the conditions like victim or cancer, victim of autocrash, victim of murder, etc. (2)
one that is subjected to oppression, hardship or mistreatment.

23
 Oxford Dictionary of Current English defines the victim as a person or thing
injured or destroyed in pursuit of an object, in gratification of a passion, etc. or as a result
of event or circumstances (the victim of disease, of a road accident).

The U.N. declaration defines victim “as a person who has suffered physical and
mental injury or harm, material loss or damage, or other social disadvantages, as a result
of conduct by an individual or group, in violation of penal laws of the nations”.

The term “victim of crime” can thus be defined as a person who has suffered injuries
and material losses as a result of breach of criminal law. Therefore, a victim is a person
who is murdered, assaulted, raped, robbed or whose property is destroyed. The Indian Penal
Code of 1860 defines such act as offences against person, property and reputation and
prescribed punishments thereof.

Victimology is concerned with the wide range of problems. It investigates the

relationship between offender and victim in crime causation. It also deals with the process
of victimisation, of being a victim, and in this context directs much of its attention to the
problems and miseries of victim. The victim suffers various problems during the course of
investigation, prosecution, restitution etc. there is utter disappointment on the part of
victims of crime and ultimately this whole process results into violation of human rights of
victims.

2.7 Victimology Theories

In the early 1940s the victimology emerged as a new branch of criminology the
number of jurist tries to study the victimology from various angles as it has been an
interdisciplinary approach to violence and its effect on victims. Some of the jurist tries to
throw a light on victim- offender relationship, typology of victims so it is essential one to
study the various theories, of victimology.

Mendelsohn’s Theory of Victimisation

Benjamin Mendelsohn was a practicing attorney. In the course of preparing a case

for trial, he would conduct in-depth interviews of victims, witnesses and bystanders.47 He
would use a questionnaire that was prepared in simple language and contained more than
300 questions concerning the branches of criminology and
24
associated sciences. The questionnaire was given to the accused and all others who had
knowledge of the crime. Based on these studies, Mendelsohn came to the conclusion that
there was usually a strong interpersonal relationship between the offender and the victim.
In an effort to clarify these relationships further; he developed a typology of victims and
their contribution to the criminal act.48 This classification ranged from the completely
innocent victim to the imaginary victim. Mendelsohn classified victims into six distinct
categories:

1. The Completely Innocent Victim. This victim may be a child or a completely

unconscious person.

2. The Victim with Minor Guilt. This victim might be a woman who induces a miscarriage
and dies as a result.

3. The Victim Who Is as Guilty as the Offender. Those who assist others in committing
crimes fall within this classification.

4. The Victim More Guilty Than the Offender. These are persons who provoke others to
commit a crime.

5. The Guiltiest Victim. This occurs when the perpetrator(victim)acts aggressively and is
killed by another person who is acting in self-defence.

6. The Imaginary Victim. These are persons suffering from mental disorders such as
paranoia who believe they are victims.

Hence Mendelsohn have a great contribution in the development of victimology as

many scholars credit Mendelsohn with coining the term “victimology” and still others
consider him the father of victimology. His typology was one of the first attempts to focus
on victims of crimes rather than to simply examine the perpetrator. However, Mendelsohn
was only one of two early scholars who explored the relationship between victims and
offenders. The other noted early researcher in victimology was Hans Von Hentig.

25
 Von Hentig’s Theory of Victimisation

In an earlyclassical text, The Criminal and His Victim, Von Hentig explored the
relationship between the ‘doer’ or criminal and the ‘sufferer’ orvictim.21Von Hentig also
established a typology of victims.50 This classification was based on psychological, social,
and biological factors. Von Hentig established three general classes of victims: the general
classes of victims, the psychological types of victims, and the activating sufferer.
:

2.8 The General Classes of Victims

2.8.1.1 The Young. They are weak and the most likely to be a victim of an
attack. Youth is the most dangerous period of life.51

2.8.1.2 The Female. The female sex is another form of weakness recognized
by the law, because numerous rules of law embody the legal fiction of a weaker
(female) and stronger (male) sex.52

2.8.1.3 The Old. The elder generation holds most positions of accumulated
wealth and wealth- giving power, and at the same time is physically weak and
mentally feeble.53

2.8.1.4 The Mentally Defective. The feeble-minded, the insane, the drug
addict, and the alcoholic form another large class of victims.54

2.8.1.5 Immigrants, Minorities, and Dull Normals. Immigration means

more than a change in country. It causes a temporary feeling of helplessness in vital
human relations. The inexperienced, poor, and sometime dull immigrant, minority,
or other are easy prey to all kinds of swindlers.55

2.9 The Psychological Types of Victims

a. The Depressed- These victims may suffer from a disturbance of the instinct
of self-preservation. Without such an instinct, the individual may be easily
overwhelmed or surprised by dangers or enemies.56

21
Hans Von Henting, The criminal and His victim, (First Published by Schocken Books ,NewYork,1979,
Republished by Yak University Press 1984)

26
 b. The Acquisitive- This type of person makes an excellent victim. The excessive
desire for gain eclipses intelligence, business experience, and inner
impediments.57

c. The Wanton- Often a sensual or wanton disposition requires other concurrent

factors to become activated. Loneliness, alcohol, and certain critical phases
are “process- accelerators” of this type of victim.58

d. The Lonesome and the Heartbroken- Loneliness causes critical mental

facilities to be weakened. These individuals become easy prey for criminals.59 The
heartbroken victims are dazed by their loss and therefore become easy targets for a variety
of “death rackets” that might, for example, charge a widow an outlandish fee for a picture
of her late husband to be included in his biography.60

e. The Tormentor- This victim becomes a perpetrator. This is the psychotic

father who may abuse the wife and children for a number of years until one of the children
grows up and under extreme provocation kills him.61

f. The Blocked, Exempted, and Fighting- The blocked victim is so enmeshed in

such a losing situation that defensive moves become impossible. This is a self-imposed
form of helplessness and an ideal condition for a victim from the point of view of the
criminal.

g. The Activating Sufferer- This occurs when the victim is transformed into a
perpetrator. A number of factors operate as activators on the victim: certain predispositions,
age, alcohol, and loss of self confidence.

Von Hentig through his theory stated that a large percentage of victims because
of their acts or behavior, were responsible for their victimisation. This concept has since
been repudiated by modern studies which have more closely examined and defined the
relationship between the victim and the offender.

27
 Chapter III

Constitutional and Legislative Safeguards in India

Introduction

In the last chapter the researcher discusses the role of international instruments such
as United Nations, European Union and International Criminal Court, as all these
international instruments have a great contribution to strengthen the position and status of
victims of crime. Along with these international instruments, researcher also discusses the
legislative mechanisms of various countries to protect the rights of victims of crime. This
study is essential to know the initiative taken by these countries to improve the status of
crime victims under their respective criminal justice system. One more important aspect of
this study is to compare these legislative frameworks to Indian scenario as what changes
are essential under Indian criminal justice system to uplift the status and position of crime
victims. In the present chapter the researcher is analyzing and studying the various
constitutional and legislative protections given to victims of crime. The study is essential
to know the various provisions under these legislative mechanisms to protect the rights of
victim and try to know whether these provisions are sufficient to protect the interest of
crime victims.
The Constitution of India is the highest law of the land and there is nothing beyond
the constitution. According to the Kelson’s pure law theory the Constitution of India is the
grund norm means it is at top and there is nothing beyond that. The Constitution of India
takes care of every section of the society to protect their rights and at the same time it
restricts the state not to violate rights of persons guaranteed by the Constitution. The
Constitution of India guarantees equal protection to all and forbids the state from depriving
anybody’s life and personal liberty without procedure established by law1. Social justice
which is the base of the Indian Constitution has its overtones in the criminal justice system
too. The preamble of Indian Constitution itself make it clear that there is equality among
all the citizens of India and that is the reason all persons are equal before the law including
law makers and followers of the law. The Constitution of India also guarantees equal justice
to all the people of India apart from their caste and religion.

28
 Overview of the Indian Criminal Justice System

India derived its criminal justice system from the British model as Britishers ruled
this country for hundreds of years. But when we try to trace the history of Indian Criminal
Justice System we found that there are different phases of this criminal justice system. With
the passage of time the changes took place time to time in the criminal justice system as
there was no uniform criminal justice system which prevails in India. The criminal justice
system in India has evolved over a period of three thousand years. Initially, the Law or
Dharma, as propounded in the Vedas was considered supreme in ancient India and the King
had no legislative power. But gradually, this situation changed and the King started making
laws and regulations keeping in view the customs and local usages. The punishments
during ancient India were cruel, barbarous and inhuman. As regards the procedure and
quantum of the punishments there were contradictions between various Smritis and in
certain cases even among the provisions found in one Smriti itself. The system of awarding
punishments on the basis of Varna contravened the concept of equality of all human beings
as propounded by the Vedas. The penalty for crime was increasingly severe the higher the
Varna of the victim and lower the Varna of the perpetrator2. The discriminatory system of
inflicting punishments and contradictory provisions in different legal literature made the
criminal justice system defective and confusing.

During the Muslim rule in India though enlightened monarchs like Sher Shah Suri
and Akbar showed great zeal to administer justice impartially, yet as a whole the
administration of justice during the Muslim period in India suffered from defects. The
concept of equality was applicable only to the Muslim population in India and thus the bulk
of the population, i.e. non-Muslims, was subjected to humiliating discrimination. The
Hindus suffered in almost similar manner as the people of lower Varna suffered at the
hands the people of higher Varna among the Hindus. The major defect of Muslim criminal
law was that most of the crimes were considered private affairs of the individuals. Many
offences, including murder, could be compounded by the payment of ditya, i.e. blood
money and human life was considered rather cheap, capable of assessment in terms of
money.

29
The Criminal justice system developed by the Muslim rulers continued in India even after
the British took control of India. It was in 1860 that the codification of laws changed the
discriminatory provisions of Muslim criminal law.
The British after assuming power in India found the then prevailing criminal justice
administration defective and decided to bring about drastic changes in it. The major credit
goes to Lord Cornwallis who made detailed studies of the existing conditions of the
criminal justice administration and introduced many reforms to revamp the whole system.
Lord Hastings took special interest in reorganizing the police force to deal with the
criminals and maintain law and order in the country. Lord Bentinck created the post of
District and Sessions Judge and abolished the practice of sati and also supports for various
social reforms in India with an intention to eradicate the social evils from the society. In
1843, Sir Charles Napier introduced a police system on the lines of Royal Irish
Constabulary. He created the post of Inspector-General of Police to supervise the police in
the whole province. Subsequently, the Indian Police Act of 1861 was enacted on the
recommendations of a Commission which studied the police needs of the Government.
They codified the existing laws; established High Courts and Prisons. At the same time we
can not ignore the work of Lord Macaulay who is considered as father of Indian Penal
Code as this code was drafted by him in 1834 and the same was passed by the British
Parliament in 1860. Hence this was the first step to supersede the Mohammedan criminal
law and applies the code uniformly to all the people apart from their caste and religion. A
general Code of Criminal Procedure followed in 1861 and the process of superseding native
by European law, so far as criminal justice is concerned, was completed by the enactment
of Evidence Act of 1872. The Britishers through this codification of laws introduced the
principles of equity, justice and good conscience, which results into the significant
improvement in the preceding criminal laws and also in the present criminal laws as still
we follow the same code and laws which were enacted by Britishers with little but change.
Thus, the Britishers introduced reforms wherever necessary. They adopted new
principles by modifying the existing laws wherever required and made new laws where
they felt it was a must. The institutions of police, magistracy, judiciary and jails developed
during the British period still continue without significant changes in their structure and
functioning. However, the British rulers also, while restructuring the

30
criminal justice system, did not fully implement the concept of equality. The reforms

introduced by them treated all Indians and non-British Europeans equally but the Britishers

always enjoyed special privileges. It was only with the Constitution of India coming into

existence which fully recognised the right to equality before law and incorporated the same

as a Fundamental Right.
The researcher tries to analyse the development of Indian Criminal Justice system
in nutshell to understand the changes took place under the criminal justice system. From
above discussion it is clear that the Indian criminal justice system mainly based on British
model as Britishers ruled this country for hundreds of years and passed several laws and
codes which are the basic foundations of present criminal justice system. One thing is
certain due to the arrival of Britishers and the efforts taken by them, it is possible to
establish uniform criminal justice system throughout the India. As we studied how there
was discrimination during the ancient, medieval and Mughal period while treating the
wrongdoer and giving the justice to victims of crime. In present criminal justice system it
is not possible to discriminate among the citizens on the basis of caste and religion. The
only thing is that the view of criminal justice system is going to be changed to treat the
offender or wrongdoer from punitive to reformative perspective. The various jurist of the
globe feel that no criminal is a born criminal but due to some reasons the person going to
commit a crime and they also of the opinion, the society itself responsible for such act as
the fault lies somewhere in the society itself. Due to this philosophy the real sufferer i.e.
the victim becomes neglected object under the proceeding. Victims have no rights under
the criminal justice system, and the state undertakes the full responsibility to prosecute and
punish the offenders by treating the victims as mere witnesses. When we talk about Indian
criminal justice system, it is essential one to know the nature and workingof this system as
it is essential to know that what kind of protections given to victims of crime and what are
the provisions related to crime victims. The Indian criminal justice system governed by
mainly four laws:
1) The Constitutional Law of India
2) The Indian Penal Code
3) The Criminal Procedure Code
4) The Indian Evidence Act
31
3.3 The Constitutional Law of India
The Constitution of India is remarkable for many outstanding features which will
distinguish it from other Constitutions even though it has been prepared after “ransacking
all the known Constitutions of the world” and most of its provisions are substantially
borrowed from others. As Dr. Ambedkar observed:
“One likes to ask whether there can be anything new in a Constitution framed at
this hour in the history of the world. More than hundred years have rolled when the first
written Constitution was drafted. It has been followed by many other countries reducing
their Constitution to writing… Given these facts, all Constitution in their main provisions
must look similar. The only new things, if there be any, in a Constitution framed so late in
the day are the variations made to remove the faults and to accommodate it to the needs of
the country.”

So, though our Constitution may be said to be a ‘borrowed’Constitution, the credit

of its framers lies in gathering the best features of the existing Constitutions and in
modifying them with a view to avoiding the faults that have been disclosed in their working
and to adapting them to the existing conditions and needs of this country. So, ifit is a
‘patchwork’, it is a beautiful patchwork.
From the above discussion it is clear that our Constitution is the mixture of all
worlds Constitution but the framers gather the best things, the things which suited to Indian
culture. Indian Constitution is the unique Constitution of the world which takes care of
each and every section of the society. The most important feature of the Constitution is the
fundamental rights as the framers of Constitution added a separate chapter in our
Constitution i.e. Part III of the Constitution, which talks about most sacred, inalienable,
natural and inherent rights i.e. fundamental rights.
As we already discussed the Constitution of India is the highest law of land and the
three major wings of the state i.e. Legislature, Executive and Judiciary works as per the
powers conferred to them and ultimately within the sphere of four corners of Indian
Constitution. When we talk about Indian criminal justice system, we found that it is the
integral part of the Constitution and works for to give justice to the person or citizen. The
‘Rule of Law’ is the basic feature of the Indian Constitution and the same thing is obligated
on the criminal justice system. Hence, we can say that the Constitution of
32
India takes utmost care and caution to protect the rights of every person. When we try to
analyse the Constitutional protection to victims of crime, there are several provisions
under the Constitution which protects the rights of victims. The Indian constitution has
several provisions which endorse the principle of victim compensation. The guarantee
against unjustified deprivation of life and liberty and obligates the state to compensate
victims of criminal violence. Also constitutional law guarantees protection of arrest and
detention in certain cases.

The principle of the state accepting legal liability for criminal injuries suffered by
its citizens is an acknowledgement of states obligation for protection of human rights. Itis
also in public interest as it tends to strengthen the criminal justice system and promote
general welfare according to the directive principles of the state policy.

Hence, ultimately we can say that the social justice will never be meaningful or
complete in the absence of justice to the victims of crime. The human values of Part III
and Part IV of the Constitution also have vital bearing on the criminal justice. “We the
people of India, justice-social, economic and political, “equal protection of law”; “dignity
of the individual”; basic freedom, fair procedure and free legal aid-these and other
provisions enshrined in the constitution humanize the system of social defence through
criminal law. These rights and values are implicit in our constitution, which however, have
been innocently ignored by the criminal justice system – that is by the Police, Prosecutors
and Courts.
3.4 Indian Penal Code

Indian Penal Code was the first codified law passed by the British Parliament in
1860 for India with an intention to have a uniform criminal law to punish the wrongdoer or
offender. As we already discussed, how the Muslim criminal law was discriminatory one
which discriminate on the basis of religion and during that period crime was considered as
private affair of the individuals. This was the major reason Britishers decide to have a
uniform law to establish criminal justice system and finally they constituted the First Law
Commission under the chairmanship of Thomas Babington Macaulay9 who took
tremendous efforts and prepared the draft of Indian Penal Code in 1834. Its basis is the law
of England freed from superfluities, technicalities and local

33
peculiarities. Elements were also derived from the Napoleonic Code and from Edward
Livingston’s Louisiana Civil Code of 1825. The first final draft of the Indian Penal Code
was submitted to the Governor-General of India in Council in 1837, but the draft was again
revised. The drafting was completed in 1850 and the Code was presented to the Legislative
Council in 1856, but it did not take its place on the statute book of British India until a
generation later, following the Indian Rebellion of 1857. The draft then underwent a very
careful revision at the hands of Barnes Peacock, who later became the first Chief Justice of
the Calcutta High Court, and the future puisne judges of the Calcutta High Court, who were
members of the Legislative Council, and was passed into law on 6th October,1860. The
Code came in to operation on 1stJanuary,1862.
Unfortunately, Macaulay did not survive to see his masterpiece come into force, having
died near the end of 1859.

It is pertinent to note that the Law Commission did not base its Draft Penal Code on
either the then penal law prevailing in different provinces or the penal law system premised
on the Mohammedan or Hindu law. The Commission reasoned:

the criminal law of the Hindus was long ago superseded… by that of the
Mohammedans… The Mohammedan criminal law has in its turn been superseded, to a
great extent, by the Regulations. Indeed, in the territories subject to the Presidency of
Bombay, the criminal law of the Mohammedans, as well as that of the Hindus, has been
altogether discarded, except in one particular class of cases; and even in such cases, it is
not imperative on the judge to pay any attention to it. The British Regulations having been
made by three different legislatures contain, as might be expected, very different
provisions.

The object of this Act is to provide a general penal code for India11 and this code sub-
divided into twenty three chapters, comprises five hundred and eleven sections. The Code
starts with an introduction, provides explanations and exceptions used in it, and covers a
wide range of offences. This was the first attempt to prescribe or to give a detailed list of
offences and the punishment for the same. The word ‘offence’ defined as except in the
Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence”
denotes a thing made punishable by this Code. The act or omission which is
34
prohibited by this Code is liable to punish as the punishment prescribed by the Code. The
kinds of punishment13 prescribed under the Code and these are the only punishment which
prevails in India and other kinds of barbaric punishments are abolished from society.

It is pertinent to note that the Indian Penal Code 1860 which has been amended only
sparingly since its enactment in the post-British era is in operation as a major substantive
penal law of India since about the last 150 years. Only three chapters namely, offences
relating to criminal conspiracy, election and cruelty to married women, have been added to
its original 23chapters. Recently the Criminal Law(Amendment)Act,2013 took place which
makes the changes mainly related to sexual offences against women i.e.Sect.354 and 376
of IPC. This amendment has a history of Delhi gang rape case i.e. Nirbhaya Case, a college
going girl brutally raped in moving bus that resulted into huge cry against Government and
finally Government appointed a three member committee under the chairmanship of Justice
J. S. Verma to make the amendment in the existing laws to prevent the sexual offences
against the women. The Verma Committee suggests several changes in the existing
provisions but Government does not accept all the suggestions of this committee but finally
took decision to make the amendment and tries to impose the stringent punishment for such
offences.

The main purpose behind this amendment is to protect victims of sexual offences,
as several such offences are gradually going to be increased against woman and they feel
insecured. When we talk about outraging modesty of woman, the punishment given under
S.354 is not sufficient one and that is the reason the punishment under section 354 extended
up to five years and inserted few things under the same section to give wider protection to
woman. The main object of this section is to protect the women from outraging her
modesty. In order to seek conviction under S.354, the prosecution has to prove not only
that the accused assaulted or used criminal force to the woman but also that he did it with
either the intent to outrage her modesty or the knowledge that it would outrage her
modesty.16 However, what constitute an outrage to modesty of a woman is nowhere
defined. It can be described as the quality of being modest and in relation to
woman‘womanproprietyofbehavior,scrupulouschastityofthought,speechand

35
conduct, reserve or sense of shame proceeding from instinctive a version to impure or coarse
suggestions’. It is a virtue attached to a woman owing to her sex.

To protect the woman from outraging her modesty, new sections are inserted in
Section 354 as Ss.354-A, 354-B, 354-C and 354-D by way of Criminal Law(Amendment)
Act, 2013. The new provisions are related to sexual harassment, voyeurism and stalking,
these provisions are important one to give more protection to Indianwoman. If we analyze
the definition of the term sexual harassment given under S.354-A, we find that the key
ingredients covered under the definition have been dealt under section 294and section 509
of the IPC. The two sections cover the offense of sexual harassment of woman. The only
thing is that the punishment is so meager under both the sections as this punishment is not
sufficient one seeing the present scenario of India, where the offense of sexual harassment
has increased by leaps and bounds, and the offenders managing to escape the liability
because of such meager punishment, but now we cannot Say like this as the punishment
extended upto five years for such offences.

In modern era due to the advancement of technology which leads to various

offences against woman and considering the same thing the two more offences added or
inserted in S.354 i.e. voyeurism and stalking as S.354-C and S.354-D respectively to
protect the woman and their dignity. In both the cases, the men tries to take the undue
advantage of such technology as in case of voyeurism, the man tries to watch or capture
the images of woman engaging in a private act in circumstances where she would have the
expectation of not being observed either by the perpetrator or by any other person. In case
of stalking, a person cannot try to follow any woman throughinternet, email, mobile or any
kind of electronic communication repeatedly despite a clear indication of disinterest by
such woman. In both the cases, such offences are liable to be punished and the punishment
extended up to seven years. I think this is a welcome step on the part of Government to
give wider protection to women and prevent any kind of sexual harassment of woman.

Another change brought by this Criminal law (Amendment)Act,

2013 is related to the offence of rape as this amendment redefines the offence of rape and

36
 imposes severe punishment for such offence. The offence of ‘rape’ is the most brutal and

heinous offence against the woman as it is the murder of soul of woman. It is ‘the ravishment

of a woman, without her consent, by force, fear or fraud’, or ‘the carnal knowledge of a

woman by force against her will’.22 Rape is the fourth most common crime in India.

According to the National Crime Record Bureau 2013annual report, 24,923 rape cases were

reported across India in 2012.This is one fact relating to offences of rape in India as how

such crimes are going to be increased and another thing which compelled the legislature to

amend the existing provision, is Delhi gang rape case i.e. ‘Nirbhaya Case’ and finally

Government redefine the offence of rape under S.375 of IPC.

The S.375 defines rape as, A man is said to commit" rape" if he–

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of
another person or makes the person to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of another person or makes the person to do so with him or
any other person; or

(c) manipulates any part of the body of another person so as to cause penetration into
the vagina, urethra, anus or any part of body of such person or makes the person todo so
with him or any other person; or

(d) applies his mouth to the penis, vagina, anus, urethra of another person or makes
such person to do so with him or any other person, under the circumstances falling under
any of the following seven descriptions:-
First.–– Against her will.

Secondly.––Without her consent.

Thirdly. –– With her consent when her consent has been obtained by putting her or

any person in whom she is interested, in fear of death or of hurt.

22
StateofMadhyaPradeshv.SantoshKumar(2006)6SCC1.
37
 Fourthly. –– With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married.

Fifthly.–– With the consent when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.

Sixthly.––With or without her consent, when she is under eighteen years of age.

Seventhly.––When she is unable to communicate consent.

Explanation 1.–– For the purposes of this section, "vagina" shall also include labia
majora.

Explanation 2.–– Consent means an unequivocal voluntary agreement when the woman
by words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific act:

Provided that, a woman does not physically resist to the act of penetration shall
not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.-A medical procedure or intervention shall not constitute rape.

Exception 2. –– Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.

When we try to analyse the definition of rape given under this section, it is clear
that the legislature widened the scope of offence of rape. The number of changes
brought by way of this amendment as it does not restrict to penal-vaginal penetration,
it tries to cover all forms of insertion i.e. any object or part of body, not being the

38
penis, into the vagina, the urethra or anus. Initially it was very difficult to punish
offender for such act or it create confusion in the mind of police while framing the
charges against the offender. As earlier it was restricted to penetration whether it was
slightest or complete it doesn’t makes any difference to constitute the offence of rape
but now it covers all forms of penetration other than penal-vaginal penetration. Here
the researcher likes to discuss one high profilecase19where same issue was raised as the
insertion of object, finger into private part of woman amounts to rape or not ? In this
case the present Union Financial Minister Mr. Arun Jaitly argued on behalf of Smt.
Zhakuand he strongly states that, it is essential to widen the definition of rape and cover
all such forms into the definition of rape. More elaborately he urged that to interpret the
terms ‘sexual intercourse’ and ‘penetration’ used in a S.375 in such a way as to bring
within their ambit not only penile-vaginal penetration but also penetration of any part
of his body (like fingers) or any foreign object (like stick or bottle) into bodily orifice
of woman (vagina, anus or mouth). But unfortunately the court ruled that ‘sexual
intercourse’ and ‘penetration, mean only the penile-vaginal penetration. Further the
high court held that it is for the legislature and not for the judiciary to give wider
interpretation to the words ‘sexual intercourse’ and ‘penetration’. Now the legislature
took the appropriate step to widen the definition of rape through the amendment 2013,
as the definition of rape includes penile and non- penile penetration in bodily orifices
of a woman by a man.

Anotherchangeisrelatedtoageofconsentastheageisincreasedfrom16yearsto18
yearsmeansifthegirlisbelow18yearsherconsentis immaterial. This might be because the
legislature feels that the age of ‘juvenile’20 is 18 years so it is appropriate to increase
the age of consent. Another thing is that the criminalization of marital rape is not done
as it kept as it is in spite of the recommendations of J. Verma Committee. The severe
punishment imposed for Gang rape as twenty years or life imprisonment means the
offender has to spend entire life in jail for such offence and fine; further provided that
fine imposed under this section shall be paid to victim.

In order to provide treatment as early as possible to the victim of crime, the

liability imposed on hospitals to give necessary treatment to such victims otherwise
they may came within the purview of criminal law. As per Section 357C of the CrPC
(Criminal Law Amendment Act 2013), hospitals (both public and private) are required
to provide free treatment to survivors of sexual assault. This cannot be

39
denied for the want of a police requisition. Refusal to provide medico - legal
examination and treatment is punishable by imprisonment for up to 1 year or fine or
both. This is a welcome step to curtail the general tendency of hospitals not to intervene
unless and until there is a direction from police, but due to such express provision such
tendency might be curtailed.

The incidences of Acid attack are gradually going too increased in our society
and number of women becomes victims of such incidents. The main victims of acid
attack are girls and women specially when they refuse any proposal of men, men
brutally commit such act and ruin the life of girl so such girls spend their future life
very miserably and without anybody’s support. The main lacuna of offence is that there
is no such specific legislative provision to punish such offenders, but fortunately same
thing recommended by Justice J. S. Verma Committee and the recommendation
accepted by Government and inserted new sections i.e.S.326-Aand S.326-Bto punish
acid attackers. The S.326-A states that, voluntary causing grievous hurt by use of acid,
etc.-

Whoever causes permanent or partial damage or deformity to, or burns or

maims or disfigures or disables, any part or parts of the body of a person or causes
grievous hurt by throwing acid on or by administering acid to that person, or by using
any other means with the intention of causing or with the knowledge that he is likely to
cause such injury or hurt, shall be punished with imprisonment of either description for
a term which shall not be less than ten years but which may extend to imprisonment for
life and with fine.

Provided that such fine shall be just and reasonable to meet the medical
expenses of the treatment of the victim:

Provided further that any fine imposed under this section shall be paid to victim.
Further S.326-B deals with voluntary throwing or attempting to throw acid.-
The Section reads, whoever throws or attempts to throw acid on any person or
attempts to administer acid to any person, or attempts to use any other means, with the
intention of causing permanent or partial damage or deformity or burns or maiming or
disfigurement or disability orgrievous hurt to that person, shall be punished with
imprisonment ofeither description for a term which shall not be less than five years but
which may extend to seven years, and shall also be liable to fine.

40
 Explanation 1.–– For the purposesofsection326Aandthis section, “acid”
includes any substance which has acidic or corrosive character or burning nature,
that is capable of causing bodily injury leading to scars or disfigurement or
temporary or permanent disability.

Explanation 2. - For the purpose of section 326-A and this section permanent
or partial damage or deformity shall not be required to be irreversible.

For the first time such express provisions are inserted under IPC to punish the
acid attackers and an other important thing is there is direct provision to pay the
compensation to such victims of acid attack. The JusticeVerma Committee suggest to
impose fine up to ten lakh rupees but this suggestion is not accepted by the Government.
The question of identity is another problem related to victims of rape but such problem
is taken into consideration by the law makers as they include such provision, which
states that whoever prints or publishes the name or any matter which may disclose the
identity of victim is liable to be punished and such punishment is extended up to two
years and shall also be liable to fine. I think this is very useful provision under IPC as
once identity is disclosed it is not possible for such victims to survive in society.
Now a days the offences against woman are going to be increased, specially
the sexual offences against them and such thing is not good for societal harmony and
ultimately this results into a question of law and order. The half of the population of
our country is population of woman and if they feel insecure means somewhere some
problem is in society. The former Union minister Mr. L. K. Advani commented on the
offence of rape, “Offence of rape is much more heinous crime than murder because
rape reduces a woman to a state of living corpse.” This Criminal Law (Amendment)
Act, 2013, specially related to IPC, is important one to protect the victims of sexual
offences. These provisions will be helpful to minimize such offences against the
woman in society.

3.5The Criminal Procedure Code

The essential objective of criminal law is to protect society against criminals

and law-breakers. For this purpose the law holds out threats of punishments to
prospective law-breakers as well as attempts to make the actual offenders suffer the
prescribed punishments for their crimes. Therefore, criminal law in its wider sense
consists of both the substantive criminal law and the procedural criminal law.

41
Substantive criminal law defines offences and prescribes punishments for the same,
while the procedural criminal law is to administer the substantive law. In the absence
of procedural criminal law, the substantive criminal law would be almost worthless.
Because, without the enforcement mechanism, the threat of punishment held out to the
lawbreakers by the substantive criminal law would remain empty in practice. Empty
threats do not deter, and without deterrent effect, the law of crimes will have hardly
any meaning or justification.

The code of Indian criminal procedure was passed by Britishers in 1861 as like IPC
passed in 1860.The main reason to pass this code is to have uniform code, as that time
there was no uniform procedure to prosecute and punish the offender. When we try to
trace the history, we found that in medieval India, subsequent to the conquest by the
Muslims, the Mohammedan Criminal Law came into prevalence. The British rulers
passed the Regulating Act of 1773 under which a Supreme Court was established in
Calcutta and later on at Madras and in Bombay. The Supreme Court was to apply
British procedural law while deciding the cases of the Crown’s subjects. After the
Rebellion of 1857, the crown took over the administration in India. The
CriminalProcedureCode,1861 was passed by the British parliament. The 1861code
continued after independence and was amended in 1969. It was finally replaced in
1972.

The Code of Criminal Procedure (CrPC) is the main legislation on procedure for
administration of substantive criminal law in India. It was enacted in 1973 and came
into force on 1 April 1974. It provides the machinery for the investigation of crime,
apprehension of suspected criminals, collection of evidence, determination of guilt or
innocence of the accused person and the imposition of suitable punishment on the
guilty person. Additionally, it also deals with public nuisance, prevention of offences
and maintenance of wife, child and parents. It takes care of all kinds of victims to
protect their rights.

The Criminal Procedure Code also controls and regulates the working of the
machinery set up for the investigation and trial of offences. On the one hand it has to
give adequately wide powers to make the investigative and adjudicatory processes
strong, effective and efficient and on the other hand, it has to take precautions against
errors of judgment and human failures and to provide safeguards against probable
abuse of powers by the police or judicial officers. This often involves “a nice

42
balancing of conflicting considerations, a delicate weighing of opposing claims
clamoring for recognition, and the extremely difficult task of deciding which of them
should predominate”. In short the Code takes precautions while conferring the powers
on the part of competent authorities not to results into any kind of injustice to victims
of crime.

3.6 Indian Evidence Act

The object of every judicial investigation is the enforcement of a right or liability

that depends on certain facts. The law of evidence can be called the system of rules
whereby the questions of fact in a particular case can be ascertained. The term
‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show
clearly, to discover, to ascertain or to prove.’ In short the law of Evidence plays an
important role to prove or to decide the matter in the competent court.
The enactment and adoption of the Indian Evidence Act was a path- breaking
judicial measure introduced in India, which changed the entire system of concepts
pertaining to admissibility of evidences in the Indian courts of law. Until then, the rules
of evidences were based on the traditional legal systems of different social groups and
communities of India and were different for different people depending on caste,
religious faith and social position. The Indian Evidence Act introduced a standard set of
law applicable to all Indians.

When we try to trace the history, in ancient period we do find elaborate

discussion on the rules of evidence in the Sanskrit books. However during Muslim
period not much material is to throw light with respect to the Law of Evidence applied
at that time. It was in 1726 when rules of evidence, when were prevailing in England
under Common Lawand Statute law came to be introduced in our country. During the
period of 1835-1855 at least eleven enactments were enforced which dealt with the
subject of evidence.

The Bill of present Act of 1872 was prepared by Sir James Stephen who was
entrusted as a law member with this work in 1871.He did this act very nicely as even
today we follow the same act with least changes being made during the past 130years.
And that is the reason, Sir James Stephen who could be called the founding father of
this comprehensive piece of legislation.

43
In the process of delivering justice the Courts have not only to go into the facts of the
case but also to ascertain the truthfulness of the assertions made by the parties. The area
of assertions and ascertainment of its truthfulness is governed by the Law of Evidence.
It is the procedural side of law which lays down the rules for the guidance of the Courts
upon the questions of reaching to the truth and getting assertions and facts proved before
it. Assertions consist of facts, some of which are disputed and some are proved ones.

There is special protection given to victim not to participate in investigation

process to avoid his trouble, as after filling complaint and taking cognizance of the case
by the Magistrate, the victim thereafter does not participate in the investigation except
by being called to confirm the identity of the accused or the material objects, if any,
recovered during the course of investigation.

Every accused person is innocent until it proved to be guilty that to beyond all
reasonable doubt, this is the cardinal principle of criminal justice system and that is the
reason the burden shifted on the part of prosecution lawyer to prove the guilt of accused
beyond all reasonable doubt. But under the Act there are some provisions where the
burden shifted on the accused person to prove his innocence. In cases of offence of rape,
the consent plays the vital role to prove the case, but there is presumption as to the
absence of consent94 where the woman raped and ultimately such burden shifted on the
part of accused to prove how there is consent.

To maintain and preserve the dignity of victim, recently some token

amendments have been made, as Section 155(4) of Evidence Act permitted the
impeachment of the credibility of a prosecutrix by reference to her general “immoral
character”, now stands repealed. At the same time the Act prohibits the disclosure of
the identity of the victim in any publication concerning the offence.95 There is yet no
provision in the law mandating ‘in-camera’ trials particularly when the victim is child
or woman.

Thus the law of Evidence is relevant in deciding the above issues in reaching to
a conclusion, decision upon some disputed issues; facts. This act is useful to prove the
case to give the justice to the victims. Without taking the help means it is essential one
to follow the procedure given under this act to prove the case. In short it is a

44
Procedural law which provides, interalia, how a fact is to be proved.

The researcher discusses the entire criminal justice system and its various
components as this criminal justice system governed by four laws i.e. Indian
Constitutional law, Indian Penal Code, Criminal Procedure Code and Indian Evidence
Act. The researcher try to throw light on various provisions under each law related to
victims of crime and also discuss how these provisions are adequate or inadequate to
protect the interest of victim. Though the researcher in next chapter tries to trace out
various hurdles while implementing the same provisions to give justice to victims of
crime, but at this stage it is important one to observe and analyze these provisions
related to victims. So it is an attempt on the part of researcher to proceed his work to
find out various loopholes and problems emerged during the entire process of criminal
justice system, so study will be helpful to give necessary and effective suggestions to
upheld the status of victims of crime under the Indian criminal justice system. As we
discuss various provisions Under the Code of Criminal Procedure and other laws but it
is also necessary to study some special laws which are to be enacted to give protections
to certain kinds of victim. These special laws are in addition to the above discussed
laws, as researcher feel that it is equally important to study these laws.

3.7 Probation of Offenders Act, 1958

This Act is enacted with an intention to release the offender on probation rather
than to put them behind the bar. The purpose of the act is to stop conversion of youthful
offenders into stubborn criminals as a result of their association with hardened criminals
of mature age. The Probation of offenders Act empowers a trial court, at its discretion,
to release an offender after due admonition (in certain specified offences) and on
probation of good conduct in suitable cases.

The Act enables the court to release the offender under Sections 3 and 4 at its
discretion, and also the court have power to grant ‘reasonable compensation’ to any
person for ‘loss or injury’ caused to him by commission of the offence and ‘costs’ of
the proceedings as the court think reasonable. Section 5 of the Probation of Offenders
Act empowers the court, releasing an offender after admonition or on probation of good
conduct, to grant compensation and costs in appropriate cases. The
phraseologyofthissectionmakesitamplyclearthatsuchapowervestsonlywiththe

45
court releasing an offender and is purely at its discretion. Even an appellate court or the
High Court cannot interfere unless it is of the view that the lower court has exercised
such power capriciously and unreasonably.

The act on one hand protect the offender of specific category such as the person
who is of first offender of any age, young male adult offenders under twenty- one years
of age and female offenders of any age. Andon another hand to protect the interest of
victim who suffered ‘loss or injury’, he is entitled to get compensation for such ‘loss or
injury.’ Hence we can say that the act tries to make a balance to protect the interest of
young offenders and victims of crime. When we try to discuss about the compensatory
provision under the Probation of Offender Act, we found that the Section 5 of the act
gives a limited discretionary power for the court to order reasonable compensation for
loss or injury in cases where the accused is released after admonition or on probation.
But such power is circumscribed in the sense that in such cases there should be
provision for grant of probation.

The another thing is that once the court order to pay compensation and release
the offender on probation, the appellate court, a High Court or a Session Court, in
exercise of its power of revision, don’t have any power to interfere with such decision97
and also the compensation and costs of the proceedings awarded under Section 5(1) (a)
and (b) of the act does not have any nexus with the amount of fine and penal element
imposed for the offence for which the offender is prosecuted.
Hence we can say that the victim is entitled to get the compensation for the loss or injury
which he suffered but the only thing is that this power is subject to release the offender
after admonition or on probation of good conduct.

3.8 Fatal Accident Act, 1855

In order to give effective rights to the person injured or expired in an accident Fatal
Accident Act was enacted in India. One will be surprised to know that even before the
enactment of the Indian Penal Code, 1860 (IPC), The Fatal Accidents Act was brought
on the statute book in 1885 to provide compensation to the families (dependents) for
the loss occasioned by the death of a person caused by actionable wrong.

However, in view of the time consuming, lengthy, expensive and cumbersome

46
 procedure in civil litigation, the victims have hardly resorted to the provisions of the
Fatal Accidents Act. This Act provided only a procedure and a right of named legal
heirs to claim compensation from the person committing negligence. Moreover, the
provisions have become obsolete in view of other options available to the victims to
claim compensation. This enactment has worked in India for a comfortable long period.
3.9 Motor Vehicles Act, 1988

In view of large-scale accidents taking place on roads due to rash and negligent
driving or otherwise, a separate provision has been made for providing compensation
to the victims, under the Motor Vehicles Act, 1988. Chapter X of the Act of 1988 in
Sections 140 to 142 provides for compensation to the victims, even without fault in
certain cases to avoid hardship to the dependents, namely, wife, children and parents
due to the loss of the deceased or to the victim becoming permanently disabled.

Sections 140 to 144 provides for interim compensation on ‘No Fault’ basis.
According to this provision Rs.50, 000 /- is to be given to the kith and kin of the
deceased and Rs.25, 000 /- to the grievously injured victim. The compensation under
Section 140 is made payable if prima facie evidence of following is available:

1. Accident by the offending vehicle.

2. Offending vehicle being injured.
3. Death or grievous injuries have been caused.
Unlike to main claim petition negligence is not required to be proved and this
compensation is not refundable even if negligence is not proved in the main application.
Under Chapter X for interim award insurer is not even permitted to raise any defence
relating to negligence of applicant or permitted under Section 149 of Motor Vehicle Act.
But, if ultimately it is held that insurer is not liable to pay compensation victims can
recover from owner.

The act has taken necessary precaution to pay compensation to victims or their
dependents as at the initial stage of the claim there is the provision of ‘No Fault’ liability
that will help the victims or their dependents. Hence we can say that, to avoid anomalies
and simplify the procedure the Act has provided for standard amount of

47
Compensation payable in such cases.

There are also significant developments in the form of new laws to promote the
cause of victims and to mitigate the sufferings of potential victims of vulnerable
sections of the population such as women, children and elders. The Indian Constitution
confers such power on the state to enact special legislations to protect the vulnerable
section of the society. The recent enactments passed by the Parliament have a
significant bearing on preventing victimization and giving relief to victims.

3.10 Protection of Women from Domestic Violence Act, 2005

The problem of domestic violence and crime against women is not new. Women
in the Indian society have been victims of humiliation, torture and exploitation for as
long as we have written words of social organization and family life. Today, women
are being gradually recognized as important, powerful and meaningful contributors to
the life of men; but till a few decades back, their condition was pitiable. In spite of the
legislative measures adopted in favour of women in our society after Independence
countless women still continue to the victims of these crimes. They are beaten, raped,
burnt and murdered.
“The Protection of Women from Domestic Violence Act, 2005” is a major
achievement of the women’s movement towards protection of domestic violence
victims after a struggle of several years. This Act aims to provide for more effective
protection of the rights of women guaranteed under the Constitution. The definition of
domestic violence is wide enough to include physical, sexual, verbal and emotional
abuse. The unique feature of the Act is that it prohibits denying the victim “continued
access to resources or facilities which the aggrieved person (victim) is entitled to use or
enjoy by virtue of the domestic relationship, including access to the shared household”.
The Act is not passed so easily by the Parliament of India; there was a movement to
pass such act. Prior to passing this act, there was few provisions inserted under Indian
Penal Code by way of Criminal Law (Amendment), Act, 1983 and 1986 which are
related to some forms of violence within the home and make them punishable. Section
408A, was inserted in the Indian Penal Code punishing husband and his relatives for
perpetrating cruelty upon the wives. Cruelty was defined broadly enough to encompass
physical as well as mental cruelty.

48
 However, initially the police refused to register cases under this provision
unless there were allegations of dowry demand and it was after much struggle that
women are now able to get the same registered, even if there is no demand of dowry.
Though, its linkage with the dowry has considerably reduced its efficacy for women.
The Criminal Law (Amendment) Act, 1986 added a provision in the Indian Penal Code
categorizing and penalizing dowry deaths separately under Section 304B. Under the
law, where an unnatural death of a woman happens within seven years of her marriage
and it is shown that she was harassed soon before her death. The offence is punishable
with a minimum of seven years and a maximum of life imprisonment.
So far as this provision is concerned there have been many positive judgments. Most
of the acquittals however, are based on the fact that the acts of cruelty or harassment
in connection with dowry were not committed “soon before her death’. The
Interpretation of the expression “soon before her death” differs from judge to judge
depending on their sensitivity.
The lawyers Collective, an NGO working in the field of human rights, drafted
a model law on domestic violence in 1992 which was widely circulated. In 1994, the
National Commission for Women set-up a Committee to look at this law. It then drafted
a proposed law to safeguard women from domestic violence. Thereafter in 1998, the
Lawyers Collective drafted the Domestic Violence to Women (Prevention) Bill in
consultation with various women’s groups. The bill was drafted in accordance with the
U. N. Framework for Model Legislation on Domestic Violence and had the broad
support of the women’s movement to its major provisions. After much pressure from
the women’s groups, the Government of India introduced a bill on domestic violence
in Lok Sabha.100 Finally the bill passed in the Parliament on 13th September, 2005 and
came into effect on 26th October, 2006.
The Act defines ‘domestic violence’101 which refers to any act harmful or injurious to
women which endangers or abuses her mentally or physically, forces her to perform
any unlawful requirement including dowry, threatens the person or relative of the
women by any manner and other acts prescribed under the Act.
The Act entrusts the duty on the public to inform the protection officer
regarding any problem of domestic violence which has happened or likely to happen
and such person giving information shall not be legally liable for such intimation.102
The authority who have received the information or present at the place of incidence

49
shall inform the woman regarding her legal rights and services available and her right
to lodge a complaint under Section 498- A of the Indian Penal Code. The concerned
authorities shall make available to the women shelter under the shelter home by
informing the situation to the officer in charge of the shelter home.
A police officer, protection officer or a magistrate who has received a complaint
of domestic violence has a mandatory duty to inform the victim of her right to obtain a
protection order or an order of monetary relief, a custody order, a residence order, a
compensation order or more than one such order and the availability of the services of
service providers, protection officers, and the right to free legal services under this Act.
A violation of the protection order by the respondent is an offence which can result in
imprisonment for one year or a fine up to Rs.20, 000 or both. If the protection officer
refuses to discharge his duties, he shall be punished with imprisonment for one year or
with a fine of 20,000 rupees or with both. The protection officer plays an important role
to take care of such victims and that is the reason the State Government shall appoint
qualified and experienced persons as protection officers, particularly women in each
district for exercising the powers and functions as prescribed under the Act. The
protection officer shall help the magistrate in discharging his functions to report the
incident of domestic violence to the magistrate and service providers, to submit an
application for relief order on behalf of the aggrieved person to guarantee free legal aid
to the women to arrange shelter home, to conduct medical examination of the women
etc.
The Act entrusts duty on the Central and State Governments to take steps to give
media hype to the provisions of the legislation, conduct training for the government
officials to spread awareness regarding the issues highlighted by the Act and enhance
the co-ordinate efforts of the ministry and concerned departments to deal with issues
connected therewith.
This act is a nice piece of legislation to protect the victims of domestic violence
as such violence is a phenomenon that cuts across boundaries of ethnicity and age. This
act may minimize such incidents against women in our society. But it is equally true
that due to various social and financial factors, the victims unable to leave the abusive
situation and continues to suffer. The woman takes domestic violence as apart of their
life and they don’t come forward to file a complaint for such violence.

50
 Chapter IV

Criminal Justice Delivery System in India: An

Analytical Overview
4.1 Introduction

In the last chapter the researcher discusses in detail the Indian Constitutional
and legislative safeguards to protect the rights of victims of crime. The
researcher tries to analyse these provisions in detail and to interpret these
provisions to know the applicability of such provisions to protect the interest
of victims of crime. The Constitution of India takes utmost care and caution to
protect and help victims of violation of human rights.

The Code of Criminal Procedure is the main procedural law to protect

the rights of victims of crime. The Code have various provisions to deal with
victims of crime, the researcher analyses these provisions in the last chapter
with an intention to find out the specific provisions related to victims of crime.
Along with this Code, the researcher also gone through with Indian Penal Code
and Indian Evidence Act to know the various provisions which have concern to
victims of crime. To study the procedural laws and substantive law is essential
to have a complete glance to know the various provisions related to crime
victims.

The researcher has already discussed the constitutional and legislative

mechanism to protect the rights of crime victims in the last chapter; in the
present chapter the researcher tries to trace out the various hurdles while
implementing the legislative provisions to protect the rights of crime victims.
The Indian legislative mechanism always tries to give justice to victims by
punishing the offender with appropriate punishment. Hence, in this chapter the
researcher intended to find out various loop holes in the existing criminal
justice system and to give appropriate suggestions to uplift the status and
position of victims of crime.

To trace out the hurdles in the path to give justice to victims, it is essential
one to know the nature of Indian criminal justice system. We know that there
are mainly two types of criminal justice systems in the world i.e.

51
 adversarial criminal justice system and inquisitorial criminal justice system. To
know the position and status of victim, it is essential one to study the features
of these two criminal justice systems. Both justice systems insist upon right
adjudication of the accused and protection of the innocent. But there are basic
differences as to rules of procedures in each of these systems. Each system has
its own merits and demerits while giving justice to victims of crime.

4.2 Adversarial Criminal Justice System

The system followed in India for dispensation of criminal justice is the
adversarial system of common law inherited from the British Colonial Rulers.
The accused is presumed to be innocent and the burden is on the prosecution
to prove beyond all reasonable doubt that he is guilty. The accused also enjoys
the right to silence and cannot be compelled to reply. This right is guaranteed
by Constitution of India in the form of fundamental right and also a universally
recognised right of the accused under Art. 14 of the International Convention
on Civil and Political rights.
In the adversarial system truth is supposed to emerge from the
respective versions of facts presented by the prosecution and the defence before
a neutral judge. The judge acts like an umpire to see whether the prosecution
has been able to prove the case beyond reasonable doubt. The trial is oral,
continuous and confrontational. At the heart of the trial lies the principle of
orality, which provides that evidence should generally be received through the
live, oral testimony of witnesses in court.23
In the adversarial system, the parties use cross-examination of witnesses
to undermine the opposing case and to discover information and other side has
not brought out. Hence, we can say that, parties in the adversarial system enjoy
a high degree of freedom of proof, which largely extends to the manner in
which witnesses are cross-examined. As the adversarial system does not
impose a positive duty on the judge to discover truth he plays a passive role.
The judge neither takes part in investigation nor gives any instructions to
prosecution.
As the researcher already discussed each system has its own merits and
23
Jonathan Doak, Victims Rights, Human Rights and Criminal Justice, Hart Publishing, (2008), p.34.

52
demerits, the adversarial system insists upon strict adherence of proceduaral
law which results into less room for the state to be biased against the accused.
It provides ample opportunity to uncover the truth in a laboratory of courtroom.
This model allows both parties to fully air their grievances and reach a final
solution by a disinterested and impartial judge. The main advantage of this
system is that there is not a direct involvement of the judge in the investigation
otherwise it will lead to his predisposed to a formulation of the critical
propositions. As the adversarial system does not impose a positive duty on the
judge to discover truth he plays a passive role. Along with this the individual’s
right to privacy is best preserved under it.

The main disadvantage of this system is that, the system is heavily loaded
in favour of the accused and is insensitive to the victim’s plight and rights.
Another thing is that in most of legal cases in this system do not go to trial; this
can lead to great injustice when accused has an unskilled or overworked
attorney. It fails to accurately resolve complex technical issue such as science,
technology or tax or accounting regulations. Too much insistence on procedure
may lead to unnecessary delay and that is the reason justice delayed results into
justice denied. When we discuss about the role of victim then we found that,
victim act as a mere witness as he don’t have any place under the entire
procedure of criminal justice system.
In the adversarial criminal justice system owing to the conceptualization
of crime as an offence against the state, the criminal justice system is
traditionally viewed as a system to facilitate a conflict between the state and
the accused.3 The victim is thereby inherently excluded.
4.3 Inquisitorial Criminal Justice System
The inquisitorial model basically relates to Romano Germanic System of Law,
which is also known as civil law system or continental law system. It aims to
attain justice with the composite effort of the prosecutor, the police, the defense
lawyer and the court. The court can play active role in procuring evidence, in
the investigation of the case and the examination of the witness.4 In this system
power to investigate rests primarily with the judicial police officers
(Police/Judiciary). They investigate and draw the documents on the basis of
their investigation. The judicial police officer has to notify in writing

53
Of every offence which he has taken notice of and submit the dossier prepared
after investigation to the concerned prosecutor. If the prosecutor finds that no
case is made out he can close the case. If however he feels that further
investigation is called for, he can instruct the judicial police to undertake
further investigation. The judicial police are required to gather evidence for and
against the accused in a neutral and objective manner as it is their duty to assist
the investigation and prosecution in discovering truth. The main feature of this
system is that, the exclusionary rules of evidence hardly exist and at the same
time hearsay evidence (rules) is unknown. The main feature of this system is
that the accused is presumed to be innocent and it is the responsibility of the
judge to discover the truth. The statements of witnesses recorded during
investigation are admissible and form the basis for the prosecution case during
final trial.
The important thing is that before the trial, the judge, the accused and
the victim are entitled to participate in the hearing. However the role of the
parties is restricted to suggesting the questions that may be put to the witnesses.
It is the judge who puts the questions to the witnesses and there is no cross-
examination as such.
The evidence regarding character and antecedents of the accused such
as previous convictions or conduct are relevant for proving the guilt or
innocence of accused. When we discuss about the main advantage of this
system then we can not ignore one thing that to prove the case, the standard of
proof required is the inner satisfaction or conviction of the judge and not proof
beyond reasonable doubt as in the adversarial system. Victim plays an
important role at every stage of the case.
The disadvantage of inquisitorial system is that there is lack of chances
of fair trial and another thing is that participation of the court in the
investigation of the case may lead to biased attitude while deciding the case.
Right to privacy of the accused is denied and the accused is exposed to express
everything which he need not express keeping in view of merit of case. The
inquisitorial system followed specially in civil law countries like France,
Germany, New Zealand, Italy and Austria and the countries like United
Kingdom, United State of America, India and other common law countries
followed the adversarial criminal justice system. In India there is
54
contrary views about the model, the various High Courts of India expressed
their views about the present criminal justice system. The High Courts of
Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana have said that the
present system is satisfactory. The High Courts of Jharkhand and Uttaranchal
have opined that the Adversarial System has failed. The High Courts of
Bombay, Chhattisgarh, Delhi, Himachal Pradesh, Kolkata, Madras, Madhya
Pradesh and Orissa have expressed that the present system is not satisfactory.
Some of them say that there is scope for improving the Adversarial System by
adopting some of the useful features of the Inquisitorial System.
The majority of High Courts give stress on to make some changes in the
existing criminal justice system. The former President of India, Dr. R.
Venkataraman also made observation about present system:
“The Adversarial System is the opposite of our ancient ethos. In the
panchayat justice, they were seeking the truth, while inadversarial procedure,
the Judge does not seek the truth, but only decides whether the charge has been
proved by the prosecution. The Judge is not concerned with the truth; he is only
concerned with the proof. Those who know that the acquitted accused was in
fact the offender, lose faith in the system”.
The judge should play active role to find out the truth, he concerns only about
the proof as the evidences which lead before him on that basis he decides the
case. The judge doesn’t have any role in the matter of investigation though he
acted neutrally to decide the case. The Supreme Court has criticized the passive
role played by the judges and emphasized the importance of finding truth in
several cases. It is the duty of a court not only to do justice but also to ensure
that justice is being done.
The researcher in nutshell tries to discuss the features of adversarial and
inquisitorial criminal justice system. In India there is voice on the part of jurist,
law Comission and even some of the High Courts to include some of the
principles of inquisitorial model. To study these features are essential one as
the researcher intends to explore and analyze the role of the victim during
criminal proceedings by way of comparing these two systems. To study the
status and position of victim under criminal proceeding it is essential to analyse
the interaction of the victims with the constituent

55
elements of the criminal justice system i.e. the police, lawyers and courts and
the role played by him at each stage of the criminal process. Ultimately the
researcher intends to suggest remedial measures to enhance the role of victims
during criminal proceedings and sensitize the criminal justice system to the
needs and expectations of the victims.
Victims of crime are important players in criminal justice administration
both as complainant/informant and as witness for the police/prosecution.
Despite the system being heavily dependent on the victim, criminal justice has
been concerned with the offender and his interests almost subordinating or
disregarding the interests of victim. In the civil law systems generally, the
victims enjoyed a better status in administration of criminal justice. Towards
the last quarter of the twentieth century, the common law world realized the
adverse consequences arising from this inequitable situation and enacted laws
giving rights of participation and compensation to the victims.
The criminal justice system in India is excessively loaded in favour of the
accused. The main principle on which the system of legal jurisprudence is
based is to let ninety nine persons get away free than to have even one innocent
man punished. This tenet, while preventing injustice to one innocent, denies
justice to ninety nine victims of crime.
The victims experiences with the professionals operating the system,
police, prosecution and court are not good that results into the formation of
definite attitudes on the part of the victim towards all of them. If victims come
to regard their treatment as too stressful, demeaning, unfair, distorting of
reality, too remote or too little concerned with their own rights, feelings and
interests or if decisions are made which are felt to be unsatisfactory, it is
possible that their faiths hold be reduced and ultimately lead to disenchantment,
disinterest and future non- cooperation by the victim.

4. 4 The Victim and the Police

The victims first contact with the criminal justice system is with the police.
When a person who has been the victim of a cognizable offence gives
information to the police regarding the same, the police is required to reduce
the information into writing and read it over to the informant. The

56
informant is required to sign it and get a copy of the FIR. If the police refuse
to record the information, the victim – informant is allowed to send it in writing
and by post to the Superintendent of Police concerned. However, the provision
mandates that the same needs to be done by post. This creates a problem
because of the time that this process takes. Assuming that both the postal
department and the Superintendent of Police are efficient, a delay of forty-eight
hours can reasonably occur. This gives ample time to the accused to tamper
with the evidence, and the first information report under Section154 of the
CrPC would then become fruitless. If the police refuse to investigate the case
for whatever reason, the police officer is required to notify the informant of
that fact.7 Alternatively, victims are enabled by Section 190 of the CrPC to
avoid going to the Police Station for redress and directly approach the
Magistrate with his complaint. This is termed as a ‘private complaint’ and the
Magistrate is empowered to order investigation, under his or her supervision.
This is a formal process and would require the victim to engage a lawyer
in order to satisfy the formal requirements stipulated by the law.
InthecontextoffilingthefirstinformationreporttheIndianlawapearstoput the onus
completely on the victim. If the case is a non-cognizable one, the police are
required to refer the informant to the Magistrate. Hence; there arises a scope
for misuse by the police, which have been empirically recorded in India. The
Malimath Committee Report records the fact that informants are treated
indifferently by the police and sometimes threatened when they go to them with
their grievances. The facts are distorted in order to make cognizable cases non-
cognizable.

Here the researcher likes to give reference of French criminal justice

system that followed the inqusitorial model of criminal justice system. Under
the French criminal law if the police do not have jurisdiction to investigate the
offence reported, they are required to take the statement of the victim and pass
the statement to the competent authorities. Incorporating this approach into the
Indian criminal law would be beneficial for two reasons. First, the police will
become the single point for the victim/informant to approach, which will
address the problems that the present is said to have.

57
Second, the time of a Magistrate may be better utilized, since instead of
personally recording the statement of the victim/informant, the Magistrate will
have to peruse the recorded statement and take a decision whether the case
ought to be investigated or not.
Another alternative, which is suggested by the Malimath Committee
Report, is that the distinction between cognizable and non- cognizable offences
in relation to the power of the police to investigate offences should be removed,
and it should be made obligatory on the police to entertain complaints regarding
commission of all offences and to investigate them.9 I think this is not desirable
as the rationale in making this distinction is to keep the police out in certain
situations. For instance, all offences against the institution of marriage are non-
cognizable offences. The legislature seems to have intended that the Magistrate
apply his or her mind before permitting the police to investigate such a
complaint. Removing the distinction would nullify this objective. Hence, the
French system seems to be more practical and desirable.
The researcher discusses the problem of victim from the procedural
point of sense when they interact with police, but in generally also the victims
face several problems when they approach to police station to register the case.
Generally, the victims are unwilling to report the cases to police. They are not
happy about the attitude of police men. The most common problem suffered
by many of the victims while reporting an offence is the absence of receptive
and sympathetic attitude from police towards the victims.10

Sometime, in addition to the unhelpful attitude, the harassment of victim of

crime by the police is not an uncommon feature. In reality, the victims need
cooperation and moral support from the police and it is also not possible for
police to trace the crime without the help of victims. But in reality, the police
do not necessarily value the victim as an important part of criminal justice
system and they do not necessarily see their role as offering emotional support
to victims. When we discuss the relation between police and victim and how
the victims face several problems while interacting with police in India we
found that this problem is not restricted to India but worldwide the victims of
crime, more or less face the Similar problems.

58
In foreign countries problems of crime victims vis-à-vis the police have received more
attention than India. The Declaration of Basic Principles of Justice and Abuse of
Power11 suggested several measures to improve police response towards crime victims.
The Declaration calls upon the member States to treat the crime victims with
compassion and respect for their dignity. According to the Declaration, victims have
certain rights which must be protected to ensure that they get a fair deal in the criminal
justice process. The administrative process must respond sensitively to the needs of
victims by informing them about the progress of investigation in their cases and by
minimizing their inconveniences, providing protection and security to their families
against any intimidation and retaliation. The Declaration further recommends that the
police along with other relevant agencies of the criminal justice system should receive
training to get sensitized to the needs of the victims.

The International Association of Chiefs of Police (IACP),12 in its policy declaration,

expects police leaders to ensure that victims are treated as “privileged clients” and also
urges police force to “establish procedures and train personnel” to implement the
“incontrovertible rights of all crime victims”. They are as under:

1. To be free from intimidation;

2. To be informed about the availability of financial assistance and social
services and how to procure them;
3. To be provided a secure area during interviews and court proceedings;
4. To get back stolen or other personal property when no longer needed as
evidence;
5. To speedy disposition of the case, and to be periodically informed of case
status and final disposition, and also about the release of perpetrator from
custody;
6. To be interviewed by female official in case of rape and other sexual
offences, where ever personnel and resource capabilities allow.

The Council of Europe for Improvement of Victim Protection

has been equally emphatic in highlighting the plight and problems of victims of
crime. In 1981, the Council setup a Select Committee of Experts on the Victim

59
and Criminal and Social Policy. Apart from programs of victim-assistance, some
guidelines relating to police response to the victims of crime framed by the
Committee were approved by the Council of Europe in 1985.Some of these areas
under: The victim should be treated in the police station in a sensitive manner, so
that he is not subjected to any additional emotional damage.
i) The victim should be apprised of the possibilities of receiving
financial, medical and psychological help from different sources.
ii) He should also be advised about the restitutional claims and
compensation from the state.
iii) The right of victim should be protected and he should not be
subjected to secondary victimization i.e. additional damage during
the process of criminal justice.
iv) Suitable measures to protect the victim and his family against any
possible threat from the offender should be taken.
v) Informal procedures aiming at settlement of disputes between
victim and offender, without resorting to criminal justice procedure,
should be encouraged.

The Government in some countries has already enacted legislation to

protect the rights of victims of crime. For instance, in the USA,44States and
the federal Government have legislated guidelines as to how police and other
officials in the criminal justice system should treat victims of crime. These acts
lay down that the police are responsible for providing information to victims
about the availability of emergency, medical, compensation and other social
services, returning property to victims promptly, and informing the victims
about the release of defendants.
Police officers are trained to deal with the varying needs of the victims
of sexual assault, domestic violence and child abuse sensitivity.

In Canada, the Royal Canadian Mounted Police and the Metropolitan Police
forces in Montreal and Toronto require the police personal to respond to the
cases of domestic violence and sexual assault in a sensitive manner.
In India to deal with the cases of juvenile the special juvenile police unit14 is

60
set up as the juvenile needs a special treatment but unfortunately due to lack of
implementation of the provision the purpose is not going to be served. To deal
with the cases of sexual offences, the special machinery is essential one. At the
stage of filling of the case the police have to give every kind of support
including emotional support to victims of sexual offence.
The process of criminal justice is set into motion when the victim reports
the incident to the police. The victim then becomes an important source of
information for the police to arrest the culprit and to conduct investigation. The
need to establish a healthy police-victim relationship is essential not only to
reduce the reluctance of the victims to report crime to the police but also to
improve the quality of investigation.
On the other hand it is equally true that, the police in India is
overburdened, often operates in high risk situations, lack of adequate
remuneration and appropriate training. Proposals and reports on police reform
have not borne fruitful until now. The proposals to strengthen the material and
human resources in the police, to have a more sustained training policy must
therefore be welcome as a real improvement for the police system in India.
Equally, the creation of an investigation and a law and order wing could lead
to more efficiency within the criminal justice system, through the higher
specialization and qualification of investigation officers.
4.5 The Process of Investigation and the Victim
The process of investigation is the part of proceeding to punish the
wrongdoer. To collect the evidence, to find out the truth, the investigation is
essential one to put all the matter before the court. In some cases the special
investigation officer is appointed by the competent court to investigate the
matter.
When we discuss the role of victim in the process of investigation, the
Code does not seem to give any role to the victim during investigation. The
statement of the victim, if he or she also happens to be the informant, is
recorded in the form of first information report. If the victim is not the
informant, then the victim will be independently questioned by the police.
The term ‘investigation’15 is defined to include all the proceedings which
are essential for collection of the evidence, conducted by a police officer or by
any person authorized to do so by a magistrate. As soon as the
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investigation is completed, the investigation officer has to forward a report in
the form prescribed in the Code to the magistrate. Hence, Investigation begins
with the filing of the first information report and ends with the submission of
final report which is also known as ‘charge sheet’.
If we carefully observe the definition of ‘investigation’ it is clear that
there is no reason why the police cannot involve the victim in the process of
investigation. In fact, assistance of the victim might help the police to proceed
the investigation in a proper way or direction. However, practice reveals that
once the statement of the victim is recorded, the case is completely within the
control of the police and they do not involve the victim in the investigation
process at all. The Malimath Committee report suggests that the victim should
play an active part in during investigation. The objective of criminal justice
system, according to the committee is to find out the truth. Hence the victims
involvement becomes very important. The victim can assist the investigation
in finding the offender and in collecting the evidence to prove the commission
of the offence by the criminal. The committee also suggests that the victim
should be allowed to offer suggestions with respect to the investigation and
should be given the power to move the court for appropriate directions to
ensure proper investigation of the case. This is similar to French criminal
justice system, wherein, during the pre-trial inquiry the victim enjoys the same
rights of participation as the suspect. He or she may request the judge
d’instruction to carry out particular investigation and through his or her lawyer,
access to the case dossier is provided.
Section 157 of CrPC deals with the procedure for investigation. It states
that if it appears to the police officer that there is no sufficient ground for
entering an investigation, he or she shall not investigate the case. However, if
such a decision is taken, the officer is required to notify the informant the fact
the case will not be investigated. This seems to have been provided to allow
the informant to exercise the other options available in the CrPC to set the
criminal justice system into motion.
The next important section in the CrPC isSection167,whichstates that a
person can be kept in custody for a period of ninety days, where the

62
Investigation relates to an offence punishable with death, imprisonment for life
or ten years; and sixty days in all other cases. If the police do not complete their
investigation within the said period, the accused is entitled to be released on
bail, subject to satisfying the conditions prescribed. This is another place where
the victim can intervene and demand an explanation from the police as to why
the investigation has not been completed on time. It would be desirable to
incorporate a provision mandating the police keep the victim informed of the
progress of the investigation. If the victim can contribute in expediting the
process, his or her assistance should be taken.
Section 173 of the CrPC is a place where the informant is expressly
mentioned. Subsection 2 (ii) states that, at the time of filing the charge sheet
with the magistrate, the police officer shall also communicate the action taken
by him to the person who first gave the information relating to the commission
of the offence. Hence, the CrPC clearly involves the informant in the
investigative process in two situations – the first under Section 170 under
which a preliminary report is submitted to the magistrate by the police, if they
believe that an offence has been committed and the second under Section 173
(2) (ii).
Once the charge sheet is filed, the magistrate may take cognizance of the
offence. In the event of the magistrate deciding not to take cognizance of the
matter, the CrPC is silent as to whether, as in Section 173 (2) (ii), the informant
should be notified or whether the informant has the right to be heard. Taking
note of this situation, the Supreme Court clear this ambiguity by way of their
decision but the researcher will discuss the case law in next chapter.
The investigation agencies have been given wide and unbridled powers in
investigation but the experience shows that a criminal case mostly fail due to
delay and latches in investigation. In number of cases accused persons were
acquitted due to faulty investigation. Hon'ble Courts in various rulings has
observed about such lapses in investigation which was proved to be fatal in
criminal trial. If the prosecution fails due to faulty investigation, the crime
victim never gets justice. If the police have been given such a wide and
unfettered discretion in investigation, why not there be a clear provision fixing
liability on state to compensate the crime victim if the prosecution

63
Fails due to latches in investigation. Moreover, liberty should be given to state
to reimburse itself by realizing the amount of compensation from the erring
Investigation Officer.
Another problem in investigation is lack of forensic laboratories and
modern equipment which create a major hurdle to trace the offender. The report
does not come in time and that creates delay in deciding the matter. The
investigating officers are not trained to tackle the offences committed by using
computer and other electronic devices. The things which are seized during
investigation are not kept properly and handled properly. This is a time to give
proper training to police officers and increase forensic laboratories and modern
equipment to trace such offences to protect the rights of victim.
In this modern era, the nature of offence is going to be changed, so the
investigation authorities should upgrade the knowledge and try to become more
techno savy to trace the offender and give justice to victims of crime and at the
same time victims should be more careful to protect ourselves.
Thus the victim is vital to the police throughout the recording, detection
and investigation of the case to the police. Yet the police do not seen to be
concerned to fulfill the victim’s need to be informed, occasionally consulted
and treated with dignity and respect. The victim does seem to be seen as a very
important participant in the criminal justice system. We have two contradictory
facts on the role of the victim
i.e. his practical importance and, in contrast, in apparent ignorance of and an
ignoring of his attitudes and his experience by those involved in recording and
investigating offences … the police.16

4.6 J. Malimath Committee Report and Reforms in Criminal Justice

System

The Committee on Reforms of the Criminal Justice System was

constituted by the government of India, Ministry of Home Affairs by its order
dated 24 November 2000, to consider measures for revamping the Criminal
Justice System. The committee appointed under the chairmanship of Dr. Justice
V.S. Malimath, former Chief Justice of Karnataka and Kerala High

64
Courts, Chairman, Central Administrative Tribunal and Member of the Human
Rights Commission and other members.
The terms of reference for the Committee are:
i. To examine the fundamental principles of criminal jurisprudence, including
the constitutional provisions relating to criminal jurisprudence and see if any
modifications or amendments are required thereto;
ii. To examine in the light of findings on fundamental principles and aspects
of criminal jurisprudence as to whether there isa need to re-write the Code of
Criminal Procedure, the Indian Penal Code and the Indian Evidence Act to
bring them in tune with the demand of the times and in harmony with the
aspirations of the people of India;
iii. To make specific recommendations on simplifying judicial procedures and
practices and making the delivery of justice to the common man closer, faster,
uncomplicated and inexpensive;
iv. To suggest ways and means of developing such synergy among the
judiciary, the Prosecution and the Police as restores the confidence of the
common man in the Criminal Justice System by protecting the innocent and
the victim and by punishing unsparingly the guilty and the criminal;
v. To suggest sound system of managing, on professional lines, the pendency
of cases at investigation and trial stages and making the Police, the Prosecution
and the Judiciary accountable for delays in their respective domains;
vi. To examine the feasibility of introducing the concept of “Federal Crime”
which can be put on List I in the Seventh Schedule to the Constitution.

The committee submitted its report to the Union Home Ministry on April 2003
for further consideration and action. It is the first time in 150 years of Indian
legal history that such wide-ranging reforms are being proposed. The
committee has suggested reforms in the existing criminal justice system as they
consider that “the criminal justice system is virtually collapsing under its own
weight as it is slow, inefficient and ineffective” and that “people are losing
confidence in the system”. The recommendations however, have far
reachingconsequencesfortheruleoflawinIndia.Theresearcherintendsto

65
Discuss only those recommendations which are related to victims of crime and the
amendment took place on the basis of these recommendations.
The Malimath Committee made following recommendations to improve the status of
victim under the Indian criminal justice system.

1. The victim, and if he is dead, his or her legal representative, shall have the right to be
impleaded as a party in every criminal proceeding where the offence is punishable with
seven years imprisonment or more.
2. The victim maybe made a party to assist the court in discovering truth. He may be
permitted to put questions or suggest questions to be put by the court to the witnesses
produced by the parties. He can also point out the availability of other evidence that would
assist the court in discovering truth. On the victim furnishing such information the court
may cause production of such evidence as it considers necessary to discover truth.
3. Active participation of the victim during investigation would be helpful in discovering
truth. He can assist investigation in finding out the real offender and in collecting evidence
to prove the commission of the offence by the assailant. He can also offer suggestions for
proper investigation of the case. When the investigation proceeds on wrong lines the
victim can move the court for appropriate directions to ensure proper investigation of the
case.
4. The victim should have the right to be represented by a lawyer. If the victim is an
indigent person and is not in a position to engage a lawyer, the State should provide him a
lawyer. When the State has an obligation to provide a lawyer to the accused, there is no
good reason why the victim should not be provided a lawyer at the cost of the State.
5. The victim or his representative 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 to the victim.
6. There is need for an officer equivalent to Probation Officer to take care of victim
interests in investigation and trial. He may be called Victim Support Service Co-Ordinator
who may work closely with the police and Courts to monitor, co-ordinate and ensure
delivery of justice during the pendency of the case.

66
7. Victims of rape and domestic violence etc. require trauma counseling, psychiatric and
rehabilitative services apart from legal aid.
8. Victim should get the compensation apart from the accused is convicted, acquitted or
absconded and it is the responsibility of State to provide compensation to victims of crime
or relatives of crime and State should make such arrangement by providing funds to
compensate the victims of crime.

In nutshell we can say that the Justice Malimath Committee has made some progressive
and welcome recommendations to protect the rights of victim. The rights include, right to
participation, the right to produce evidence, to ask questions to the witnesses, to know the
status of investigations and to move the court for further investigation, to advance
arguments, to participate in negotiations, and the right to appeal under certain
circumstances. Equally, the proposal for a Victim Compensation Law enshrining the
State’s obligation to compensate victims even when the offender is not apprehended is a
step towards a real protection of victims of crime and human rights violations.
On the recommendations of J.Malimath Committee the amendment took place in
2008, the researcher feels that, it is important one to analyse those provisions which are
inserted with an intention to protect the rights of victim under Indian criminal justice
system.
4.7 The Code of Criminal Procedure (Amendment) Act, 2008 and Rights of Victim
The Code of Criminal Procedure (Amendment) Act, 2008 brought a radical and
impactful change in the Indian Criminal Justice System by introducing and redefining the
rights of the victims. The victims were conferred more rights and the major changes that
took place have been discussed below.
The most important thing is that the Code first time defines the term victim as the
term defined by inserting a new Section 2(wa). ‘Victim’ means a person who has suffered
any loss or injury caused by a reason of the act or omission for which the accused has been
charged and the expression ‘victim’ includes his or her guardian or legal heir.
The definition incorporated under this section widens the expression

67
‘victim’. The new definition includes a guardian or legal heir of the victim and thus confers
them with rights equivalent to a victim.

Appointment of an Advocate–A clause has been added to Section301

(2) whereby a victim has right to engage an advocate of his choice to assist the public
prosecutor and who act as per the directions of Public Prosecutoror Assistant Public
Prosecutor, and may, with the permission of the court, submit written arguments after the
evidence is closed in the case. In another way also a victim has right to appoint a lawyer
of his choice to assist the Special Public Prosecutor43 and his role is also same as in earlier
case.

Protection to Rape Victims– A proviso has been inserted in Clause (a) of Section 26,
which provides that any offence under Section 376 and sections376 A to 376 D of the
Indian Penal Code shall be tried as far as practicable by a Court presided by a woman. In
Section 157, a second proviso has been inserted in relation to evidence of rape, whereby
recording of statement of the victim shall be conducted at the residence of the victim or in
place of her choice and as far as practicable by the woman police officer in the presence
of her parent or guardian or near relative or social worker of the locality. The said provision
thus makes an exception for the rape victims during investigation and confers them with
more rights. A new sub-section (1A) is inserted in Section173 with a view to provide that
the investigation of the offence of rape of child shall be completed within three months
from the date on which the information was recorded by the officer- in-charge of the police
station. Also, a new proviso has been added in Section 327(2), which provides that a
woman Judge or Magistrate should conduct the in-camera trial. The Law Commission of
India also made the above recommendations.

Protection to Witnesses – The protection is conferred to witnesses of the case and the
person who tried to commit any threat to the witnesses such persons are liable to be
punished and a new Section inserted to make provision for a witness or any other person
on his behalf to file complaints in relation to an offence under Section195 A of the Indian
Penal Code.

Right to Appeal–A new proviso has been inserted with Section372

68
whereby the victim shall have the right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation. Having regard tothe history of legislation
and the case law it is strongly felt that the right of victim limited to three
categories is intended to be absolute and that it is in consonance with the aim
of the legislature to protect the victims.
Victim Compensation Scheme – A new Section 375 A was incorporated in
order to provide for the State Government to prepare in co-ordination with the
Central Government, a scheme called “victim compensation scheme” for the
purpose of compensation to the victim or his dependents who have suffered
loss or injury as a result of the crime. With the introduction of this scheme the
victim has been assured of a compensation amount.
Earlier provision i.e. section 357 of CrPC was not able to serve its purpose
to compensate the victims or relatives of victims. The scheme is based on
Criminal Injuries Act, 1988 of Britain, whereby a Compensation Scheme was
incorporated to compensate the victims. Also, the Law Commission of India in
its 152nd Report and in the 154th Report suggested this scheme. Thus, right to
compensation becomes a reality for the victim and this is bound to bring a
radical change in the access to justice.

4. 8 Lacunae Existing in Our Criminal Justice System to Protect the Rights

of Victim
There are a number of issues, which have to be addressed and included
in our Criminal Justice System to reinforce and strengthen the rights of victims.
The Law Commission of India in its 154threport on Code of Criminal
Procedure, 1973 in the year 1996 and the Malimath Committee on Reforms of
Criminal Justice System, 2003 had also highlighted some valuable points
which are absent in our Criminal Justice System. The major lacunae have been
discussed below.
Right to Participate in the Proceedings
In the existing criminal justice system, a crime victim does not have
any significant role to play in the criminal process. The investigation process
is exclusively a police function and the victim has a role only if the police
consider it necessary. This is the time where victims need assistance
69
complainant/informant does not have any say if the Magistrate, on receipt of a
final investigation report (charge-sheet) from Investigating Officer
recommending dropping of the case, is inclined not to initiate action against
suspect/accused. The Code, in no way, requires the Magistrate, to hear the
victim / complainant/informant. However the Supreme Court, plausibly
realizing the statutory lapse mandated that a Magistrate should not drop
proceedings without giving notice to the parties adversely affected. It is just
and necessary that, the Apex Court asserts, these parties should be heard before
making an order of dismissal of the complainant. The existing law only
envisages the prosecutor appointed by the State to be the proper authority to
plead on behalf the victim. However, the Code does not completely prohibit a
victim from participating in the prosecution. A counsel engaged by the victim
may be given a limited role in the conduct of prosecution, that too only with
the permission of the Court. And a crime victim may be permitted to submit,
with the permission of the court, written arguments after the closure of
evidence in the trial. Thus, the Code restricts direct participation of the victims
lawyer in the trial.

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 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. Nor is
there any statutory provision to inform the victim of the progress of the case
during trial by the prosecution. It is essential one that the police and prosecution
may follow such procedure to inform the victim of the progress of the case
during investigation and trial respectively.
Rehabilitation
The law fails to address the needs of the victim to be treated with dignity,
to sustained protection from intimidation, to readily access the justice
mechanisms, to legal aid and to rehabilitation. There is also no statutory
scheme recognizing the rehabilitative needs of the victim of rape. The
Malimath Committee on Reforms of Criminal Justice System had
recommended that victims of rape and domestic violence, require trauma
70
counseling, psychiatric and rehabilitative services apart from legal aid. The
object is to avoid secondary victimization and provide hope in the justice
system. At the police station level, with or without the assistance of voluntary
organizations, victim support services need to be organized systematically if
the system were to redeem its credibility in society. The law fails to address
the needs of the victim to be treated with dignity, to sustained protection from
intimidation, to readily access the justice mechanisms, to legal aid and to
rehabilitation. There is also no statutory scheme recognizing the rehabilitative
needs of the victims of rape.
Legal Aid to Victim
There is no provision in the CrPC for providing legal aid to the victim
of a crime. Legal aid is available only to the accused. The Legal Services
Authorities Act, 1987 entitles every person “who has to file or defend a case”
to legal services. A victim of crime has a right to legal assistance at every stage
of the case subject to the fulfillment of the means test and the ‘prima facie case’
criteria. The right of representation by lawyer is a constitutional right of every
accused and there is no reason why it should not be available to the victimas
well. The Malimath Committee had also recommended that the victim has a
right to be represented by an advocate shall be provided at the expenses of the
State if the victim is not in a position to afford a lawyer.
Witness and Victim Protection
The Criminal Procedure Code recognizes some rights relating to
witness protection but is silent on the point of victim protection. Many
countries like the South Africa, France and USA has setup provisions for the
victim protection. The Rome Statute also mandates the Court to take
appropriate measures for the safety of the victim.
Bail and Withdrawal of Prosecution
In the granting and cancellation of bail, victims have substantial
interests though not fully recognized by the law. Criminal Procedure Code
may allow a victim to move the court for cancellation of bail, but the action
thereon depends very much on the stand taken by the prosecution. Similarly,
prosecution can seek withdrawal at any time during trial without consulting the
victim. Ofcourse, the victim may proceed to prosecute the case as a private
complainant; but he seems to have no right to challenge the
71
 prosecution decision at the trial stage itself. The views of the victim are hardly
heard while releasing an accused on bail, even though the grant of bail will be
materially prejudicial to his interests, claims and security.

Victim Impact Statement

The Code of Criminal Procedure confers a right of pre-sentence

hearing to accused to express his opinion about punishment but the Code is
silent regarding the right of victim to narrate about the loss which he suffered
due the act of accused. The victims also have some say or voice realting to the
quantum of punishment declared by competent court.
The researcher tries to discuss the various hurdles in the path to give
justice to victims of crime and also analyse the lacunae existing in the criminal
justice system especially after the Code of Criminal Procedure (Amendment)
Act, 2008. The amendment brought the number of changes to protect the rights
of victim but still it is essential one to have more scope for victim to protect
their rights and have a proper place and voice under the existing criminal justice
system.

4.8 VICTIM RIGHTS VIS-À-VIS HUMAN RIGHTS

At first glance one would think there is much common ground between
the victim rights and human rights. Victimology has its main focus and concern
on the social, psychological, financial and physical well being of victims,
including victims of criminal acts and abuses of power. When we try to trace
the history of the international human rights legal system we found that, it
started by adopting general and wide- ranging human rights Treaties62 as found
in the International Bill of Rights 1966.63 Following this, the international
community proceeded to develop more specific international instruments
principally devoted to certain categories of groups where there was a consensus
that such a group should be entitled to special human rights protection. Such
groups included refugees64, people who suffer from racial discrimination65 and
discrimination based on gender66, children67, Indigenous peoples68, people with
disabilities69, and people subject to torture or other inhuman treatment
or punishment70. Just like these other disadvantaged groups, victims also have

72
their own specific international instrument devoted to advancing their rights
and interests. This is of course what victimologists refer to as the victims
'magna carta', the Declaration on Basic Principles of Justice of Victims of
Crime and Abuse of Power.
The Declaration is a specific instrument that solely concerns state
obligations towards a broad range of victims - victims of crime and abuse of
power. Another indication that victims rights are human rights is that there are
many examples of victims and their lawyers using the general provisions of
some prominent human rights Treaties to seek redress and vindicate their
rights. These provisions do not mention the word victim directly, and consist
of a number of commonly accepted human rights protections, such as the right
to life, the right not to be subject to torture or inhuman or degrading treatment,
the right to security of the person, the right to privacy and equality before the
law.
In the USA and Australia, State and Territory governments that have
the primary responsibility criminal justice have taken many steps to ensure that
the international standards articulated in instruments such as the Declaration
have become a reality. In the USA about 33 State governments have passed
Constitutional amendments to advance the protection of victims' rights72, and
all State governments have enacted legislation in one form or another that
covers the treatment of victims during the criminal justice process.
In Australia, the South Australian government in 1985 instituted an
administrative 'Declaration of Victims' Rights' that provided for certain rights
of crime victims in relation to criminal justice and other processes. In India,
some rights of victim are set up as fundamental rights and directive principles
in constitution of India.
It is certainly true that traditionally human rights proponents have
tended to focus particularly on the duty of states to protect the rights ofpeople
living under their control by preventing human rights violations committed by
the government itself or its agents. This is often referred to as the 'vertical'
operation of human rights. There is some evidence, however, that human rights
advocates and scholars are taking much more notice of violations committed
by individuals against other individuals, and the

73
resultant responsibility of states to prevent such violations, from occurring.
This is often referred to in the literature as the 'horizontal' application of human
rights. One obvious example is that many feminist scholars have insisted that
'Crimes such as domestic violence and child abuse, even though committed by
individuals against other individuals, should be part of international human
rights considerations, primarily because the state has not done enough to
prevent such victimisation. Even though the state might have criminalised such
behaviour, the argument is that it bears some responsibility for creating the type
of male dominated society where such crimes seem to flourish. The State also
is responsible for the criminal justice system that makes it particularly difficult
for victims to report such crimes, and where they do, to then proceed with their
further involvement in the system. At a theoretical level,the argument is that
the public/private dichotomy also pervades human rights discourse, and the
historical exclusion of individual wrongdoing from human rights consideration
has led to the marginalisation of the main forms of harms that women and
children face around the world. An indication that such arguments are being
taken seriously by the international community is the agreement of the UN
General Assembly to the 1993 Declaration on the elimination of violence
against women.73
In more recent times, owing to international criminal justice, more
victimologists are becoming aware of the needs of victims of government
wrongdoing, including the victims and survivors of international crimes such
as genocide and crimes against humanity. Logically there is a great deal in
common between victims of the typical domestic crimes (like assault and
burglary) and victims of international crimes, and it is thus artificial to separate
the two types of victims. Both types of victims are likely to suffer similar
psychological, social and financial losses, although, if anything, the
psychological losses for victims' of international crimes are likely to be greater
because these crimes are a result of state policies. This means that, unlike most
domestic crimes, these crimes have been directly been sanctioned and even
organised by the state, and this is likely to produce an extra detrimental
psychological effect. Then, comes the arguments against proposition that
victims rights are human rights.
The important argument is that all victims rights clash with accused
74
and convicted person's rights. But in fact, the majority of victims rights does
not clash with the rights of accused people, and so for at least these victims
rights there is not problem in terms of offending these rights. For example, Sara
Faherty74 classifies crime victims rights into three groups. The first category is
the general right to be treated with respect and sensitivity, as well as 'minor
conveniences' rights : such as comfortable courthouse waiting rooms, on-site
day care, transportation services, and fewer time delays, along with needs such
as protection from intimidation by the offender.
Her second category is informational rights and the right to be present
during proceedings, rights that she also regards as of little effect on the rights
of accused persons, although they clearly impose a greater burden on the state.
Her third category of victims rights is 'participatory' rights that she does
acknowledge are much more controversial because they may adversely affect
the rights of accused and convicted persons. Clearly under Faherty's
classifications, two out of three of her categories of victims' rights do not clash
with the rights of accused people or prisoners.
Well known victimologist Andrew Karmen classifies victims rights
more in terms of whose expense they may be. He refers to two primary
categories - those gained at the expense of accused persons, which clearly may
clash with the rights of accused persons, and those gained only at the expense
of the State. Victims rights in the latter category includes rights to obtain
information concerning criminal justice decisions and processes; to be treated
with respect, sympathy and understanding by criminal justice officials; to call
upon psychological and practical support and services in the period following
the offence; and to receive compensation from the state in cases of criminal
violence.75 Again, these rights constitute the majority of victims' rights and do
not generally clash with the rights of accused persons, and are in the main
supported by the community and criminal justice professionals.
The courts will interpret or read down the pro-victim measure in such a way
that does not infringe human rights, and the measure will be acted upon in
perhaps a much more limited or circumscribed manner. The overall
effectofthisisthatinsuchsituationvictimsrightsaresubjecttotherightsofaccused

75
persons, and there seems to be no problem with victims and accused rights
potentially clashing. Provided care is taken in introducing victims' rights, they
are able to coexist with the rights of accused persons. One thing we should
not forget that our judiciary administer our criminal justice system. In India,
we follow the Adversarial Criminal Justice System and the important feature
of this system is the ‘fair trial’, where both the parties
i.e. accused and victim get equal chance to put their submission before the
competent court. More important is that the accused enjoyed more rights even
the rights in the form of fundamental rights to prove his or her innocence.
So it is wrong to say that the victims right might infringe the rights of accused
persons. Ultimately we can say that accepting the victims' rights as human
rights has important implications for crime victims and their advocates. They
will be able to approach courts, tribunals and other administrative bodies, and
government agencies and bureaucrats, with claims for various rights found in
international instruments and national legislation and guidelines.
So, the human rights are thus victim's rights while they may have
different emphasis, they do complement each other and clearly those working
in both areas need to work together towards the goal of achieving better
outcomes for both accused persons and for victims of crime.
The extent to which human rights are respected and protected within the
context of judicial proceedings of a State is an important measure of its
society's civilisation. Another important aspect is to what extent the human
rights of the accused and victim be protected. Over emphasis on the protection
of one interest is bound to have an adverse impact on the other and therefore,
an even balance has to be struck between the two interests.
Thelawandjudiciaryareentrustedtofindthe dividing line so as to harmonise the
two interests without causing detriment to anyone. By and large the Supreme
Court, of our country has through progressive and humanistic interpretation,
enlarged the rights of the accused and victim of judicial administration with a
view to protect the interest of the innocent and sufferer and preventing abuse
and misuse of police powers.
It is one of the most important duties of the State and all its organs to

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provide justice and correct institutional and human errors affecting basic needs,
dignity and liberty of human being. Fortunately, India has a pro-active
judiciary which always takes the initiative to protect the human rights of
various victims of crime. It can well be aspired that in the times ahead, people
have right to live with dignity, as a true human being, without being victimized,
will further be strengthened.

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 Chapter V

Role of Judiciary to Protect the Rights of Victim

5.1 Introduction
In the last chapter, the researcher tries to discuss elaborately functioning of the
justice delivery system in India and highlights various hurdles in the path of achieving
justice to victims of crime. Though the Code of Criminal Procedure has number of
provisions to protect the rights of crime victims, they are inadequate to protect the
interest of victims. The researcher also tries to study and discuss the features of
Adversarial and Inquisitorial model of criminal justice system with an intention to study
the status and position of victim. After analyzing the Criminal Procedure Code, and
other substantive law, the researcher feels that the Code of Criminal Procedure
(Amendment) Act, 2008 brought the important changes to protect the rights of victims
of crime but still it is essential one to have more protection to uplift the status and
position of victims of crime in the Indian criminal justice system.

In the present chapter the researcher tries to discuss the various judicial
decisions given by the High Courts and the Supreme Court of India relating to
protection of rights of victim. The Indian judiciary plays an important role to protect
the rights of crime victims by way of its various decisions and directions. Judiciary has
the significant function of enforcing the Fundamental rights of the people granted to
them by the Constitution. Justice Untwalia has compared the Judiciary to “a watching
tower above all the big structures of the other limbs of the state” from which it keeps a
watch like a sentinel on the functions of the other limbs of the state as to whether they
are working in accordance with the law and the Constitution, the Constitution being
supreme.”24

India has a unified judicial system with the Supreme Court standing at the Apex
and the High Courts below it. The Supreme Court thus enjoys the top-most position in
the judicial hierarchy of the country. It is the supreme interpreter of the Constitution
and the guardian of the people’s Fundamental Rights. It is the ultimate court of appeal
in all civil and criminal matters and the final interpreter of the law of land, and thus
helps in maintaining a uniformity of law throughout the country.

24
India v. Sankal chand Himatlal Sheth, AIR 1977 SC2328
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Judiciary in every country has an obligation and a Constitutional role to protect Human
Rights of citizens. As per the mandate of the Constitution of India, this function is
assigned to the superior judiciary namely the Supreme Court of India and High courts.
The Supreme Court of India is perhaps one of the most active courts when it comes into
the matter of protection of Human Rights. It has great reputation of independence and
credibility. The preamble of the Constitution of India encapsulates the objectives of the
Constitution-makers to build a new Socio- Economic order where there will be Social,
Economic and Political Justice for everyone and equality of status and opportunity for
all. This basic objective of the Constitution mandates every organ of the state, the
executive, the legislature and the judiciary working harmoniously to strive to realize the
objectives concretized in the Fundamental Rights and Directive Principles of State
Policy.6. 2 Writ Jurisdiction of the Supreme Court and the High Courts

The Constitution of India confers a writ jurisdiction only to High Courts and
Supreme Court under Article 226 and 32 respectively to protect the rights of people
including fundamental rights. At the same time, these articles confer the right on the
part of people to approach directly to the High Courts and the Supreme Court for
judicial rectification, redressal of grievances and enforcement of Fundamental Rights.
In such a case the courts are empowered to issue appropriate directions, orders or writs
including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-
warranto, and Certiorari to protect the rights of people. By virtue of Article 32, the
Supreme Court of India has expanded the ambit of Judicial Review to include review
of all those state measures, which either violate the Fundamental Rights or violative of
the Basic Structure of the Constitution. There is express provision under Indian
Constitution to confer the power on the High Courts and Supreme Court to declare a
law unconstitutional if it is inconsistent with any of the provisions of Part III of the
Constitution,2 and this is nothing but the power of judicial review to test the legality of
any law on the touchstone of Indian Constitution. Hence the power of Judicial Review
exercised by the Supreme Court and High Courts is intended to keep every organ of the
state within its limits and parameters laid down by the Constitution of India. It is in
exercise of the power of Judicial Review that, the Supreme Court has developed the
strategy of Public Interest Litigation. The right to move to the Supreme Court to enforce
Fundamental Rights is itself a Fundamental Right under Article 32 of the Constitution
of India. This remedial Fundamental Right has been described

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As “the Cornerstone of the Democratic Edifice” as the protector and guarantor of the
Fundamentals Rights. It has been described as an integral part of the Basic Structure of the
Constitution. Whenever, the legislative or the executive decision result in a breach of
Fundamental Right, the jurisdiction of the Supreme Court and High Court can be invoked.
Dr. Babasaheb Ambedkar expressed his views to mention the importance of
Article 32 of Indian Constitution on the floor of parliament, “ If I was asked to name
any particular Article in this Constitution as the most important – an Article without
which this Constitution would be a nullity – I could not refer to any other Article except
this one ............................. It is the very soul of the Constitution and the very heart of
it.”3 It is true that a declaration of fundamental right is meaningless unless there is
effective machinery for the enforcement of the rights. It is remedy which makes the
right real. If there is no remedy there is no remedy at all.
The Right to Constitutional remedy under Article 32 can be suspended as
provided under Articles 32(4), 358 and 359 during the period of promulgation of
emergency. Accordingly, in case of violation of Fundamental Rights, the petitioner
under Article 32 for enforcement of such right cannot be moved during the period of
emergency. However, as soon as the order ceases to be operative, the infringement of
rights made either by the legislative enactment or by executive action can be challenged
by a citizen in a court of law and the same may have to be tried on merits, on the basis
of that the rights alleged to have been infringed were in operation even during the
pendency of the presidential proclamation of emergency. If, at the expiration of the
presidential order, the parliament passes any legislation to protect the executive action
taken during the pendency of the presidential order and afford indemnity to the
execution in that behalf, the validity and effect of such legislation may have to be
carefully scrutinized.
Under Article 226 of the Constitution of India, the High Courts have concurrent
jurisdiction with the Supreme Court in the matter granting relief in cases of violation of
the Fundamental Rights, though the High Courts exercise jurisdiction in case of any
other rights also. Hence the High Court has wider jurisdiction than the Supreme Court.
The Supreme Court observed that where the High Court dismissed a writ petition under
Article 226 after hearing the matter on merits, a subsequent petition in the Supreme
Court under Article 32 on the same facts and for the same relief filed by the same parties
will be barred by the ‘rule of resjudicata’.The binding

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Character of the judgment of the court of competent jurisdiction is in essence, a part of
the rule of law on which, the administration of justice is founded4. Thus the judgment
of the High Court under Article226 passed after hearing the parties on merits must bind
the parties till set aside in the appeal as provided by the Constitution and cannot be
permitted to be avoided by a petition under Article 32.
Article 226 contemplates that notwithstanding anything in Article 32, every
High Court shall have power, throughout the territorial limits in relation to which it
exercises jurisdiction to issue to any person or authority including the appropriate cases,
any government, within those territories, direction, orders or writs in the nature of
Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or any of them
for the enforcement of Fundamental Rights conferred by Part-III and for “any other
purpose”. Hence, the jurisdiction of a High Court is not limited to the protection of the
Fundamental Rights but also of the other legal rights as is clear from the words “any
other purpose”. The concurrent jurisdiction conferred on High Courts under Article 226
does not imply that a person who alleges the violation of Fundamental Rights must first
approach the High Court, and he can approach the SupremeCourtdirectly5. But in P.N.
Kumar vs. Municipal Corporation of Delhi6, the Supreme Court expressed the view that
a citizen should first go to the High Court and if not satisfied, he should approach the
Supreme Court. Innumerable instances of Human Rights violation were brought before
the Supreme Court as well as the High Courts. Supreme Court as the Apex Court
devised new tools and innovative methods to give effective redressal.
5.2 Emergence of Concept of Public Interest Litigation
The traditional rule is that the right to move the court is only available to those
whose rights are violated including fundamental rights. A person who is not related to
the subject matter of the case has no locus standi to invoke the jurisdiction of the court.
But during the period of 1980s this rule of doctrine of locus standi liberalized by the
competent court and allows any public-spirited person to file the writ petition for the
enforcement of fundamental rights and other legal rights of any other person or group
of persons who are unable to approach the Court for relief due to poverty, illiteracy or
unawareness. The major credit goes to great Justice Krishna Iyer and Justice Bhagwati
who takes the initiative to liberalize this doctrine of locus standi and allows the petition
in the form of public interest litigation. The widening of the traditional rule of locus
standi and the invention of PIL by the Court was a significant

81
phase in the enforcement of human rights. Lexically the expression PIL means a legal
action initiated in a Court of law for enforcement of public interest or general interest
or in which the public or a class of the community have pecuniary interest or some
interest by which their legal rights or liabilities are affected…..Thus, the concept of PIL
which has been and is being fostered by judicial activism has become an increasingly
important one setting up valuable and respectable records specially in the Arena of
Constitutional and legal treatment for the un- represented and under represented.

Access to justice is one of the important aspects for any human being to protect
their rights. When we talk about the access to justice to weaker sections it is almost
illusory one due to their poverty, ignorance and illiteracy. For weaker sections the rights
and benefits conferred by the Constitution meant nothing for them as they lacked the
capacity to assert their rights. The Constitution had indeed shown a great concern for
the underprivileged, conferred on them many rights and entitlements and laid
obligations on the State to take measures for improving the conditions of their life.
Towards that end, laws were enacted and administrative programmes formulated by the
State for bringing about social and economic change and ensuring distributive justice
to the people. But these Constitutional edicts, legal enactments and administrative
measures needed to be implemented and enforced with vigor and dynamism, creativity
and imaginatively and underprivileged assisted to reap their benefits and assert their
rights. Someone had to act.
A survey of public interest litigations in our country shows that people have
gone to Courts when they found that there was no other means of redressal.
Unfortunately, the Executive in a vast number of cases was found to be no longer
responsive to protests expressed by the people. The political leadership was expected
to be sensitive to the urges and aspirations of the people. It was found not to be so.
Matters, which have gone to Courts under PIL, were essentially of concern to
numerically small and powerless minorities. Where a group of people is small and is
not likely to have any organized strength to make itself politically, judicial process is
preferred through PIL, which has by now come to be accepted as a new method by
which, to some extent, public injuries can be redressed or the Government, its agents or
instrumentalities compelled to do their own duty in the interest of the citizen. This
exercise by the Courts is aimed to serve the cause of justice and wean the people away
from the lawless street and bring them to the Court of law-to maintain the rule of law.

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 The concept as to why the doctrine of locus standi must be diluted or liberalised
is to be found in the concurring judgment of Krishna Iyer, J. in Fertilizer Corporation
Kamgar Union. In this case Krishna Iyer J. enunciated the reasons for liberalisation of
the rule of the doctrine of locus standi to meet the challenges of the time. This matter
received attention also in the landmark decision of the Supreme Court in the judges
transfer case. Six learned judges out of seven upheld the locus standi of the lawyers in
challenging the validity of the circular issued by the Law Minister of India
onMarch18,1981, so also non-extention of the term of Additional Judge Shri. S.N.
Kumar and transfer of Chief Justice of Patna, Shri. K.B.N. Singh. This aspect was dealt
at length by Bhagwati J in his judgment. While agreeing with what was stated by
Krishna Iyer, J in Fertilizer Corporation Kamgar Union, Bhagwati, J reviewed the law
– both Indian and foreign – and observed:

“It is fascinating exercise in the Court to deal with public interest litigation because
it is a new jurisprudence which the court is evolving, a jurisdiction which demands
judicial statesmanship and high creative ability. The frontiers of public law are
expanding far and wide new concepts and doctrines which will change the complexion
of the law and which were so far embedded in the womb of the future, are beginning to
be born.”

Ultimately the Supreme Court has firmly established the rule regarding the
public interest litigation. The Court held that any member of the public having
“sufficient interest” can approach the court for enforcing constitutional or legal rights
of other persons and redressal of a common grievance. However, the Court said that it
would have to be decided from case to case as to whether the person approaching the
court for relief has “sufficient interest” and has not acted with mala fide or political
motives. In the instant case, the court upheld the right of the practicing lawyer to
maintain a writ petition under Art.32 on matters affecting the independence of judiciary.

Hence we can say that the reasons for liberalizing the rule of doctrine of locus
standi given by Krishna Iyer, J in Fertilizer Corporation Kamgar Union case and the
ideal of PIL was blossomed in S.P.Gupta case. After the epoch-making decision of the
Supreme Court in Judges Transfer Case, this matter came to be examined in

83
detail in Bandhua Mukti Morcha, an organization dedicated to the cause of release of
bonded labours in formed the Supreme Court through a letter that they conducted a
survey of the stone-queries situated in Faridabad District of the State of Haryana and
found that there were a large number of labours working in these stone-queries under
“inhuman and intolerable conditions” and many of them were bonded labours. The
petitioners prayed that a writ be issued for proper implementation of the various
provisions of the Constitution and statutes with a view to ending the misery, suffering
and helplessness of those labours and release of bonded laborers. The Court treated
letter as a writ petition and appointed a Commission consisting of two advocates to visit
these stone-queries and make an enquiry and report to the Court about the existence of
bonded laborers. Speaking for the majority Bhagwati, J on behalf of himself and Pathak
and Amarendra Nath Sen, JJ, held that where a public interest litigation alleging the
existence of bonded laborers is filed it is not proper on the part of the Government to
raise preliminary objection. On the contrary, the Government should welcome an
enquiry by the court so that if it is found that there are bonded laborers or workers living
inhuman condition such a situation can be set right by the Government.

The advent of Public Interest Litigation is one of the key components of the
approach of “judicial activism” that is attributed to the higher judiciary in India. The
verdict of Bhagwati, J in M. C. Mehta v. Union of India, opened the doors of the highest
Court of the nation for the oppressed, the exploited and the down trodden in villages of
India or urban slums. The poor in India can seek enforcement of their fundamental
rights from the Supreme Court by writing a letter to any judge of the Court even without
the support of an affidavit. The Court has brought legal aid to the door steps of the
teeming millions of Indian which the executive has not been able to do despite that a
lot of money is being spent on new legal aid scheme operating at the Central and State
level.

Supreme Court of India in Narmada Bacho Andolan v. U. O. I. held that Public

Interest Litigation was an invention essentially to safeguard and protect human rights
of those people who were unable to protect themselves. Public Interest Litigation can
be entertained onlyif the impugned action is violative of fundamental rights of persons
who are not in a position to protect their own interest and the cause is espoused by
persons without oblique motive. The Petitioner must inspire confidence.

84
Such petition should be entertained; otherwise faith of common man in the institution
of judiciary and democratic setup of country would be weakened. However, the Court
must be satisfied that its forum is not being misused by any unscrupulous litigant,
politician or busy body.

In the recent past Public Interest Litigation has acquired a new dimension. Apart
from securing several non–justifiable socio–economic rights as guaranteed under the
Fundamentals Rights, the Supreme Court has frequently resorted to a novel feature in
the field of Human Rights jurisprudence such as compensatory jurisprudence, judicial
law making with a view to secure justice to the down– trodden and also to the oppressed
people. Public Interest Litigation is a weapon which has to be used with care and
caution. The judiciary has to be extremely careful to see that whether it contains public
interest or private vested interest. It is to be used as an effective weapon in the armory
of law for delivering social justice to citizens. The strategy of Public Interest Litigation
should not be used for suspicious products of mischief. It should be aimed at the
redressal of genuine public wrong or public injury and not publicity–oriented or
founded on personal vendetta.

The courts must be satisfied about (a) the credentials of applicant, (b) prima
facie correctness of nature of information given by him, (c) information being not vague
and indefinite before entertaining PIL. The Court has to strike balance between two
conflicting interests; (i) nobody should be allowed to indulge wild and reckless
allegations; and(ii) avoidance of public mischief.19 Hence the Court is ordinarily
expected to be satisfied that there is some element of public interest, that the transaction
impugned involves malafides, and that there is a need for balancing the consequences
of the public good with the act of the State.

There have been in recent times, increasingly instances of abuse of Public

Interest Litigations. Therefore, there is a need to re–emphasize the parameters within
which Public Interest Litigation can be resorted to by a petitioner and entertained by the
court. It was essentially meant to protect basic Human Rights of week and
disadvantaged. Public Interest Litigation has not been moved under disguise with some
ulterior motive or some purpose. The courts are now imposing moderate to heavy costs
in cases of misuse of Public Interest Litigation which should be an eye opener for non–
serious Public Interest Litigation mover.

85
 A. Compensation for Murder

In murder cases, courts are of the view that true justice will be rendered only
when proper compensation is provided to the dependents of the deceased. The amount
of compensation awarded ranges from Rs. 10,000 to Rs.1, 00,000 or sometime more
than that depending upon the number of dependents of the deceased and capacity of the
accused to pay the same. The recent development is that the Court directed the State to
pay compensation when the accused is poor and don’t have the capacity to pay
compensation. The Court in several cases directed the State to frame the compensation
scheme and ultimately the Government took the initiative to insert the Section 357 in
the Code of Criminal Procedure.

In Guruswamy v. State of Tamil Nadu, the Supreme Court awarded Rs.10,

000ascompensationtothewidowand the minor children of the deceased. In this case five
accused with weapons caused injuries to the deceased which resulted in his death due
to a dispute over water among brothers in a family. The Supreme Court imposed a fine
of Rs. 3500 on each of the accused and the same amount to be paid to the widow of the
deceased. In Swaran Singh v. State of U.P., the Supreme Court treated compensation as
an alternative to imprisonment. On special leave petition, it upheld the conviction but
reduced the sentence to the period already undergone (one year) by the accused. It
directed the accused to pay to the widow of the deceased a fine of Rs.20,000 by way of
compensation under Section 357 of the Criminal Procedure Code.

In Saheli: A Women’s Resources Centre v. Commissioner of Police, Delhi

Police Headquarters, the State was held liable to pay compensation payable to the
mother of the deceased who died as a result of beating and assault by the police. In this
case reference was made to the State’s liability for tortuous acts of its servants to argue
that the State liability for tortuous acts has to be determined on the principle of
Sovereign Immunity. But in that case the State’s plea of sovereign immunity for
tortuous acts of its servants was confined to the sphere of liability in tort, which is
distinct from the State’s liability for contravention of fundamental rights to which the
doctrine of sovereign immunity has no application. Similarly, in Nilabati Behera v.
State of Orissa, the Court denied the defence of sovereign immunity and award
compensation of Rs. 1, 50,000 to petitioner for the death of her son in police custody.
The Court further observed that:

86
 “Administrative sclerosis leading to flagrant infringements of fundamental
rights cannot be corrected by any other method open to the judiciary to adopt. The right
to compensation is some palliative for the unlawful acts of instrumentalities which act
in the name of public interest and which present for their protection the powers of the
state as shield. If Civilization is not to perish in this country as it has perished in some
others too well-known to suffer mention, it is necessary to educate ourselves into
accepting that, respect for the rights of individuals is the true bastion of democracy.
Therefore, the State must repair the damage done by its officers to the petitioner's rights.
It may have recourse against those officers"

In both the cases the Court denied the defence of sovereign immunity and held
that the State is vicariously liable for the act of its servant or officer. In anothercase58,
the same principle was followed and the State was held liable for depriving the
respondent’s son his precious right to life. The facts of the case were that, Nasiruddin,
the son of the respondent was picked upbythepoliceofficerson15-04-1996and was
lodged in Tihar Jail. He died while in custody on 13-07-1996 and 15 injuries were
noticed on his body as per post- mortem report. In order to have second opinion about
the cause of the death, a Board of Doctors was appointed by the Government of National
Capital territory of Delhi. According to its report, though most of the injuries could
have been self-inflicted, it was not as in the case of injury Nos. 11 and 13 to 15.
Accepting the writ petitioner’s plea that the death was custodial in nature, the State held
to be liable to pay compensation and accordingly compensation was fixed at 4.25 lakhs
to be given by the State to the writ petitioner. It was further directed that the
responsibility should be fixed on the persons for beatings administered to the deceased
leading to his death and for taking action against those erring official/officers. To
support the above observation, the court rightly referred to Article 9 of the International
Covenant on Civil and Political Rights, 1966 and held that the state is liable to pay
compensation for police atrocities. The court further held that the said provision
indicates that an enforceable right to compensation is not alien to the concept of a
guaranteed right. It is also pertinent to mention that the provision of compensation to
the crime victims is crying need of the honour. The International Covenant on Civil and
Political Rights, 1966 indicates that an enforceable right to compensation is
conceptually integral to Human Rights.

B. Compensation for Sexual Assault

87
 The Apex Court and High Courts passed several judgments to protect the rights
of victims of sexual assault. The Court time to time gives the directions to Government
to take initiative to protect the victims of sexual assault. In Kunhimon v. State of
Kerala, a young rustic girl who suffered from Epilepsy and Somnambulism were raped
by five persons. The High Court of Kerala states that rape is an offence of invoking
extreme moral turpitude, at once displaying callous disregard for dignity of the human
being and justifies the necessity of compensation to rape victims. The Court further
observed that courts should enforce the conscience of law as seen in Section 357 of the
CrPC. The High Court sentenced the four accused to paya fine of Rs.3000 each and the
fifth accused, to pay Rs. 10,000 as compensation to rape victim. In another case the
Apex Court has come to the rescue of the victims of sexual assault by holding the
interim compensation maybe awarded to a rape victim even during the pendency of the
criminal trial.60 The Court further observed that unfortunately, a woman, in our country,
belongs to a class or group of society who are in a disadvantaged position on account
of several social barriers and impediments and have, therefore, been the victim of
tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy
equal status. Women also have the right to life and liberty; they also have the right to
be respected and treated as equal citizens. Their honour and dignity cannot be touched
or violated. They also have the right to lead an honourable and peaceful life. Women,
in them, have many personalities combined. They are Mother, Daughter, Sister and
Wife and not play things for centre spreads in various magazines, periodicals or
newspapers nor can they be exploited for obscene purposes. They must have the liberty,
the freedom and, of course, independence to live the roles assigned to them by Nature
so that the society may flourish as they alone have the talents and capacity to shape the
destiny and character of men anywhere and in every part of the world.

Rape is thus not only a crime against the person of a woman (victim), it is a crime
against the entire society. It destroys the entire psychology of a woman and pushed her
into deep emotional crises. It is only by her sheer will power that she rehabilitates
herself in the society which, on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated crime. It is a crime against
basic human rights and is also violative of the victim's most cherished of the
Fundamental Rights, namely, the Right to Life contained in Article 21 of Indian

88
Constitution. To many feminists and psychiatrists, rape is less a sexual offence than an
act of aggression aimed at degrading and humiliating women. The rape laws do not,
unfortunately, take care of the social aspect of the matter and are inept in many respects.
Finally, Court directed to Bodhisattwa gautam shall pay to Subhra Chakraborty a sum
of Rs. 1000 /- every month as interim compensation during the pendency of criminal
case and also directed the petitioner to pay arrears of compensation at the same rate
from the date on which the complaint was filed till date.
Hence the Court emphasis the necessity of adequate compensation to the victims
of sexual assault for the loss of reputation, agony, torture, misery and the deprivation
of the prospect of marriage and settling down to a serene family life. In Delhi Domestic
Working women’s Forum v. Union of India, the Court held that a Criminal Injuries
Compensation Board should be constituted for the award of compensation whether or
not convicted has taken place. To espouse the pathetic plight of four domestic servants
who were subjected to indecent assault by seven army personnel in a train, the Delhi
Domestic Women’s Forum filed a writ petition in the Supreme Court under Article 32
of the Constitution of India. The forum urged the Supreme Court to spell out the
parameters on expeditious conduct and investigation of trial including compensation to
victims of rape. The Apex Court seriously takes the note of entire matter and finally
gives the broad parameters to protect the interest of victims of sexual assault.

(1) The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with the criminal
justice system. The role of the victim's advocate would not only be to explain to the
victim the nature of the proceedings, to prepare her for the case and to assist her in the
police station and in court but to provide her with guidance as to how she might obtain
help of a different nature from other agencies, for example, mind 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.
(2) Legal assistance will have to be provided at the police station since the victim of
sexual assault might very well be in a distressed state upon arrival at the police station,
the guidance and support of a lawyer at this stage and whilst she was being

89
Questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation
before any questions were asked of her and that the police report should state that the
victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station
for victims who did not have a particular lawyer in mind or whose own lawyer was
unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the
earliest convenient moment, but in order to ensure that victims were questioned without
undue delay, advocates would be authorized to act at the police station before leave of
the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be maintained, as far as necessity.

(7) It is necessary, having regard to the Directive Principles contained under Article 38
clause -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.

(8) Compensation for victims shall be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a conviction
has taken place. The Board will take into account pain, suffering and shock as well as
loss of earnings due to pregnancy and the expenses of child birth if this occurred as a
result of the rape. First time the Apex Court gives detail guidelines to protect the rights
of Victims of sexual assault and clearly spell out the necessity of legal help and
assistance at the time of filing first information report and also to compensate such
victims. To understand the agony of rape victims, a Division Bench comprising Justices
Kuldeep Singh and S. Sagir Ahmed observed:

“If the court trying an offence of rape has jurisdiction to award the
compensation at the final stage, there is no reason to deny to the Court the right to award
interim compensation. The jurisdiction to pay interim compensation shall be treated to
be part of the overall jurisdiction of the Courts trying the offence of rape which is an
offence against the basic human rights and also the fundamental right of personal life
and liberty…. Unfortunately, a woman in our country, belongs to a class or group of
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society who are in a disadvantaged position on account of several social barriers and
impediments and have therefore, been the victim of tyranny at the hands of men with
whom they, fortunately under Constitution enjoy equal rights.”62 Similarly the Apex
Court granted compensation to foreign tourist for sexual assault and clearly states that
foreigners are also entitled to protect their fundamental rights. As in Chairman,
Railway Board v. Chandrima Dass, the Apex Court ordered Rs.10 lakh compensation
for a foreign tourist from Bangladesh who was raped by the Railway employees in the
Yatri Niwas at Calcutta on February 26, 1998. The victim has arrived at Howarh
Railway station from Bangladesh with a view to catch a train for Ajmer. She was taken
by some of the employees of the Railway to Yatri Niwas. The room of the Yatri Niwas
was booked in the name of one of the employees against Railway card pass. She was
raped there by four Railway employees. Later she was taken out a rented house by
another railway employee and again raped. Following the hue and cry she was rescued
by the police. The Apex Court held that the foreign national is also entitled to the
fundamental right to life in India. The Court said:

“As a national of another country, Smt. Hanuffa Khatoon could not be

subjected to physical violence at the hands of the Government employees who outraged
her modesty. The right available to her under Article 21 was thus violated.
Consequently, the State was under a constitutional liability to pay compensation to her.”

The contention of the Railway, that it cannot be held vicariously liable for the
offence of rape committed by its employees, for the liability would arise only when the
act complained of was performed in the course of official duty. Since rape cannot be
said to be an official act, the Government would not be liable even under the law of
torts, this contention on the part of State was rejected and Government asked to pay
compensation to victim of rape.

The Apex Court even granted a compensation for the offence of outraging
modesty of woman in a high profile case64, where the former Punjab Police Chief found
guilty under Section 354 and Section 509 of IPC as he patting Ms. Bajaj, a senior IAS
officer in the posterior while he was allegedly in inebriated condition at a party hosted
by then Financial Commissioner (Home) S. L. Kapoor at his residence on July 18, 1988.
The Court awarded a fine of Rupees 2 lakh as compensation to the victim. After the
verdict from Apex Court, Ms. Bajaj said her faith in the judicial system has been upheld

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and further she stated “my entire family has been through hell. Nobody can imagine the
kind of pressure we were under. But, I am happy, justice has been done.” By giving
such kind of judgment the Apex Court gives the message that nobody is above the law
and any person can be punished for his misbehavior towards woman.

Recently the Supreme Court, based on the news item published in the Business
and Financial News dated 23.01.2014 relating to the gang-rape of a 20 year old woman
of Subalpur Village, P. S. Labpur, District Birbhum, State of West Bengal, on the orders
of community panchayat as punishment for having relationship with a man from a
different community, by order dated 24.01.2014, took suo motu action and directed the
District Judge, Birbhum District, West Bengal to inspect the place of occurrence and
submit a report to this Court within a period of one week from that date.65The Court
request to Mr. Sidharth Luthra, Learned Additional Solicitor General to assist the Court
as amicus in the matter and also directed to the Chief Secretary to submit a detailed
report within a period of two weeks as to the steps taken by the police against the
persons concerned. Pursuant to the aforesaid direction, the Chief Secretary submitted a
detailed report on 10-02-2014 and the copies of the same were provided to the parties.

Considering the facts and circumstances of the case, the Court is of the view
that the victim should be given a compensation of at least Rs. 5 Lakhs for rehabilitation
by the State. Court directed State of West Bengal to make a payment of Rs.5 lakhs, in
addition to the already sanctioned amount of Rs. 50,000 within one month from today.
Besides this Court further stated that, the Court has some reservation regarding the
benefits being given in the name of mother of the victim when the victim herself is a
major (i.e. aged 20years). Thus, Supreme Court opined that it would be appropriate and
beneficial to the victim if the compensation and other benefits are directly given to her
and accordingly court did the order. While passing the order the Court Observed:

“The crimes, as noted above, are not only in contravention of domestic laws,
but are also a direct breach of the obligations under the International law. India has
ratified various international conventions and treaties, which oblige the protection of
women from any kind of discrimination. However, women of all classes are still

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suffering from discrimination even in this contemporary society. It will be wrong to
blame only on the attitude of the people. Such crimes can certainly be prevented if the
state police machinery work in a more organized and dedicated manner. Thus, we
implore upon the State machinery to work in harmony with each other to safeguard the
rights of women in our country.”

Recently on one of the important issue regarding the quantum of punishment,

the bench of Supreme Court headed by Tirath singh Thakur, J. expressed their view
and further stated that the Court should give such punishment that create the real
deterrence to the offender and there should be correlation or equality between the nature
of offence and the quantum of punishment given to the offender. The Haryana High
Court reduced the punishment of seven years given by the trial court to the period which
the offender spend in the jail and ask every accused to pay compensation of Rs. 25,000.
The Ravindra singh who is the brother of deceased Dulichand preferred an appeal to
Supreme Court against the order of High Court and while examine the facts of case the
Supreme Court does not extend the punishment but extend the amount of compensation
to Rs. 1, 25,000 and directs every accused to pay the same amount to the victims and
express theaboveviews.66 Hence the Supreme Court takes the serious note of the fact
that the victims should not be satisfied by giving less punishment to the offender and at
the same time the of purpose of punishment will not be served if the competent Court
does not take into consideration the correlation between the nature of offence and the
quantum of punishment.

C. Constitutional Remedy for Violation of Human Rights

In the Uttrakhand Stir (Rallyist) case the Allahabad High Court, on 9th
February,1996, delivered a historic judgment in a group of six cases arising out of the
incidents in Khatima, Mussoorie and Muzaffarnagar of the State of Uttar Pradesh in
September and October 1994. In the impugned case 24 persons were killed, seven
woman were raped, 17 were sexually molested, many others were injured and illegally
detained as a result of police firing and atrocities committed on a peaceful
demonstration for a separate State of Uttaranchal in 1994. The awarded compensation
of Rs. 10 lakh each to deceased victims families and Rs. 10 lakhs for rape victims
judging the crime of rape equivalent to death, Rs. 5 lakh to the victims of sexual
molestation; and Rs.2.5 lakh to Rs.50,000 for less serious injuries.

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The court advancing the cause of human rights and giving more teeth to the
constitutional guarantee for a right to live with dignity vide Article21 declared that the
court itself could award compensation in a case of human rights violation. The law with
regard to the power of the Supreme Court and the High Courts to direct payment of
compensation for infringement of fundamental rights by the employees of the State has
been very aptly summed up by the Supreme Court in D. K . Basu v. State of West
Bengal, the Court held that:

“Thus to sum up, it is now a well-accepted proposition in most of the

jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an
effective and sometimes perhaps the only suitable remedy for redressal of the
established infringement of the fundamental right to life of a citizen by the public
servants and the State is vicariously liable for their acts. The claim of the citizen is based
on the principle of strict liability to which the defence of sovereign immunity is not
available and the citizen must receive the amount of compensation from the State, which
shall have the right to be indemnified by the wrong doer. In the assessment of
compensation, the emphasis has to be on the compensatory and not on punitive element.
The objective is to apply balm to the wounds and not to punish the transgressor or the
offender, as warding appropriate punishment for the offence (irrespective of
compensation) must be left to the Criminal Courts in which the offender is prosecuted,
which the State, in law, is duty bound to do. The award of compensation in the public
law jurisdiction is also without prejudice to any other action like civil suit for damages
which is lawful available to the victim or the heirs of the deceased victim with respect
to the same matter for the tortious act committed by the functionaries of the State. The
quantum of compensation will, of course, depend upon the peculiar facts of each case
and no strait-jacket formula can be evolved in that behalf. There lief to redress the
wrong for the established invasion of the fundamental rights of the citizen, under the
public law jurisdiction is thus, in addition to the traditional remedies and not in
derogation of them. The amount of compensation as awarded by the Court and paid by
the State to redress the wrong done, may in a given case, be adjusted against any amount
which may be awarded to the claimant by way of damages in a civil suit.”
In Rudal Sah v. State of Bihar, the Court held that the State liable to pay compensation
to the petitioner for illegal detention, depriving him of his fundamental right to life and
personal liberty guaranteed under Article21 of the Constitution.

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The Petitioner who was detained in prison for over 14 years after his acquittal filed a
habeas corpus petition underArticle32 of the Constitution praying for his release on the
ground that his detention in the jail was unlawful. He also asked for certain other reliefs
including compensation for his illegal detention. In the light of above facts the Court
held that, the refusal to pass an order of compensation in favour of the petitioner will
be doing mere lip-service to his fundamental right to liberty which the State
Government has so grossly violated. Therefore, as an interim measure the State has to
pay the compensation of Rs. 30,000 to the petitioner.

In another case for illegal detention of the person in police custody was held to
be violation of his rights under Article 21 and 22 (2) of the Constitution and the Apex
Court exercising its power to award compensation under Article 32directed the State to
pay monetary compensation of Rs. 50,000 to the petitioner for violation of his human
rights. In Khatri v. State of Bihar71, the question of State liability to pay compensation
to the blinded prisoners for the violation of their fundamental rights under Article 21 of
Constitution was raised. Therefore, a great question before the Court as what relief
could be given for violation of fundamental right. Justice Bhagwati speaking for the
Court observed:

“The Court can certainly injunct the State for depriving a person of his life or
personal liberty except in accordance with procedure established by law but if life or
personal liberty is violated otherwise than in accordance with such procedure, is the
Court helpless to grant relief to the person who has suffered such deprivation? Why
should the Court not be prepared to forge new tools and devise new remedies for the
purpose of vindicating the most precious of the precious fundamental rights to life and
personal liberty.” The Court described this issue as of gravest constitutional importance
involving exploration of new dimension of the right to life and personal liberty.

In Oraon v. State of Bihar72, the Supreme Court directed the State Government
of Bihar to pay a sum of Rs. 15,000 to Bhama Charan Oraon who was illegally detained
for six years and kept in mental hospital when he was not insane. In another case the
Supreme Court through a writ petition of habeus corpus awarded exemplary costs on
failure of the detaining authority to produce two missing persons, on assumption that
they were not alive and had met unnatural deaths at the hands of the security forces.
The Court directed the payment of Rs.1,00,000 each to the Wives of the missing
persons.73
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 Compensation for contravention of human rights freedoms, the protection of
which is guaranteed in the Constitution, is an acknowledged remedy for enforcement
and protection of such rights, and such a claim based on strict liability made by resorting
to a constitutional remedy provided for the enforcement of fundamental right is ‘distinct
from and in addition to the remedy in private law for damages for the tort’ resulting
from the contravention of fundamental rights. From the above discussion it can be
inferred that development of constitutional remedy affords effective remedy in the form
of monetary compensation on violation of human rights. The Supreme Court gives
various directions to protect the rights of woman and to establish the rule of law by
curtailing the powers and emergence of Khap Panchayat and Village Panchayat which
are curse to humanity. The recurrence of such crimes has been taken note of the Court
in variety of cases and seriously condemned such matter where the persons are tortured
in the name of caste, gotra, religion and sometime such cases result into honour killing.

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 Chapter VI

Conclusion and Suggestions

In conclusion, the human rights perspective of victim status in the Indian criminal justice system
reveals a complex and multifaceted set of challenges faced by victims of crimes in India. The
challenges stem from a range of social, cultural, and institutional factors, including social
stigma, inadequate legal protection, lack of support services, financial constraints, fear of
retaliation, and cultural and religious barriers. These challenges prevent victims from accessing
justice and obtaining redress for the harm they have suffered, perpetuating a cycle of violence
and impunity.
To address these challenges, there is a need for greater awareness about victim rights, better
support services for victims, and reforms to the criminal justice system that prioritize the needs
and rights of victims. This includes better training and resources for police and judicial officials,
as well as reforms to the court process to ensure that victims are heard and their rights are
protected. Additionally, there is a need for more comprehensive support services, such as
counseling, medical care, and legal aid, to help victims recover from the harm they have
suffered and navigate the legal system.
Finally, it is important to recognize and address the impact of social and cultural factors on
victim status in India. This includes addressing the discrimination faced by marginalized
communities and challenging cultural attitudes towards gender and sexuality that perpetuate
violence and stigmatize victims.
In short, protecting the human rights of victims in the Indian criminal justice system requiresa
comprehensive approach that addresses the challenges faced by victims and prioritizes their
needs and rights. With greater awareness, better support services, and reforms to the criminal
justice system, it is possible to create a system that is more just and equitable for all.

Suggestions for improving victim status in the Indian criminal justice system:

1. Increase awareness: There is a need to increase public awareness about the rights of
victims in the criminal justice system. This can be done through public campaigns,
media outreach, and community education programs.
2. Strengthen legal protection: Victims of crimes in India often face inadequate legal
protection. This can be addressed through legal reforms that strengthen the rights of
victims, such as the right to be heard in court and the right to compensation.
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 3. Provide support services: Victims of crimes require a range of support services,
including counseling, medical care, and legal aid. There is a need to expand and improve
the availability of these services across the country.
4. Improve police response: Police play a critical role in protecting victims of crimes.
There is a need to improve police response to crimes against victims, including better
training for police officers and increased resources for victim support.
5. Strengthen the role of prosecutors: Prosecutors play an important role in ensuring that
victims receive justice. There is a need to strengthen the role of prosecutors in protecting
the rights of victims, including ensuring that victims are informed about the status of
their case and their rights in the legal process.
6. Increase victim participation: Victims should be allowed to participate more actively in
the criminal justice system, including being present during trial proceedings, providing
victim impact statements, and being consulted during plea negotiations.
7. Address social and cultural barriers: Social and cultural barriers often prevent victims
from accessing justice in the criminal justice system. There is a need to address these
barriers, including challenging cultural attitudes towards gender and sexuality that
perpetuate violence and stigmatize victims.
8. Provide support services for victims: There is a need for comprehensive support services
for victims, including counseling, medical care, legal aid, and financial assistance.
These services should be available to victims at all stages of the criminal justice process
and should be free of cost or at subsidized rates.
9. Address cultural and social factors: It is important to address cultural and social factors
that impact victim status in India. This includes challenging cultural attitudes towards
gender and sexuality that perpetuate violence and stigmatize victims, as well as
addressing the discrimination faced by marginalized communities.
10. Ensure compensation for victims: Victims of crimes in India often face financial
hardships and are not compensated for their losses. There is a need to ensure that victims
are adequately compensated for the harm they have suffered, including lost wages,
medical expenses, and other related costs.

Overall, these suggestions can help to improve the status of victims in the Indian criminal justice
system and ensure that victims are treated with dignity, respect, and compassion. By prioritizing
the needs and rights of victims, we can create a criminal justice system that is more just and
equitable.

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