DR RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

CRIMINAL PROCEDURE CODE

PROJECT

ON THE TOPIC-

VICTIMS IN THE INDIAN CRIMINAL JUSTICE SYSTEM

SUBMITTED BY- SUBMITTED TO-

AKSHAT GOLIA DR PREM KUMAR GAUTAM
170101018 ASSISTANT PROFESSOR (LAW)
V SEMESTER RMLNLU
TABLE OF CONTENTS

Table of Contents ....................................................................................................................... 2

Introduction ................................................................................................................................ 3

Victim-Defined ...................................................................................................................... 3

Overview of the Indian Criminal Justice System ...................................................................... 4

Criminal Procedure Code and Victims ...................................................................................... 5

Victims of Crime.................................................................................................................... 5

Special Importance of Criminal Procedure ............................................................................ 6

Investigation of Offences and the Role of Victim ................................................................. 6

Trial Procedure and role of Victim ........................................................................................ 8

Compensation to Victims of Crimes ...................................................................................... 9

Pronouncement of Judgment and role of Victim ................................................................. 11

Conclusion ............................................................................................................................... 12

Bibliography ............................................................................................................................ 13
INTRODUCTION
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 essence of criminal justice in those olden
days. 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 victimised the accused has been granted certain basic rights
and privileges to prvoe 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.

The justice to the victim from the criminal justice point of view is an area of utmost important.
The plight of victims of crime has always been of interest to society. This is evidenced by the
importance given to the victim by the media, which attempts to highlight the trauma that the
victim suffers, sensationalizing during the process of criminal justice system in India. However,
when one examines the role of the victim in the criminal justice system, especially in Countries
that follow the adversarial system, it appears that the society seeks to sympathize with the
victim, but does not consider it important enough to give the victim a role in the prosecution
of the crime committed against him or her.

VICTIM-DEFINED
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. Black’s law dictionary defines ‘victim’ as “The person
who is the object of crime or tort, as the victim of a robbery is the person robbed". Furthermore,
a victim is defined in Cr.P.C. under section 2 (wa) as a person who has suffered any loss or
injury caused by reason of the act or omission for which the accused person has been charged
and the expression “victim” includes his or her guardian or legal heir.
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. 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 studies of the existing conditions of the
criminal justice administration and introduced many reforms to revamp the whole system. The
Britishers introduced reforms wherever necessary. They adopted new principles by modifying
the existing laws wherever required 124 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 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.

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 them 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. 125 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 working of 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.
CRIMINAL PROCEDURE CODE AND VICTIMS
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. 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 Criminal Procedure (CrPC) is the main legislation on procedure for
administration of substantive criminal law in India. 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. 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.

VICTIMS OF CRIME
The victims of crime are those who have already suffered harm or are perhaps still suffering,
directly or indirectly as a consequence of crimes having been committed. The immediate family
or dependents of direct victims, who are adversely affected, are also included within the
meaning of the term “victims”. The Code also defines the term “victim”30, means a person
who has suffered any loss or injury caused by reason of the act or omission for which the
accused person has been charged and the expression “victim” includes his or her guardian or
legal heir. This definition inserted by the Code of Criminal Procedure (Amendment) Act, 2008.
SPECIAL IMPORTANCE OF CRIMINAL PROCEDURE
The Code tries to take utmost precaution to protect the rights of accused person to assure him
fair trial in accordance to principles of natural justice and on another hand to protect the rights
of victim, the person who suffered with the hands of accused person. The victim should get the
justice within the reasonable time to avoid any kind of delay either in case of investigation or
in trial and to ensure fair deal to him including the poorer sections of the community.

Criminal justice system in India is not only a crucial component of the Government but it is
also an important instrumentality of the state for preservation of peace in the society and
protection of the rights of the people. The state acts as parent patriae or guardian of the people
to take care of their life and property. In India whenever any crime done, it is to be presumed
that, it is the offence against state or whole society, so state takes the initiative to punish the
wrongdoer. Under Indian criminal justice system, once the case is filed by victim that case
becomes state versus accused and 143 the real sufferer i.e. victim remain as spectator or a mere
witness of that criminal case.

The Code of Criminal Procedure deals, at first, with the pre-trial procedures. The police force
collects factual information regarding commission of offence, arrests the offenders and
examines them. The most important and pivotal part of criminal procedure is trial procedure.
The trial procedure consists of cognizance of offences, initiation of proceedings, attributes of
fair trial and other general provisions regarding trials as trial of summons and summary trials.
When the trial is concluded and the accused is found guilty or innocent, the trial procedure in
fact comes to an end with judgment of declaring the punishment and hence all these procedural
segments are considered as trial procedure. After judgment, the convicted party may apply for
the review or revision of the decisions of trial court. They may appeal to the higher courts for
redressal. At the end, the executive Court executes the final decision of the court. All these
processes are considered as ‘extended trial procedure.’

INVESTIGATION OF OFFENCES AND THE ROLE OF VICTIM

The victim has right to file complaint in police station or before court. The Code makes such
provision to have access to raise the voice against any offence committed against him. Once
case is registered, the role of police as investigating machinery is important one as they start
the investigation, collect the evidence to prove the case against accused. The Code, however,
does not contemplate the use of the police in respect of investigation into each and every
offence. The Code has classified all offences into two categories i.e. cognizable and non –
cognizable.
In case of cognizable offence, a police officer can arrest the alleged culprit without warrant and
can investigate into such a case without any orders or directions from a magistrate. The law not
only allows the police officers to wield these powers but also enjoins them to exercise the same
in respect of a cognizable case. In case of a cognizable offence, it is the responsibility of the
State to bring the offender to justice. The same cannot be held true for non-congizable offences
since they are considered more in the nature of private wrongs and therefore the collection of
evidence and the prosecution of the offender are left to the initiative and efforts of private
citizens.

Two steps are necessary in the process of investigation, viz. discovery and arrest of the
suspected offender, and the search of places and seizure of things considered necessary for the
investigation, inquiry or trial. During the process of investigation, the victim of crime may ask
to remain present as witness as the police officer has such power. According to Section 160(1),
an investigating police officer can by order require the attendance before himself of any person,
however a person below fifteen years of age or a woman shall not be required to attend any
place other than the place in which such person or woman resides. This provision is intended
to give special protection to children and women against the probable indignities and
inconveniences that might be caused to them by the abuse of police powers under Section
160(1). Hence the victim of crime gives necessary information to police officer to proceed the
matter.

The police have power to examine the witnesses as the Sections 161 and 162 dealing with the
oral examination of witnesses by the police and the record to be made of their statements. Here
the victim play a vital role to give necessary information in his individual capacity or to act as
a witness though he is not directly involved in the process of investigation as he is restricted
mere as a witness in the entire process.

One more important protection given to the victim of offence of rape as such victim should be
medically examined by registered medical practioner employed in a hospital run by the
Government or a local authority and in the absence of such a practitioner, with the consent of
such woman or of a person competent to give such consent on her behalf and such woman shall
be sent to such registered medical practitioner within twenty-four hours from the time of
receiving of the information relating to the commission of such offence, this provision is
inserted by way of the Code of Criminal Procedure (Amendment) Act,2005.The reason to insert
such provision in the Code is only to protect the privacy and dignity of victims of rape,
otherwise it is the clear violation of Article 21 of Indian Constitution as right to privacy and
dignity which flows from right to life and personal liberty.

TRIAL PROCEDURE AND ROLE OF VICTIM

The system of criminal trial envisaged by the Code is the adversary system based on the
accusatorial method. In this system the prosecutor representing the state (or the people) accuses
the defendant (the accused person) of the commission of some crime and the law requires him
to prove his case beyond reasonable doubt. The law also provides fair opportunity to the
accused person to defend himself. The judge more or less is, to work as an umpire between the
two contestants. These are the features of Indian criminal justice system, where the victim is
represented by prosecution lawyer and for accused, the defence lawyer is there to defend him
and the judge acts as umpire to decide the case.

The trial is conducted in an open court and in certain special circumstances such as in cases of
rape, the proceeding should be in camera54 and further it states that the proceeding should be
conducted by woman Judge or Magistrate and most important thing is that the name and
address should be kept confidential as per section 327 (2) of the act.

Indian criminal justice system follows the principles off air trial and presumption of innocence
also enshrined in the Universal Declaration of Human Rights The burden shifts on part of the
prosecutor to prove that the accused person is guilty and that to beyond all reasonable doubt.
Every accused person is innocent until it proved to be guilty, it is the cardinal principle of
criminal justice system and that is the reason it is the duty of prosecution lawyer to prove how
accused is guilty. Hence the accused person enjoys all the protection including constitutional
protection in the form of fundamental rights to prove his innocence but at another side the real
sufferer i.e. victim remains neglected under the proceeding.

Prosecution lawyer acts on behalf of victim to punish the accused but sometimes victim may
feel the prosecution lawyer is not competent one to prove the case, he has right to engage a
private lawyer to assist the prosecution. But the power of such private lawyer is limited one as
to submit written arguments after the evidence is closed in the case, with the permission of
court as per section 301(2) of CrPC. A proviso has been added to Section 24(8) whereby the
victim is enabling to engage an advocate of his choice to assist the public prosecutor by way
of an amendment, 2008. Before the amendment, it was the Central Government or the State
Government who may appoint a Special Public Prosecutor for any case or class of cases.
Under certain circumstances, the court may allow the compounding of offences and to drop the
criminal proceedings if there is a settlement between the accused person and the victim of the
crime. The general scheme for the compounding of offences has been given under section 320
of the Code. The complainant or the victim has also a right to withdraw the complaint with the
permission of the court as per section 257.

During the intermediate procedure of trial, the accused has right to move an application for bail
and he may get the bail during the pendency of trial. The victim of crime has right to resist such
bail by way of an application under Section 439 (2) of Code as there is no absolute bar to move
an application for cancellation of bail.

COMPENSATION TO VICTIMS OF CRIMES

A comprehensive provision for compensation to the victims of crime has been provided in
Section 357 of the Code of Criminal Procedure. According to Section 357 sub-section (1) and
sub-section (3), the court may award compensation to victims of crime at the time of passing
of the judgment, if it considers appropriate in a particular case in the interest of justice. Under
Section 357, CrPC the trial court and the appellate courts (while exercising revisional powers)
are competent to award compensation to victims of crime only after the trial and conclusion of
guilt of the accused.

Sub-section (1) of Section 357 of the CrPC empowers the court to award compensation to the
victims of crime out of the fine in the following four cases, namely first, meeting proper
expenses of prosecution; secondly, compensation to a person (or his heirs) for the loss or injury
caused by the offence when he can recover compensation in a civil court; thirdly, compensation
to persons entitled to damages under the Fatal Accidents Act, 1855; and fourthly, compensation
to a bona fide purchaser of property which being the subject of theft, criminal misappropriation,
cheating, etc. is ordered to be restored to the person entitled to it. Compensation under sub-
section (1) can be ordered only where the court imposes a fine and amount of compensation is
limited to the amount of fine. No expenses or compensation can be ordered, if no fine has been
162 imposed or when a person is dealt with under Section 360 of the CrPC i.e. when a person
is released on probation of good conduct or after admonition and fine is imposed.

According to sub-section (3) of Section 357, the court is empowered to award compensation
for loss or injury suffered by a person, even in cases where fine does not form a part of a
sentence.
The provision of compensation granted under sub-section (3) of Section 357 is quite liberal
and without any restrictions. But it will be noticed that the liberal provisions of sub-section (3)
are applicable only if a sentence of fine is not imposed. If the sentence of fine is imposed,
compensation can be ordered to be paid only out of the amount of fine as mentioned in sub-
section (1) of Section 357.The object of Section 357 (3) is to provide compensation payable to
the persons who are entitled to recover damages from the person sentenced even though fine
does not form part of the sentence.

However, it is pertinent to note that the trial courts have seldom resorted to the powers
conferred on them under section 357, CrPC liberally. Perhaps taking note of the indifferent
attitude of subordinate courts, the Apex Court in the Hari Krishna and State of Haryana v.
Sukhbir Singh1, directed the attention of all courts to exercise the provisions under Section 357
of CrPC liberally and to award adequate compensation to the victim, particularly when an
accused is released on admonition, probation or when the parties enter into a compromise. But
at the same time the Court should take precaution that, the compensation must be reasonable,
fair and just, depending upon the facts and circumstances of each case. The quantum of
compensation may be determined by taking into consideration the nature of crime, the veracity
of the claim and the ability of the accused to pay.

The distinction between ‘fine’ under Section 357(1) and ‘compensation’ under Section 357(3)
came to be examined in K. A. Abbas v. Sabu Joseph2. The question was whether in default of
payment of compensation ordered under Section 357(3), a default sentence can be imposed.
Though fine and compensation are distinct it is a fact that they can be recovered as fine.

The accused should be convicted to impose the fine or to award the compensation and another
thing is that his ability to pay compensation is also taken into consideration. But some time the
accused is not traced or identified or he may be acquitted or discharged and also he may be
poor, not able to pay the compensation, under such circumstances there are chances that the
victim should be suffered. By taking all these points into consideration the Government takes
the initiative to introduce the victim compensation scheme through Code of Criminal Procedure
(Amendment) Act, 2008. The State or the District Legal Services Authority has power to order
for immediate first aid facility or medical benefits to be made available free of cost to alleviate
the suffering of the victim.

1
AIR 1988 SC 2127.
2
(2010) 6 SCC 230.
PRONOUNCEMENT OF JUDGMENT AND ROLE OF VICTIM
This is one of the important stage of criminal justice system where the competent court declares
its judgment after hearing both the parties. At this stage the court will either convict or acquit
the accused by following all the provisions regarding the delivery and pronouncement of the
judgment.

If the judge convicts the accused person, he is required to pass sentence on him according to
law. However, considering the character of the offender, the nature of the offence and the
circumstances of the case, the judge may instead of passing the sentence, decide to release the
offender on probation of good conduct under section 360.

After the accused is found guilty and an order of conviction is recorded by the court, a separate
and specific stage of trial has been provided by Section 235(2) whereby the court is required
to hear the accused on the question of sentence. It is the bounden duty of the court to cast aside
the formalities of the court scene and approach the question of sentence from broad sociological
point of view.

When we talk about the right to appeal, this right given to the accused or the state to prefer an
appeal against the order of court and the victim don’t have such right to prefer an appeal against
the order of court. Section 372 lays down the general principle that no appeal shall lie from any
judgment or order of a criminal court except as provided by the Code or by any other law which
authorizes an appeal. The right to appeal is a statutory right and such right is restricted to
accused or State, there is no concern for victim. But recently such right is conferred on victim
to file an appeal in the Appellate Court where such appeal ordinarily lies against any order of
a criminal court acquitting the accused or convicting him for a lesser offence or the imposition
of inadequate compensation. Ultimately we can say that this provision gives the right to victim
to prefer an appeal against any adverse order passed by the trial court.

After analysing various provisions it is clear that the provisions are not sufficient to protect the
interest of victim rather we may say that these provisions are more accused oriented to protect
his interest. So it is essential one to have a balance to protect the interest of both i.e. victim and
accused.
CONCLUSION
In India on one hand, an accused is treated as a privileged person and is provided with all
possible help including a defence lawyer and that too at the expense of State. After his
conviction, stress is laid on reformation and humane treatment to offenders. On the other hand
it is strange to see that the State, which seeks retribution in the place of victim for the
maintenance of law and order in the society, forgets about the fear, trauma and hardships, which
a victim undergoes after crime. In India there are no provisions in the existing law to help and
support the victim or allow him any participation in the enquiry or investigation of crime. The
investigation process is exclusively a police function and victim has a role only if the police
consider it necessary. In fact, assistance of the victim might help the police in the process of
investigation. After the commission of the crime against him and till the actual trial begins in
court, he is at the mercy of the State and the society. The victim requires greater help and
support soon after commission of crime. At that initial stage the victim needs medical
treatment, psychological support and legal aid.

The victim does not get any information about the progress of case and he also doesn’t have
any right to participate in the prosecution as the prosecutor appointed by the State is the proper
authority to plead on behalf of the victim. The victim does not get fair chance in the existing
criminal justice system as it is the prosecution agency who is authorized to plead on his behalf.
This action ultimately hampers his personal interest in the prosecution of the case. In a way
even if he desires or intend he cannot play a lead role in the prosecution. Somehow his role is
subsidiary and subservient to the prosecution agency.

Dispensing justice to victims of crime cannot any longer be ignored. The introduction of more
victim rights will encourage victim participation and thus victim involvement can help to
restore a sense of control and enhance their faith in the criminal justice system. So the time has
come where consideration must, must and must be given to the victim of crime - to the one
who suffers because of crime.
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