PERSPECTIVES IN VICTIMOLOGY IN CONTEXT OF

CRIMINAL JUSTICE SYSTEM

I Introduction
THE VIOLATORS of law are punished for maintenance of good order of the society
and safety of the people from time immemorial. The very harsh punishment is
prescribed for violators of law in the old Hindu scriptures of Manusmriti. The
deterrent punishment was considered important to control crime in those bygone
days. Subsequently with the advent of the Industrial Revolution, Renaissance and
French Revolution, a sea change was noticed in every waik of life and in every
corner of the planet. The criminologists focussed their attention towards the rights
of the criminals, and conditions of the prisoners and preached the doctrine of fair
play and justice even to those who had earlier perpetrated injustice on other
members of the society. Gradually it was also realised that the deterrent punishment
was ineffective in controlling crime and deterring criminals from committing the
crime. As a result of the study of crime from the standpoint of criminals, it was felt
that they are created by the society. Accordingly, anxiety was shown from national
and international forums for the treatment and restitution of criminals and as such
reformatory measures were taken for their rehabilitation so that they can come back
to the mainstream of the society. Thus, with the passage of time and increasing
interaction with the Western civilisation, the focus of the penologists, jurists,
criminologists and the government was shifted to the rights of the undertrials and
reformation of the convicts and the victims became the forgotten man of our
criminal justice system.

II Historical development of victimology

The victim was in oblivion till the close of the Second World War when some
criminologists took upon themselves the task of understanding the importance of
studying the criminal-victim relationship in order to obtain a better understanding
of crime, its origin and implication. Thus the seed of victimology as a branch of
criminology was sown in UK, West Germany, Canada, Australia, New Zealand and
USA. Victimology is basically the study of crime from the victim's point of view.
In other words, it is the science which makes victims the centre of study and aims
at an intensive understanding of the victim-offender relationship, investigates the
victim's share in crime causation, examines the ways and means to protect the
victims before commission of crime, during investigation and trial of the offender
and also restitution and reparation of the damages caused to him by perpetration
of crime.
After the Second World War, B. Mendelsohn developed this branch of crimi-
nology as there was growing concern for the plight of victims of all crimes. The

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first international conference on victimology under the auspices of the United

Nations was held at Jerusalem in the year 1973 followed by another conference at
Boston in 1976. There were many seminars and studies on victimology at regional,
national and international levels from 1976 to 1985, highlighting the problems of
victims, their legal position in criminal proceedings, compensation for the victims,
etc. The question arises, who is the victim in the context of the study of victimology.
If we take various types of victims who suffered because of human acts criminal,
negligent and accidental living conditions in society, natural disasters, then one
may not be able to focus attention on the problems of victims in the proper
perspective. This would defeat the very objective of the study of victimology,
However, in 1985 the 7th UN Congress in Milan included in its agenda "Victim
of Crime" and considerably widened the scope and study of victimology by declar-
ing the victims as persons, individually or collectively, who have suffered harm
physically, mentally or emotionally, economic loss or impairment of fundamental
rights through acts or omissions that are in violation of criminal laws operative
within the country. The definition appears to be quite exhaustive and can include
not only victims of crime, but also victims of, (i) the abuse of political and
economic power; (ii) traffic offences; (Hi) natural calamity; (iv) professional neg-
ligence; (v) business community; (vi) pollution and also voluntary victims where
drug addicts and persons committing suicide are involved. The object of this paper
is to, (/) highlight the problem of the victims while passing through the different
stages of the criminal justice system; (ii) find a possible solution by innovative
method within the existing system; and (Hi) focus on the areas of law reform.

Ill Victims of crime

The victims set the criminal law into motion and then go into oblivion. The
victims of property offences are rarely benefitted by. our criminal justice system.
Crimes like homicide, bodily injury causing permanent impairment or disfigure-
ment and rape leave behind a very traumatic effect on the victims, who need
medical care, legal assistance, restitution and compensation.

(1) Inadequacy of law in participation of victims in criminal cases

The present Code of Criminal Procedure does not recognise the right of the
victim to take part in the prosecution of cases instituted on the basis of the police
report. The victim is merely a witness in a state case. He has no right to prefer an
appeal against an order of acquittal of the accused by the trial court in a criminal
case instituted by the police. The state reserves the discretion not to prefer an
appeal and also to withdraw from the prosecution even in heinous offences. This
state power is often misused on political considerations. The victim of crime
becomes the victim of the criminal justice system, when a politically motivated
investigating or prosecuting agency shows a lack of interest or apathy in the matter
of investigation or prosecution on extraneous considerations. The procedural law
should be suitably amended so as to allow the victims to participate in every stage
of criminal justice system.

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(2) Grievances of victims of rape

The grievances of victims of rape are many and they take a number of forms.
When the victim of rape approaches the police station, she enters into the gateway
of the criminal justice system and is faced with interrogation which leads to
medical examination in an environment where she feels uneasy bcause the incident
of rape is again brought to the surface of the mind of the victim, which is followed
by harassment, delay, adjournment in repeated court appearances, insult at the
hands of the defence lawyer, loss of earnings, waste of time, when ultimately she
painfully realises that the system does not live up to its ideas and does not serve
her at all. In our accusatorial system of trial, the judge plays a passive role and often
exhibits his helplessness in checking a lengthy cross-examination of the victim girl
even when she is insulted and put to embarrassment by the defence lawyer, whose
only concern is acquittal of the accused. The trauma of rape is followed by the
trauma of narrating facts to the police during interrogation, which is again followed
by the trauma of undergoing an intimate medical examination, and culminates in
the trauma of courtroom when the victim faces cross-examination.

Lack of legal assistance

The victims of crime in general and sexual offences in particular do not get any
legal assistance at the cost of the state, because they have no separate entity as a
party in a criminal case instituted on the basis of the police report. The victims of
rape require legal assistance from the very beginning of reporting the incident to
the police station. The police officers, prosecutors and judges do not invoke the
provisions of the Legal Services Authorities Act 1987 in order to give free legal
assistance to the victims of rape from the time of reporting the case to the police
station till conclusion of trial in the court.

(3) Right of privacy of rape victims

The apex court has recently pointed out in Raja Gopal's case1 that a citizen
has a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing, education, etc., because the right to privacy is implicit
in the right to life and liberty guaranteed under article 21 of the Constitution.
Unfortunately, the privacy of the rape victim is violated during trial of a criminal
case, inspite of the existence of a specific provision in CrPC to conduct trial of rape
cases in-camera. That is why, the Supreme Court had to reiterate the law under
section 327 of CrPC in Gurmeet Singh's case.2 In this case, a young girl below 16
years of age was coming back from school after examination. She was studying in
the 10th class. Three persons Gurmeet Singh, Jagbir Singh and Ranjit Singh
pushed her inside an Ambassador car, took her to an unknown destination where
she was raped in a room. On the next day she was brought near her school, from
where she went to her maternal uncle's residence and narrated the entire incident
to her maternal grandmother. The incidence was reported to the police and a case

1. R. Raja Gopal v. State of Tamil Nadu, AIR 1995 SC 264.

2. State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384; 1996 (1) Crimes 37 (SC).

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was initiated under section 376, Indian Penal Code (IPC). The trial court disbe-
lieved the version regarding abduction and rape, because the victim could not
disclose the identity of the car by which she was taken away to the scene of the
crime. Accordingly, the accused persons were acquitted on the charge by the trial
court. The matter went up to the Supreme Court on appeal. The court not only
convicted the accused persons and sentenced each of them to undergo rigorous
imprisonment for 5 years and to pay a fine of Rs.5000 but also reiterated the law
laid down in section 327 of CrPC. It was held by the apex court that the trial of
rape cases invariably be done in-camera rather than in open court and that it would
be unlawful for any person to publish any matter in relation to the proceedings of
such cases except with the previous permission of the judges of the court as per
provisions of section 327 of CrPC. It is pertinent to point out that to publish the
identity of the victim in the print or electronic media during investigation and trial
of the case without written permission of the LO. or the victim or the judge as the
case may be, is an offence punishable with imprisonment upto 2 years under section
228, IPC.

Procedure of trial in foreign courts

Recently the U.S. Supreme Court3 had to examine the constitutional validity
of a Maryland statute, under which the child victim was permitted to give evidence
during trial in a room separated from the accused. The jury, judge and the accused
remained in the courtroom, while the prosecutor and the defence attorney examined
the child victim in another room, which was being broadcast to the courtroom on
closed circuit television. The judge, jury and the accused could not see the attor-
neys as the camera constantly focussed on the witness during her examination and
cross-examination, but the accused could communicate with his attorney by tele-
phone. This procedure of trial was challenged before the Supreme Court, because
the Sixth Amendment to the U.S. Constitution provides that the accused shall have
the right to be confronted with the witnesses against him in all criminal proceed-
ings. According to the court, the confrontation clause embodies a preference for,
but not an absolute guarantee of, face to face confrontation. The Supreme Court
upheld the above procedure of trial for the protection of the privacy of the victim.

(4) Scope of law reform

The analysis of both procedure and substantive law relating to rape and the
manner of proof of the charge indicates that the law hinges around corroboration,
consent and character of the victim. For successful prosecution of a rape case, it is
to be proved that the victim was not a consenting party to the sexual intercourse.
In other words, evidence is to be produced for struggle mark or resistance on the
body of the victim. It is very difficult to prove the resistance when the victim is
a married woman habituated to sexual intercourse. The character of the victim is
often made an issue in order to discredit her version before the court. Consent

3. See, P.M.Bakshi, "Child Victims and the process of trial", S.V.P. N.P.A. Magazine (July-
Dec. 1992).

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obtained by threat, inducement or fraud is not valid consent of the victim, but it
is very difficult to establish before the court that the consent of an adult married
woman is vitiated by fraud, inducement or threat. The theory of corroboration of
the statement of a victim of rape, which is merely a rule of prudence is crystallised
into a rule of law. In this connection it would be appropriate to point out the recent
dictum of the Indian Supreme Court in Gurmeet Singh's case4 where Justice
A.S.Anand (as he then was) has specifically laid down that corroborative evidence
is not an imperative component of judicial credence in every case of rape. "The
court should not cling to a fossil formula and insist upon corroboration even if
taken as a whole the case spoken of by the victim of rape, strikes the judicial mind
as probable."
There is ample scope of law reform to protect the victims of sexual offences
in general and the victims of rape in particular. Special courts presided over by
women judges may be constituted or as in USA the victims may be permitted to
give evidence in a room separated from the courtroom, while the fact of examina-
tion of the victim by the counsels in the presence of family members may be
broadcast to the courtroom on close circuit television. The Evidence Act can be
suitably amended in order to check prolix cross-examination of the victim and to
exclude any fact regarding past sexual activity of the victim. Judges of the subor-
dinate judiciary and the prosecutors may be sensitised to the need of evaluation
of evidence of the victims of rape as suggested by the Indian apex court, i.e., to
discard the theory of corroboration which is merely a rule of prudence, not a rule
of law.

(5) Witnesses as victims of criminal justice system

The witnesses including victims of crime are reluctant to cooperate with the
criminal justice system and actively associate themselves with the court proceedings
for many reasons. The witnesses summoned to the police station for interrogation
are hardly treated with dignity. Nor are they paid any allowance by way of
reimbursement of TA and DA as per dictum of section 160(2) of CrPC, It is
pertinent to point out that sometimes female witnesses are also called to the police
station for interrogation in violation of the provisions of section 160(1) of CrPC.
The witnesses also face a lot of inconvenience in the court for frequent adjournment
of cases, lack of basic amenities in the subordinate courts, non-payment of TA and
DA for attendance in court. The witnesses examined after a long lapse of 5 to 10
years of the incidence would be browbeaten either by the overzealous defence
counsel or declared hostile by the prosecution for not supporting the statement
recorded by the 10. A sample survey of 18 courts in T.N. in 1979 done on behalf
of the National Police Commission showed that out of 96815 witnesses, who
attended the courts, only 6697 received some meager allowance for travelling and
pocket expenses. A man going to the railway station or bus stand to catch a train
or to board a bus has to spend two hours or so, but he gets the facilities like drinking
water and a shed on his head. Unfortunately the witnesses, who are to wait for 5
to 6 hours in a court of law, are hardly provided any of these facilities, mainly due

4. Supra note 2.

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to the apathy of the government towards court administration. The witnesses have
to squat on the floor of the verandah or under the shade of a tree forgetting all
about their dignity. They have to suffer financial loss apart from harassment and
wastage of time, when they go either to the police station for interrogation or to
the court for giving evidence, inspite of the fact that they go to the P.S. or court
not for their own benefit, but to help the law enforcement agencies for better
administration of justice.

(6) Compensation to victims

(i) Object of compensation

Compensation means something given in recompense, i.e., equivalent ren-
dered. The object of compensation is not to give punishment for the wrong in-
flicted. It is neither a reward, nor a punishment. The sole purpose is to make good
the loss sustained by the victim or legal representatives of the deceased. The
compensation is calculated under two broad heads: (/) special damage or pecuniary
loss, i.e., the loss which can be calculated in terms of money, e.g., loss of earnings,
expenses for medical treatment, etc.; and (ii) general damage or non-pecuniary loss.
i.e., the loss which cannot be calculated in an objective manner in terms of money,
e.g., loss of amenities, pain and suffering, loss of expectation of life, etc.

(ii) Historical background

The provision for compensation to victims is a modern concept of criminal
jurisprudence, but in our country Manusmriti made provision for payment of
compensation to the victim of bodily injury to the extent required for treatment and
also for loss of property.5 The criminal justice system of the tribes also had the
uncodified law for payment of compensation to the victims of crime in various
ways.6 Under the Islamic law compensation could be paid by the wrongdoer to the
victim when so demanded by the victim or his heir as an alternative to retaliatory
killing even in a case of homicide.7

(Hi) Limited statutory provision

As the state fails to give proper protection to its citizens, it becomes the
bounden duty of the state to make good the loss suffered by the victims of crime.
Under the law of torts, a victim of crime is entitled to get compensation through
a regular civil proceeding, which is complicated and time consuming. Under
section 357(1) of CrPC the criminal court can pass the sentence and fine and the
court can give any portion of this fine amount to the victim as compensation, but
under section 357(3) of CrPC the criminal court can award unlimited amount of
compensation to the victim. The provision of section 357(3) of CrPC came up for
consideration before the Supreme Court in the case of Hari Kishan v. Sukhbir

5. Manusmriti, ch.8.
6. R. Deb, et al, "Pattern of Criminal Justice Among Some Tribes", 12 JILI 205 (1970).
7. M. Cheri Bassionni, The Islamic Criminal Justice System (1981).

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Singh} In this case, the accused assaulted the victim, who happened to be injured.
The convicts were extended the benefit of probation under section 360 of CrPC.
but no fine was imposed on the convicts. The latter went up to the Surpeme Court
which directed the convict to pay Rs.50,000 to the victim by way of compensation
under section 357(3) of CrPC. This provision is not ancillary to other provisions
of CrPC but in addition thereto. By this landmark judgment, the apex court directed
all the subordinate criminal courts to exercise the power of awarding compensation
to the victims of offences in such a liberal way, that they may not have to rush to
the civil courts for compensation.

(iv) Need for legislation

The limitation of the above provisions of law is that compensation cannot be
awarded by the court when the accused is acquitted on the charge, which is done
in about 93 per cent of the cases in India. The General Assembly of the United
Nations 9 has recommended payment of compensation to victims of crime by the
state when this is not fully available from the offender or other sources. The
legislators in India are not paying any heed to the crying needs of the victims of
crime. India has not made any legislation to give compensation to the victims when
the accused is acquitted of the charge by the criminal court, despite the obligation
to fulfil the terms and conditions of the International Covenant to which India is
a party. As a result, the victims of communal riots, dacoity, arson, rape, etc. are not
getting any compensation. Of course, the Supreme Court10 had directed the gov-
ernment to set up a Criminal Injuries Compensation Board on the model of its older
British counterpart for awarding compensation to victims of crime including sexual
offences and property offences. It is relevant to point out that legislation in respect
of victim compensation was introduced in New Zealand in 1963, in UK in 1964 and
in most of the states of USA in 1965. The Law Commission of India has mooted
the proposal to make an exhaustive amendment of the Code of Criminal Procedure
in order to implement various important decisions of the Supreme Court and
recommendations of the Law Commission of India, which include, inter alia,
constitution of a Compensation Board for payment of compensation to the victims
of crime. 1 '

(v) Innovative approach of apex court

The Supreme Court has devised a new method for the purpose of making
fundamental rights meaningful even to the victims of crime. In the case of Gudalure
M.J.Cherian12 a compensation of Rs.2,50,000 was awarded to the victims of rape

8. Hari Kishan v. Sukhbir Singh. AIR 1988 SC 2127.

9. 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders
held at Milan from 26 Aug. - 6 Sept. 1985 and adopted by General Assembly resolution 40/
34 dated 29 Nov. 1985.
10. The Hindustan Times, 19 Mar. 1995.
11. Questionnaire on Amendment of Code of Criminal Procedure 1973 circulated to alt Home
Secretaries of the States by Joint Secretary, Government of India, Ministry of Law, Justice and
Company Affairs on 6-12-1995.
12. Gudalure M.J. Cherian v. Union of India, 1995 SCC (Cr) 925.

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by the apex court by way of compensation. In this case, on the night between 12/
13 July 1990, at about 2 a.m., some miscreants entered the premises of St.Mary's
Convent School, Gazroula in UP and committed rape on Sister Tara and Sister
Roslit. The other sisters and maid servants were physically assaulted. The miscre-
ants ransacked the house and looted Rs. 1,11.000 by breaking the almirah. The cash
was kept for disbursing salaries of the staff on the next day. The incident was
reported to the Gazroula police station the next morning. The case was investigated
in a perfunctory manner and the chargesheet was filed by the local police against
four persons Iqbal and others. The case was brought to the notice of the Supreme
Court by way of a public interest litigation and the CBI was directed to investigate
the case afresh. This revealed that four persons implicated by the local police as
accused were innocent and that vital clues and evidence in the case were lost due
to perfunctory investigation on the part of SHO and medical officer of Moradabad
Hospital. In this case, the Supreme Court directed the government of UP to suspend
those police officers and medical officer with immediate effect and to initiate
disciplinary action for appropriate punishments under their relevant service rules,
and the State of UP was directed to pay Rs.2,50,000 as compensation to the victims
of rape and Rs.l lakh each to the victims of other crimes in the incident.

(vi) Interim compensation against private persons

The Supreme Court has enunciated the principle that fundamental rights can
be enforced even against private bodies and individuals in the case of Bodhi Satta
Goutam v. Subhra Chakraborty.^ Subhra, a student of the Baptist College of
Kohima filed a complaint in the Court of the First Class Judicial Magistrate,
Kohima, Nagaland alleging that Bodhi Sana Gautam, a lecturer of the Baptist
College used to visit her residence and that Gautam not only induced her to cohabit
with him by giving a false assurance of marriage, but also virtually went through
a certain marriage ceremony knowing the same to be fake, and that Gautam compelled
her to undergo abortion twice against her free will. The second time it was in a
nursing home at Dimapur where Gautam signed the consent paper by deliberately
mentioning his name as Vikas instead of Bodhisatta Gautam. Ultimately Gautam
resigned from his service as lecturer in the Baptist College, Kohima and joined as
lecturer in Cachaar College in Assam. In this case, the magistrate took cognisance
of the offence under sections 312/420/493/496/498 A of IPC and issued summons
to Bodhisatta Gautam for facing the trial. Gautam in the mean time moved an
application before the High Court for quashing the proceeding under section 482,
CrPC. The High Court at Gauhati rejected the application and thereafter Gautam
approached the Supreme Court by way of special leave petition in order to quash
the criminal proceeding initiated against him by Subhra. On consideration of the
facts and circumstances of the entire case, the Supreme Court not only dismissed
the appeal preferred by Gautam, but also issued a suo motu notice to him calling
upon him to show cause as to why he should not be asked to pay a reasonable
amount of compensation for maintenance of Subhra during the pendency of the
prosecution against him. Having heard both sides and on consideration of affidavit,

13. 1996 SCC (Cr) 133.

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the Supreme Court directed Gautam to pay Subhra Chakraborty a sum of Rs.1000
every month as interim compensation during the pendency of the criminal case in
the Court of the First Class Judicial Magistrate at Kohima, Nagaland. The logic
behind the order of interim compensation to Subhra is that Bodhisatta Gautam
violated her most cherished fundamental right to live with human dignity. This is
totally a new method of awarding compensation to the victim by the apex court.

IV Victims of law enforcement agency

(1) Principles for payment of compensation by state

The duty of the welfare state is to protect the fundamental rights of its citizens.
Any party aggrieved by the action of the state or its agencies may approach the
High Court under article 226 or the Supreme Court under article 32 of the Consti-
tution for enforcement of his fundamental rights and also for ancilliary reliefs.
Under the principles of tort, the master is liable for the acts of his servant so long
as the servant acts in discharge of the duty assigned to him by the master, which
is known as vicarious liability. Accordingly under the principles of vicarious
liability, the state is liable to pay compensation to the victims for its officers so
long as they act in discharge of their official duty. By virtue of the doctrine of
English law "King can do no wrong'1, the state is immune from liability to pay
compensation for any action or omission on the part of its officers who are
discharging the sovereign function of the state. The Supreme Court has held in
KasturilaVs case 14 that the state and its officers are immune from the liability to
pay compensation if the acts done by them are committed in discharge of sovereign
functions of the state. It is well-settled by various judicial pronouncements that,
(/) the functions discharged by the army or defence personnel in the war field, or
(ii) the acts of administering justice by the courts and tribunals, or (Hi) the acts of
arrest, search and seizure according to law by police, are instances of discharge of
duty assigned to the respective officers by delegation of the sovereign function of
the state. However, torture in police custody, atrocity in police lock up, illegal
detention in custody, cannot be characterised as official duty assigned to police
officers by delegation of sovereign power of the state.

(2) No sovereign immunity

The law that the state is immune from liability to pay compensation for the acts
and omissions of its officers when the action or omission is in discharge of official
duty assigned to the officers by delegation of sovereign power of the state, has been
modified by the Supreme Court,15 which has laid down that the doctrine of sov-
ereign immunity is applicable only on tortious acts of government servants, but the
same doctrine has no application when they have violated the fundamental right
of any individual. The defence of sovereign immunity is alien to the concept of
guarantee of fundamental rights. Now the law as laid down by the Supreme Court

14. Kasturilal Raiiaram Jain v. State of U.P., AIR 1965 SC 1039.

15. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

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is that the state is bound to pay compensation to the victim, who has suffered
damage in violation of his fundamental rights by the agency of the state, irrespec-
tive of whether the government servant acts in discharge of sovereign power of the
state. The following are the examples of a few cases where High Courts and the
Supreme Court directed the state governments to pay compensation to the victims
whose fundamental rights were violated by the police officers and jail authorities.

(3) Illegal detention in jail

Rudul Sah was kept in jail for a period of 14 years after his acquittal by court
on the ground that he was insane. He was directed to be released by the Supreme
Court. In addition the court awarded a compensation of Rs.35,000 to Rudul Sah,
The reason is that the right to life and liberty guaranteed under article 21 will be
denuded of its significant content if the power of court is limited to passing an order
of release from illegal detention.16

(4) Illegal confinement in police custody

Bhim Singh, an MLA of Jammu and Kashmir incurred the wrath of the political
party in power. They were bent upon preventing him from attending the session of
the Legislative Assembly to be held on 11 September 1985. He was arrested on the
intervening night between 9th and 10th September 1985 by SHOof Qazi Kund P.S.
on the allegation that a case under section 153.4 of Ranbir Penal Code was regis-
tered against him for delivering an inflammatory speech at a public meeting held
near Parade Ground, Jammu on 8 September 1985. He was not produced before the
magistrate till 13 September 1985. The wife of the MLA filed a writ peition before
the Supreme Court,
On enquiry, the Supreme Court held that Bhim Singh was illegally detained
by police personnel in collusion with the magistrate who ordered for remand
without production of the arrested person before him. The police authority violated
the fundamental right of MLA enshrined in articles 21 and 22(2) of the Constitu-
tion by acting in a mala fide way. As the responsibility could not be fixed on an
individual police officer, the court directed the State of J. and K. to pay a sum of
Rs.50,000 as compensation to Bhim Singh within two months from the date of the
order.17

(5) Illegal arrest

One Sukhchain Singh, son of Meja Singh, was arrested by Kashmir Singh, SI
of Police attached to P.S.Zira in the District of Ferojpur, Punjab. The allegations
were not spelt out at the time of the arrest. On the day when Meja Singh visited
P.S. he was told that his son would be released the next day. Even S.S.P. Ferojpur
could not give any satisfactory reply about the place of detention of Sukhchain
Singh, So, Meja Singh moved a writ petition before Punjab and Haryana High
Court.

16. Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

17. Bhim Singiu MLA v. State of J&K, 1986 AC.I 867 (SC).

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The High Court directed the District and Sessions Judge of Ferozpur to conduct
an inquiry as to whether Sukhchain Singh was arrested and taken away from his
residence by police authority. The allegation of Meja Singh about arrest and
detention of his son, Sukhchain by the police was established in the enquiry
conducted by D J .
The Punjab and Haryana High Court held that since it could not be ascertained
whether Sukhchain was dead or alive, an interim compensation of Rs.25,000 was
awarded. As the illegal arrest was done by Kashmir Singh, SI of police illegally
without any authorisation, not in discharge of, (/) the sovereign function of state,
and (ii) official duty, the government directed him to pay Rs.25,000 to Meja Singh,
the father of the detenue. 18

(6) Illegal use of handcuff

One Ravikant Patil was arrested and taken to the court of the magistrate from
lock-up for obtaining police remand. Patil was handcuffed and roped and paraded
through the streets and squares of Solapur city. He was surrounded by a large
number of policemen followed by a van of state reserve police which carried some
of its members. Nothing was on record to show that the accused was dangerous or
desperate or could escape from custody. The police officer who put on the hand-
cuffs in violation of the law enunciated by the Supreme Court in Prem Shankar
Shukla's case 18 " was held to have violated the fundamental right of the arrested
accused person guaranteed under article 21 of the Constitution. According to it,
life means life with dignity, and liberty means freedom from humiliation and
indignity at the hands of the authority to whom the custody of a person may pass
temporarily under the law of the land.
The Bombay High Court directed the police officer who arrested and put
handcuffs on the accused to pay Rs. 10,000 to the arrested person Patil within two
months and this fact would be recorded in his service book. However, on appeal
before the Supreme Court, the decision of payment of compensation was affirmed,
but the state of Maharashtra was directed to pay the compensation instead of
Prakash Chauhan, the Inspector of Police who could not be held personally liable
for violating the fundamental right of the accused, Ravikant Patil,19

(7) Death in police custody

Anthony Cardino, a store keeper in the Mental Hospital, Panaji, was arrested
by the police on the allegation of misappropriation of some hospital utensils and
plastic ware worth Rs.1500. He was arrested on 9 October 1979 and his wife was
told that his police remand was obtained till 12 October 1979. But on 10 October
1979 the magistrate rejected the prayer of. police remand and he was remanded to
judicial custody. He died in the police lock-up on 10 October 1979 due to torture
and atrocity of the police as alleged.

18. Meja Singh v. SHO Police Station, Zira, 1991 ACJ 439.
18A. Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.
19. Ravikant Patil v. D.G. Police, State of Maharashtra. 1990 ACJ 1060.

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The postmortem report revealed that death was due to 20 different types of
injuries suffered by the deceased. His wife and children started a suit for compen-
sation of Rs.2,00,000 against the state and its police officers. The trial court
dismissed the suit on the ground of sovereign immunity. The decision was chal-
lenged before the Bombay High Court on the ground that the state and its officers
had violated the provision of article 21 of the Constitution.
The Bombay High Court (Panaji Bench) held that the plea of sovereign immu-
nity was not available in case of torture or atrocity in police lock-up. So, the State
of Goa was directed to pay Rs.2,00,000 to the legal heirs of the deceased. 20

(8) Death in police outpost and dispersal of dead body

One Suman Behera, aged 22, son of Nilabati Behera was arrested by the police
on the allegation of theft and detained in the police outpost. On the next day his
dead body with multiple injuries was found on the railway track near Jaraikela
Railway Station. The allegation was that Suman received multiple injuries due to
physical torture in police lock-up and that he succumbed to the injuries. Thereafter
his body was removed to the railway track to give it the colour of suicide. The
defence version was that Suman managed to escape from policy custody and was
run over by a passing train.
The enquiry was conducted by the District Judge, Sundargarh in Orissa as per
order of the apex court. On the basis of the statement of witnesses of both sides,
coupled with the post-mortem report and report of the Regional Forensic Science
Laboratory, the D.J. opined that the death of Suman was not due to injuries
sustained by the train accident, but due to multiple injuries inflicted on him in
police lock-up. Torture and atrocity in police lock-up is against the fundamental
right guaranteed to the accused under article 21 of the Constitution. So the Su-
preme Court held that the mother of Suman was entitled to get compensation for
causing death of her son by the state for atrocity in police lock-up.
Suman was aged 22 and had a monthly income between Rs.1200 to Rs.1500.
The State of Orissa was directed to pay Rs. 1,50,000 as compensation to the mother
of the deceased Suman. Further direction was given to the state to fix responsibility
on the officer in causing the death of Suman in police lock-up and take appropriate
disciplinary action against him.21

(9) Brutal torture by police

Kamlesh Kumari used to live with her husband, Inder Singh and three children
in one room of a two storied building in Anand Parbat in 1974 as tenant. There was
a dispute over the ownership of the house. By successive transfer one Puran Chand
and his two sons claimed to be the owners. These owners had illegally evicted all
the tenants of the house by threat or otherwise except Kamlesh Kumari's family,
who brought a stay order from court against illegal eviction. One day the sons of
the landlord trespassed into the room of Kamlesh Kumari and hit her on the head
with a brick. The incident was reported to the P.S. but no action was taken by the

20. Mrs.Cardino v. Union of India, 1990 ACJ 804.

21. Supra note 15.

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police. On the next day one Lai Singh and Shyam Lai, two S.L of Police accom-
panied the sons of the landlord to the room of Kamlesh Kumari, dragged her out
of the room, threw out her utensils, etc. At that time, Naresh, the nine year old son
of Kamlesh protested and he was forcibly thrown away on the floor at a distance
of 8-9 feet by S.I. Lai Singh. Then Kamlesh Kumari was arrested and taken away
on the basis of a criminal case started by the landlord on a false allegation.
Subsequently, Naresh was hospitalised for treatment of injury on his head, but he
succumbed to the injury. The women's organisation named "SAHELI" took up the
matter to the Supreme Court under article 32 of the Constitution.
A criminal case was started for causing the death of Naresh and the investiga-
tion was started by one Inspector of the Crime Branch, Delhi. The Supreme Court
directed the Delhi Administration to pay Rs.75,000 to Kamlesh Kumari, the mother
of the deceased Naresh within one month.22

(10) Escape from police custody

One Vadivelu was arrested by the police for interrogation in the course of an
investigation of a double murder case, Vadivelu was not produced before the court
on the ground that he escaped from the custody of police and was absconding.
Lalitha, the wife, filed a writ petition before the Madras High Court for production
of Vadivelu. The police authority could not produce him before the court even after
three years of escape from custody. The emotional argument on behalf of the
petitioner was that the court should declare Lalitha as widow or sumangali, i.e.,
woman with her husband alive. The court could not so declare.
Vadivelu had a wife and four children. He used to earn Rs. 1500 per month. The
Madras High Court directed the State of Tamil Nadu to pay Rs.50,000 as compen-
sation to the wife and children of Vadivelu within six months.23

V Summary of problems and suggested remedies

(1) Grievances of victims in criminal justice system

The grievances of the victims in the criminal justice system can be summarised
as follows:
(i) Inadequacy of the law in allowing the victim to participate in the pros-
ecution in a criminal case instituted on a police report.
(ii) Failure on the part of the police and prosecution to keep the victims
informed about the progress of the case.
(Hi) Inconvenience of the victim during interrogation by the police, and
lengthy court proceedings.
(iv) Want of prompt medical assistance to the victims of body offences and
victims of accidents.
(v) Want of legal assistance to the victims of sexual offences.

22. SAHELI. a Women Resources Centre v, Commissioner of Police. Delhi. (1990) 1 SCJ 390.
23. Lalitha v. Director General of Police, 1989 ACJ 655.

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1999] PERSPECTIVES IN VICTIMOLOGY 91

(vi) Lack of protection when the victims are threatened and vilified by the
offenders who are released on bail during investigation or trial of the
cases.
(vii) Protection of privacy of the rape victims when the case passes through the
different stages in the criminal justice system,
(viii) Failure to get back the property seized or recovered by the police during
investigation of cases.

(2) Suggested remedies

As the treatment is required after diagnosis of the disease, an innovative
approach is necessary on the part of each segment of the criminal justice system
for restitution and rehabilitation of the victims. The following remedies may be
considered to remove the plight of the victims of crimes:

(i) Participation of victims

The Code of Criminal Procedure can be amended to make statutory provision
for participation of the victim during the stage of investigation and trial of the
criminal cases instituted on the basis of the police report. By way of amendment
of CrPC the right can be conferred on the victim to engage a lawyer of his choice,
whose opinion will prevail over the opinion of the public prosecutor in case of
conflict and also to prefer an appeal against the order of acquittal of the accused
in the cases instituted on the basis of the police report.

(ii) 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 them relating
to the commission of the offence reported to the police station as per provisions
of section 173(2)(ii) of the Code of Criminal Procedure 1973. Nor is there any
statutory provision to inform the victim of the progress of the case during trial by
the prosecution. The police should inform the victim about the action taken by it
with regard to the offence reported to the police station. It is pertinent to point out
the innovative method of giving information to the victim introduced by the apex
court before accepting the final report submitted by the police before the court. The
Supreme Court24 has directed the judicial magistrates to give an opportunity to the
victim (informant) to be acquainted with the result of police investigation and also
to raise objection, if any, before discharging the accused on the basis of the final
report submitted by the police under section 173 of CrPC. The police and prosecu-
tion may also follow such procedure to inform the victim of the progress of the case
during investigation and trial respectively.

(Hi) Treatment of victims as witnesses

Interrogation of the victims in general and victims of sexual offences in

24. Bhagwant v. Commissioner of Police. 1985 CrU 1521; AIR 1985 SC 1285.

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particular should be done by the police in a dignified manner and by following the
procedure of law, i.e., without calling the female victims and male victims below
the age of 15 years to the police station for the purpose of any interrogation as laid
down in section 160(1) of CrPC. The government should provide sufficient funds
to the police and court administration for payment of travelling allowance, pocket
allowance and professional loss to the victims appearing as witnesses whenever
called to the police station or court. The magistrates and judges should be trained
on the art of court management and controlling lengthy cross examination by way
of rejecting irrelevant questions.

(iv) Medical assistance

The victims of body offences and accidents need immediate medical assis-
tance. In a public interest litigation,25 the question arose whether every member of
the medical profession has the obligation to extend his services with due expertise
for protecting life. In this case, the doctor avoided his duty to help an injured
scooterist on the plea that it was a medico-legal case and ultimately the injured
succumbed to the injuries before getting medical assistance in another hospital. On
the consent of all concerned in the case, the Supreme Court has laid down that
whenever a man of medical profession is approached for professional assistance, it
is the obligation of each member of the profession to render all possible help and
if the case needs better assistance he must make all efforts to ensure that the injured
reaches the proper expert as early as possible. The practice of certain government
institutions and private practitioners to refuse even the primary medical aid to the
patient and refer them to other hospitals, because it is a medico-legal case, is
violative of the Code of Medical Ethics framed under section 33 of the Indian
Medical Council Act 1956. The member of the medical profession must be per-
suaded and motivated to follow the law of the land laid down by the apex court.

(v) Legal assistance to rape victims

A public interest litigation26 was filed by the Delhi Domestic Working Women's
Forum to espouse the pathetic plight of four domestic servants who were subjected
to indecent sexual assault by seven army personnel. In this case the Supreme Court
gave the following directions to the government for assistance of the victims of
rape:
(0 The complainants of sexual assault cases should be provided legal repre-
sentation. It is important to have someone who is well acquainted with the criminal
justice system. The role of the victim's advocate would be not only 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 also to provide her with guidance as to
how she might obtain help of a different nature from other agencies, for example,
mind counselling or medical assistance. It is important to secure continuity of

25. Pt.Paramanand Katara v. Union of India, AIR 1989 SC 2039.

26. Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14: 1995 SCC
(Cr) 7.

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1999] PERSPECTIVES IN VICTIMOLOGY 93

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.
(ii) Legal assistance will have to be provided at the police station since the
victim of sexual assault might very well be in a distressed state upon arrival at the
police station. The guidance and support of a lawyer at this stage and whilst she
was being questioned would be of great assistance to her.
(Hi) The police should be under a duty to inform the victim of her right to
get free legal assistance before any questions were asked of her and the police
report should state that the victim was so informed.
(iv) A list of advocates willing to act in these cases should be kept at the police
station for the victims, who did not have a particular lawyer in mind or whose own
lawyer was unavailable.
(v) The advocate should be appointed by the court, upon application by the
police at the earliest convenient moment, but in order to ensure that victims were
questioned without undue delay, advocates would be authorised to act at the police
station before leave of the court was sought or obtained.
The above scheme requires immediate implementation by the government. 26

(vi) Security by rejection of bail

The provision for anticipatory bail should be deleted from the Code by way
of amendment, because this provision is being misused by the rich people or at least
the provision for anticipatory bail should be for the limited period of one or two
months. The courts must be very cautious before granting bail to the accused, who
are influential members of the society and who may abscond during trial. The law
should be amended to give victims the right to approach the court for cancellation
of bail of the accused, who give out threat to the victims during pendency of the
case in court.

(vii) Protection of privacy of rape victims

The women police officers may take up the work of interrogation of victims
of sexual offences in general and rape in particular. Where they are not available,
the victims of rape may be interrogated in their residence in the presence of friends
and relatives. Similarly, medical examination of the victims of rape should be done
in an atmosphere where the victim is made to relax and to actively participate and
cooperate during medical examination of the intimate parts of the body. Female
judges may preside over the courts constituted for the purpose of trial of sexual
offences. Lady public prosecutors may also be engaged to conduct the trial of rape
cases. The provision for in-camera trial must invariably be adopted by presiding
officers of the courts where sexual offences are tried. A special court for the purpose
may be constituted by the government for protection of privacy of the victims of
sexual offences.

(viii) Return of property

Many a time, the victims of property offences do not get back their property
even when the same is recovered by the police during investigation. The procedure

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for return of property is laid down in the Code of Criminal Procedure.27 The fact
of congested Malkhana in the police station and court indicates that the properties
seized by the police during investigation are not returned to the victims for reasons
like lack of awareness on the part of victims of their rights or lack of initiative on
the part of the investigating officers and the public prosecutors. Even when the
orders are passed by the courts suo motu for disposal of property on conclusion of
trial, the order is not communicated to the respective police stations by the pros-
ecutor for proper compliance. The victims must be made aware of their rights to get
the property back not only on completion of trial of the criminal case, but also
during the stage of investigation and during pendency of the trial of the criminal
case in the court.

(ix) Protection of human rights by payment of compensation

Immediate legislation for awarding compensation to the victims of crime by
constituting a Criminal Injuries Compensation Board, is required to fulfill the
obligation of India to the International Covenant on Human Rights. The sentence
of fine amount prescribed in IPC and enacted more than a century ago and also in
many special statutes like M.V. Act, State Excise Act, Municipal Acts, etc., may
be revised and increased suitably and the fine amount realised by courts can be
diverted to the fund from which compensation can be awarded to the victims of
crime.
In the case of Delhi Domestic Working Women's Forum,2S the Supreme Court
directed the Government of India to set up a Criminal Injuries Compensation Board
in conformity with the Directive Principles contained under article 38(1) of the
Constitution of India. According to the Supreme Court, compensation for rape
victims must be awarded by the criminal court on conviction of the offender and
by the Criminal Injuries Compensation Board when the case does not end in
conviction. This Board will take into account the pain, suffering and shock as well
as loss of earnings by the victims of crime in fixing the amount of compensation.
The implementation of the above instruction of the Supreme Court by the Govern-
ment is the need of the hour.

R.K. Bag*

27. Ch. XXXIV, CrPC 1973.

28. Supra note 26.
*Asst. Director (IAW), SVP, NPA, Hyderabad.

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