Protection of Victim’s Rights and Compensation

 

Dr. Jayant Kumar Dhurandhar

Assistant Professor, School of Studies in Law, Pt. Ravishankar Shukla University, Raipur

 

 

ABSTRACT:

A significant of article is to examine the rights of victims and improve the position of victims. Judiciary seeks to change in the thinking about the human rights of victims.   Several laws as well as Judiciary, Commissions and Committee of legislature protect to the rights of victims and give adequate compensation. Justice of Social, Economic and Political are a mirror of Indian Constitution in which victim rights is a concept of Social Justice. Social Justice is not possible without protection of victims’ rights. The Justice V.S. Malimath Committee is recommitted to victim’s rights and their participation in cases and adequate compensation.  It should be mandated access to the justice and fair treatment accompany with victims. 

 

KEYWORDS: Criminal Justice and Social Justice.

 

INTRODUCTION:

All over the world in different countries, victims of crime are protected, assisted, resituated and compensated by appropriate laws and acts. But in India the victims of crime play only an insignificant role in the criminal justice process. Though there are some provisions under the Indian Constitution and some sections in the Code of Criminal Procedure, 1973 to protect the rights of the victims and for providing compensation, the criminal courts at the lower level in India have ignored those provisions for a long time and not utilized them during their sentencing processes. In addition to the existing provisions under the Indian criminal laws, a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide “justice to victims of crime”. Victim-orientation includes greater respect and consideration towards victims and their rights in the investigative and prosecution process, provisions for greater choices to victims in trial and disposition of the accused, and a scheme of reparation/compensation particularly for victims of violent crimes (Madhava Menon, 2004: 362-363). In 2009, section 357A was added to the CrPC, where the compensation can be recommended even in cases where the trial ends in acquittal or discharge, provided there is a need for rehabilitation of victims.

 

Definitions of Compensatory Justice:

Under the Probation of Offenders Act, 19851, while releasing an accused on probation or with admonition, the Court may order the offender to pay compensation and cost to the Victim. Similarly,

1. Compensation for accusation without reasonable cause

2. Order to pay compensation out of fine or even without a sentence fine3

3. Compensation up to Rs. 100 to persons groundlessly arrested4

4. Order to pay cost in non –cognisable cases5


Table-1 Cognizable crimes registered in India during 2009-20137

Year

Number of Cases

Ratio  (IPC: SLL)

Rate per (1,00,000 population)

IPC

SLL

Total

2009

21,21,345

45,53,872

66,75,217

1:2.15

570.8

2010

22,24,831

45,25,917

67,50,748

1:2.03

569.3

2011

23,25,575

39,27,154

62,52,729

1:1.69

516.7

2012

23,87,188

36,54,371

60,41,559

1:1.53

497.9

2013

26,47,722

39,92,656

66,40,378

1:1.51

540.4

 

General Crime Statistics

Incidence

Rate

IPC

SLL

IPC

SLL

2012 : 23,87,188

2012 : 36,54,371

2012 : 196.7

2012 : 301.2

2013 : 26,47,722

2013 : 39,92,656

2013 : 215.5

2013 : 324.9

 


Provide for payment of compensation and costs to the Victims of crime under different circumstances. Section 358 of the code provides for a small compensation payable to an illegally arrested person by any other person who causes a police officer to arrest him. What is noteworthy is that a prosecution is the sine qua non for an order of compensation. Thus if there is no prosecution or no sentence, there can be no compensation.6 Similarly, compensation may be paid at the sentencing stage to persons who are, under the Fatal Accidents Act (13 of 1855), entitled to recover damages from the convict.

 

Crime Scenario in India:

Table 1 provides an overview of the crime scenario in India. In the year 2012, there was a sharp increase in the number of cases registered and in the year 2013, the number of cases registered declined drastically by 9.9 percent when compared to the year 2012. In the year 2012, the Indian Penal Code (IPC) and Special and Local Laws (SLL) crimes constituted 39.5 and 60.5 percent, respectively and during 2013, 60.1 percent accounted for SLL crimes and 39.9 percent for IPC crimes. The rate (per 1,00,000 population) of total IPC and SLL crimes was 540.4 in 2013, showing a increasing over the previous years.

 

·        A total of 66,40,378 cognizable crimes comprising 26,47,722 Indian Penal Code (IPC) crimes and 39,92,656 Special & Local Laws (SLL) crimes were reported, showing an increase of 9.9% over 2012 (60,41,559 cases).

·        During 2013, IPC crime rate has increased by 9.6% over 2012 while SLL crime rate has increased by 7.9% over 2012.

·        Percentage share of SLL was 60.1% while percentage share of IPC cases was 39.9% reported during 2013.

 

Provisions in Indian Criminal Laws:

The Code of Criminal Procedure, 1973 has recognized the principle of victim compensation. Section 250 authorizes magistrates to direct complainants or informants to pay compensation to people accused by them without reasonable cause. Again Section 358 empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully. Finally, Section 357 enables the court imposing a sentence in a criminal proceeding to grant compensation to the victim and order the payment of costs of the prosecution. In 2009, section 357A was added to the CrPC, where the compensation can be recommended even in cases where the trial ends in acquittal or discharge, provided there is a need for rehabilitation of victims. However, this is on the discretion of the sentencing court and is to be paid out of the fine recovered. Though the principle underlying Section 357A of the Code of Criminal Procedure, 1973 is very much the same sought to be achieved by the UN Basic Principles of Justice for Victims of Crime, its scope is extremely limited as:

1. The section applies only when the accused is convicted;

2. It is subject to recovery of fine from the accused when fine is part of the sentence;

3. When fine is not imposed as part of the sentence, the magistrate may order any amount to be paid by way of compensation for any loss or injury by reason of the act for which the accused person has been so sentenced (Sec. 357(3)); and

4. In awarding the compensation, the magistrate is to consider the capacity of the accused to pay.8

 

Victim Compensation:

After section 357 of the principal Act, the following section shall be inserted, namely:—

 

“357A.(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation,

the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”

 

Given the low rates of conviction in criminal cases (less than 10 percent), the inordinate delay in the conclusion of proceedings and the relatively low capacity of the average accused persons, it is preposterous to say that a victim compensation scheme really operates in administration of justice in India (Madhava Menon, 2004: 363). Besides the above provisions relating to restitution to victims under the Code of Criminal Procedure, 1973, Section 5 of the Probation of Offenders Act, 1958 has also empowered the courts to require released offenders to pay the restitution and costs as under:

 

1. The court directing the release of an offender under Section 3 or Section 4 may, if it thinks fit, make at the same time a further order directing him to pay:

a. Such restitution as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

b. Such cost of the proceeding as the court thinks reasonable.

2. The amount ordered to be paid under subsection (1) may be recovered as a fine in accordance with the provisions of Sections 357 and 358 of the Code.

3. A civil court trying any suit out of the same manner for which the off ender is prescribed, shall take into account “any amount paid or recovered as restitution under subsection (1) in awarding damages”9

In addition to the existing provisions under the Indian criminal laws, a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide “justice to victims of crime”.

 

Provisions in Constitutional Law of India:

The Indian Constitution has several provisions which endorse the principle of victim compensation. The constellation of clauses dealing with Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) laid the foundation for a new social order in which justice, social and economic, would flower in the national life of the country (Article 38). Article 41, which is relevance to victimology in a wider perspective, mandates, inter alia, that the state shall make effective provision for “securing public assistance in cases of disablement and in other cases of undeserved want”. Surely, crime victims and other victimized people swim into the haven of Article 41. Article 51-A makes it a fundamental duty of every citizen of India “to protect and improve the natural environment and to have compassion for living creatures” and “to develop humanism”. Further, the guarantee against unjustified deprivation of life and liberty (Article 21) has in it elements obligating the state to compensate victims of criminal violence (Basu, 2003).

 

Committee on Reforms of Criminal Justice System:

The Government of India, Ministry of Home Affairs by its order dated 24 November 2000 constituted the Committee on Reforms of Criminal Justice System to consider measures for revamping the criminal justice system. During the last some times, there has been significant change in the thinking of the judiciary about the human rights of victims. The concern of the courts and the judicial commissions and committees about the need to have a law on victim compensation or a comprehensive law on victim justice has been reflected in their judgments and reports.

·        The Law Commission of India, 1996:

The Law Commission, in its report in 1996, stated that, “The State should accept the principle of providing assistance to victims out of its own funds,

(i) In cases of acquittals; or

(ii) Where the offender is not traceable, but the victim is identified; and

(iii) Also in cases when the offence is proved” (Law Commission of India Report, 1996).10

 

·        The Justice Malimath Committee on Reforms of Criminal Justice System (Government of India, 2003):

The Justice V. S. Malimath Committee has made many recommendations of far-reaching significance to improve the position of victims of crime in the CJS, including the victim’s right to participate in cases and to adequate compensation. Some of the significant recommendations include:11

1. The victim, and if he/she is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the charge is punishable with 7 years imprisonment or more.

2. In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in the court proceedings.

3. The victim has a right to be represented by an advocate of his/her choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.

4. The victim shall have the right to participate in criminal trial.

5. The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.

6. Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.

7. Victim compensation is a state obligation in all serious crimes, whether the off ender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by the Parliament. The draft bill on the subject submitted to the Government in 1996 by the Indian Society of Victimology provides a tentative framework for consideration.

8. The victim compensation law will provide for the creation of a victim compensation fund to be administered possibly by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn.

 

One of the objectives of the committee was “to suggest ways and means of developing synergy among the judiciary, the prosecution and the police to restore 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”. While referring to the position of victims in the criminal justice system in India today, the committee observed “that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in the criminal justice administration”12. With this general observation the committee reviewed the position of victims under the criminal justice system, including the present role that the victim is assigned under the existing criminal law; provisions for compensation of victims of crime and so on. The report has also highlighted how the Supreme Court and the High Courts in India have evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. The report stated “medical justice to the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of the liberal package of reliefs and remedies forged by the apex court. The decisions in Nilabati Behera v. State of Orissa13 and in Chairman, Railway Board v. Chandrima Das14, are illustrative of this new trend of using constitutional jurisdiction to do justice to the victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the state for the failure to protect the rights of the victims”15. The committee also examined the rights of the victims of crime in different criminal justice systems worldwide. The committee was impressed with the report on “Criminal Justice: The Way Ahead” presented to the British Parliament in February 2001, as the report proposed various amendments and recommendations.16

 

An International Perspective of victims:

In 1985, virtually simultaneously two powerful documents were issued urging the international community to enhance the status of victims. The first one was the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The second one was the Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure which was also adopted in 1985. Although differences in language and in details cannot be overlooked, the content of the Declaration and the Recommendation were to a large extent overlapping and had subsequently been echoed and expanded on in other international documents of a similar nature, such as the Statement of Victims’ Rights in the Process of Criminal Justice, issued by the European Forum for Victim Services in 1996, and the European Union Framework Decision on the Standing of Victims in Criminal Proceedings. The most recent and most comprehensive example is the Council of Europe Recommendations (2006) 8 on assistance to crime victims, adopted on 14 June 2006.17

 

In 1985, the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration recognized four types of rights and entitlements of victims of crime. They are:

(a) Access to justice and fair treatment — which includes prompt redress, right to be informed of benefits and entitlements under law, right to necessary support services throughout the proceedings, and right to protection of privacy and safety.

(b) Right to restitution — return of property lost or payment for any harm or loss suffered as a result of the crime.

(c) Compensation — when compensation is not fully available from the offender or other sources, the State should provide it at least in violent crimes that result in serious bodily injury, for which a national fund should be established.

(d) Personal assistance and support services — includes material, medical, psychological, and social assistance through governmental, voluntary, and community-based mechanisms.18

 

Some of the important recommendations of the Council of Europe Recommendations (2006)8 on the assistance to victims and prevention of victimization include the following elements: assistance, role of the public services, victim support services, information, rights to effective access to other remedies, state compensation, insurance, protection, mediation, raising public awareness of the effects of crime and so on. It has also recommended for provision of restitution and compensation to victims of crime.

 

It is also important to learn from the experiences of the United States in providing justice to victims of crime. Without the report of the victims or witnesses, most crimes would not come to the attention of the police. Without the cooperation of the victim or witness in identifying the off ender, most crimes could not be solved, and the off ender could not be brought to justice. In the United States, during the late 1960s, the Federal Government launched a series of surveys designed to estimate the number of crime victims. This research showed that, while arrest rates are high, many victims failed to report crimes. Other studies noted that once an arrest had been made, many victims failed to co-operate in the prosecution of offenders.

 

Compensatory aid to Crime Victims in India:

The analysis of the existing legal provisions in India for providing justice to victims of crime shows that there is a long way to go. The experiences at the international level, including the experience of the United States show that there is a lot needs to be done at the macro level. But at the micro level certain immediate and possible measures may be taken to help the victims of crime in India. Therefore, the first priority in the whole scheme of things is an all round sensitization of everyone concerned. The natural sequence of rendering meaningful justice, social and legal should proceed as follows:

1. Fair, considerate and sympathetic treatment by the police, hospitals, welfare organizations, prosecution and courts;

2. Prompt restitution/compensation to the victim for the injury or loss suffered by using the existing provisions; and

3. Security to victims and potential victims against victimization in future.19

 

The various assistance and services to victims during crime investigation include the following:

1. The first step in assisting the crime victim is

a. to facilitate their access to services that already exists; and

b. to get redressed from the impact of crime

This is partly a question of getting information from the victims, partly encouraging the victims to apply for services and partly sensitizing the service to the victim’s needs.

2. The police could improve their support for crime victims by ensuring the responding officer to provide the victim with a card that identifies key telephone numbers of organizations available in the community. The card should also contain:

a. the file number (crime number) of the case;

b. the name of the officer investigating the case; and

c. the phone number to contact regarding enquires about the progress of the case.

3. A victim’s support unit should be located in the police department, preferably at the sub-divisional level to co-ordinate matters relating to crime victims.

 

In Hari Singh v. Sukhvir Singh20, the Supreme Court had to exhort the criminal Courts to use this provision since “this power was intended to do something to reassure the Victim that he or she is not forgotten in the criminal justice system”. Recently, in Pamula Sarawathi v. State of A.P.21, the Supreme Court, while affirming the conviction of the four assailants of the appellant’s husband, directed them to pay a fine of Rs. 10,000/- which was directed to be paid to the appellant.

 

The Mamata Banerjee government's compensation scheme for atrocities is a reworked version of a central scheme which proposes a Rs 1.5 lakh compensation to rape victims. The state government, in fact, merged this scheme - 'Financial Assistance and Support Services to Victims of Rape: A Scheme for Restorative Justice' - implemented countrywide on August 1, last year, with the amended provisions laid under section 357A CrPC formulated during her tenure as the Union railway minister in 2009.22 

If the above stated steps are implemented by the law enforcement agencies in India, the position of victims in the criminal justice system will be improved substantially.

 

CONCLUSION:

Criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb, and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be. In any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources. A ray of hope is the recommendations of the Committee on Reforms of Criminal Justice System headed by Justice V. S. Malimath. The Committee has emphasized the need for a paradigm shift in the justice system. Hence, the Government of India may have to take efforts to implement the recommendations of the Committee on Reforms of Criminal Justice System. There should also be a change in the focus from criminal justice to victim justice, but victim justice should be perceived as complementary and not contradictory to criminal justice.

 

REFERENCE:

1.       Section 5 of the Act

2.       Cr.P.C. 1973, section of 250

3.       Cr.P.C. 1973, section of 357

4.       Cr.P.C. 1973, section of 358

5.       Cr.P.C. 1973, section of 359

6.       Dr. Justice A.S. Anand, ‘Victims of Crime – the unseen side’, (1988) 1 SCC (Jour)3

7.       National Crime Record Bureau, 2013 ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuser of Power’, 29 November 1985, available at: http://un.org/documents/ga/res/40/a40r034.htm

8.       Ranchhoddas, R., Thakore, K.D. (2002) The Code of Criminal Procedure (15th ed). Nagpur: Wadhwa & Co.

9.       Law Commission of India Report (1996) Victimology in 154th report on the code of criminal procedure 1973 (Act No. 2 of 1974) Chapter XV, pp. 57-65.

10.     The Justice V. S. Malimath Committee on Reforms of Criminal Justice System (Government of India, 2003), pp. 270-272

11.     Government of India (2003) Report of the Committee on Reforms of Criminal Justice System, 1, pp. 75–84.

12.     (1993) 2 SCC 746

13.     2000 Cr L J 1473 SC

14.     Government of India (2003) Report of the Committee on Reforms of Criminal Justice System, 1, p. 81.

15.     Government of India (2003) Report of the Committee on Reforms of Criminal Justice System, 1, p. 83.

16.     Groenhuijsen, M., Letschert, R. (eds) (2006) Compilation of International Victims’ Rights Instruments. The Netherlands: Wolf Legal Publishers.

17.     United Nations (1985) Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power Resolution No. 40/34

18.     www.doiserbia.nb.rs./img/doi/1450-6637/2007/1450-66370702051S.pdf

19.     (1988) 4 SCC 551

20.     (2003) 3 SCC 317

21.     timesofindia.indiatimes.com/city/kolkata/CM-tweaks-central-scheme-CrPC-for-compensation-package/articleshow/16305879.cms

 

Received on 14.03.2015

Modified on 25.03.2014

Accepted on 30.03.2015

© A&V Publication all right reserved

Research J. Humanities and Social Sciences. 6(1): January-March, 2015, 23-28

DOI: 10.5958/2321-5828.2015.00005.4