VICTIM IN CRIMINAL JUSTICE SYSTEM

INTRODUCTION
The purpose of criminal justice system is to protect the rights of individuals against the
intentional invasion of criminals who violate the basic norms of the society. In a modern welfare
State this protection is sought to be achieved and ensured by punishing the accused in
accordance with the provisions of law. The fair trial is the basic principle of our criminal justice
system and all stages of trial confer certain rights and privileges to accused of crime. In case the
accused is found guilty he is punished and kept in prison with an object of reforming him. In
various judgments, the Indian judiciary directed to State authorities to provide all necessary
facilities and ensure that human rights of accused are not violated. However, on another hand,
the criminal justice system does not take care of victim of crime. The role of victim of crime in
our criminal justice system, which follows the adversarial system to criminal justice system, is
restricted to that of a witness in the prosecution of an offence.

The poor victims of crime become the neglected object and subject under the criminal justice
system. The impact of the criminal justice system on victims is characterized as “the second

wound”1. In fact, it is a short coming of our criminal justice system that the victims of crime do
not attract due attention. Perhaps the criminal justice system is arbitrary and operates to the
disadvantage of the victim. Krishna Iyer, J. in Rattan Singh v. State of Punjab1, aptly
highlighting the apathy of law to a victim of crime, observed: “It is a weakness of our
jurisprudence that victims of crime and the distress of the dependents of the victim do not attract
the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law.
This is the deficiency, which must be rectified by the legislature.” The criminal justice system is
excessively loaded in favour of the accused. The main principle on which the system of legal
jurisprudence is based is to let ninety nine persons get away free than to have even one innocent
man punished. This tenet, while preventing injustice to one innocent, denies injustice to ninety
nine victims of crime.

1
(1979) 4 SCC 719
 VICTIM’S POSITION IN OTHER COUNTRIES

BABYLONIC LAWS:
The Code of Hammurabi is considered one of the first known attempts to establish a
written code of ‘Conduct’. Babylon ruled by King Hammurabi (1792-1750 B.C.) was considered
to be the commercial center of the civilized world and laid its fortunes in trade and other
business ventures. The Hammurabi Code provided basis for order and certainty essential for
commerce. The Code established rules addressing the crimes like theft, sexual relationships,
interpersonal violence etc. Blood feuds were replaced with a sanction system sanctioned and
controlled by the state.

The Code was divided into five sections

1. A penal or code of laws
2. A manual of instruction for judges, police officers, and witnesses
3. A handbook of rights and duties of husbands, wives, and children
4. A set of regulations establishing wages and prices
5. A code of ethics for merchants, doctors, and officials2

The code established certain the obligations and objectives for the citizens of Babylon to follow
which were as under:
1. An assertion of power of the state. This was the beginning the state administrated punishment.
The blood feuds previously occurred between the private citizens was barred under the Code.
2. Protection of the weaker from the stronger. Widows are to be protected from those who might
exploit them. Old parents were protected from their sons who would disown them. Lesser
officials were protected from higher ones.
3. Restoration of equity between the offender and the victim. The victim was to be as whole as
possible, and in turn, he or she forgave vengeance against the offender.3

The Babylonian Code of Hammurabi4 was instituted by the king of ancient Babylonia. It is four
2
Masters and Roberson, Inside Criminology, (Prentice Hall, Englewood Cliffs NJ,1985)
3
Scott Mire, Cliff Roberson, The Study of Violent Crime: Its Correlates and Concerns, (New
York, CRC Press, 2011), p. 200
4
Babylonian code of Hammurabi : Hammurabi, the king of Babylonia, who died 175 BC (1792-
thousand year old and has been oldest legal code. It is considered as first Code which has been
most generous in awarding compensation to the victims. For the code, it was the victim first than
the offender. The amount of restitution varied in certain theft cases, whether the stolen property
was recovered or not. Thus, (1) the theft of goods while they were being transported was
punishable by a five-fold restitution, (2) the embezzlement of merchant money by one of his
employees required a three fold payment; and stealing from priesthood of state, a more serious
offence, could only be repaid by the death of the offender as punishment. If a thief was not
apprehended, even then the Babylonian state restored the property to the victim, provided the
victim had itemized his property in the presence of God.5

These principles had been highlighted in the following quotation, If the brigand has not been
taken, the man plundered shall claim before God what he has lost; and the city and sheriff in
whose land and boundary the theft has taken place shall restore to him all that he has lost. If a
life, the city and sheriff shall pay one mina of silver to his people. 6 Further, these principles were
recognized in the Code. If a man commits robbery and was caught; he shall be put to death. 7 If he
was not caught, the victim had to declare the list of the properties before a god, and the mayor of
the city or the district in whose territorial jurisdiction the robbery had taken place, shall replace
those properties to the victim.8 If victim was killed during the crime, again the mayor of the city
or the district had to pay monetary compensation which is equal to one munch of silver to the
kins of the victim.9However, the compensation under the Code for different crimes was awarded
according to the social status of the victim. For example, if a criminal blinded a slave, the
amount of compensation was half a mina of silver. If a commoner suffered a similar injury
received an extra mina. If the same crime was committed against an aristocrat, the offender
himself was blinded in one eye.10
Restitution and vengeance were the themes of punishment. It provided that if a thief was unable
to afford compensation to victim, he himself becomes the property of the victim and the victim
50), known for code of laws, once thought to be oldest existing. Babylonia, the ancient country
in the valley of the lower Euphrates and the Tigris.
5
JL Barke : We Are All Victims, (London, Peel Press, 1978).
6
Chilperic Edwards : The Hammurabi Code (New York, Port Washington 1971) p 31.
7
Section 22 of Hammurabi Code
8
Section 23 of Hammurabi Code
9
Section 24 of Hammurabi Code
10
Das.B.Bharath, Victims in the Criminal Justice System (New Delhi, APH Publishing House
Crpn.1997) p 40
had all the right to sell him as slave. . The victim could keep the proceeds of such sale. Theft was
seriously dealt, by imposing a severe burden of restitution on the offender by compelling him to
pay four of five times of the stolen property. Although the compensation was one of the most
important themes under Hammurabi Code, yet the restitution by the criminal to victim remained
a prime focus in ancient laws.

VICTIM’S POSITION IN ROMAN, GREEK AND CHRISTIAN CODES

Law of Torts was the penal law of these codes in the ancient communities, not the law of crimes.
The injured would proceed with a civil action against the wrongdoer and recover the damages
in the form of money. Hence, under Roman law, many crimes such as theft, assault, robbery,
trespass were treated as civil wrongs. “All alike gave arise to an obligation…and were all
required to make a payment of money.”11 In early times of Rome, Greek, and Anglo Saxon, the
state used to take a share in the restitution awarded to the victim as the fair price of its time and
trouble. In spite of the fairly close relationship between ancient Roman criminal and civil law,
the reliable information about the position of victim and restitution to him was not found so
easily. The Law of Twelve Tables which codified the Roman Law written by Ten
Commissioners in 451 B.C. laid down, “When anyone accuses and convicts another of theft
which is not manifest, and no stolen property is found, judgment shall be rendered to compel the
thief to pay double the value of what was stole12. In certain cases the kinship was exposed to
revenge of the victim. In the cases of slander too, the offender had to pay the compensation. The
amount to be paid was decided by the magistrate according to the status of victim, his
relationship with the offender, the gravity of the act of slander and the place where it was
committed.13 Though the early instances of compensation to the victims were very irregular and
do not offer any clear picture, but signified that the compensation was the sole remedy for the
victim.
For example, Homer an epic poet during 9th and 8th century BC refers death fine for more than

11
Henry S. Maine : Ancient Law, (Oxford, Oxford Library Press, 1946 )
12
Law VIII… Law of the Twelve Tables
13
Das B. Bharath, Victims in Criminal Justice System, (New Delhi, APH Publishing Crpn,1997)
at p 41
once14 in his ninth book of Iliad15. Criminal jurisprudence developed when “the state conceived
itself to be wronged, and the peculiar assembly struck at the offender.” 16. Sir Henry Maine says
that the church, in an attempt to bring order and gain authority, found a basis in scripture for the
power of punishment by the civil authorities. “There can be no doubt … that modern ideas on the
subject of crime are based upon two assumptions contended for by the Church of Dark Ages”.17
That the state was representative of the Church with respect to crime and the Church was capable
of defining the crimes” In Anglo-Saxon law of English which had the origins of German Codes,
the offender could buy back the peace he had broken by paying what was called “wer” for
homicide and “bot” for the crimes other than homicide to the victim or his kin according to a
schedule of injury tariffs. In addition to these payments the offender had to pay “wite” to the
king or his lord as a fee for making the settlement between the victim and the offender.18 The
German tribes enjoyed more rights than those of Rome. In 9 th Century, A.D. during the time of
Alford and his so called “Dooms of Alford”, the blood feud was invoked if victim’s right to
compensation was denied. Like Hammurabi Code, each crime had a price depending upon the
factors like various types of crimes committed and victim’s status, age sex etc. An example of
the detailed payments to be made for various offences by the Dooms of King Alfred was as
under:

“A man who lay with a maiden belonging to the king had to pay 50 shillings, but if she were a
‘grinding slave’ the compensation was halved. Compensation for lying with a nobleman's
serving maid was assessed still lower at 12 shillings”.19

Death sentences awarded by the courts were not considered as a punishment by the state, but in
the form of vengeance the victim wished to inflict on the criminal.
Gradually, the influence of the king and the courts grew, so did their share in the compensation

14
Reference found in Richard R. Cherry, Lectures on the Growth of Criminal Law in Ancient
Communities, London. (1890).
15
Iliad : Ancient Greek epic poem attributed to Homer.
16
Sir Henry S Maine : Ancient Law (Oxford, Oxford Library press1946) p 381
17
Dark Ages : A time during which a civilization undergoes a decline, European historical
period (period preceding middle ages) from about AD 476 to 1000. A period of un
enlightenment.
18
William A. Chaney: The Cult of Kingship in Anglo-Saxon England: The Transition from
Paganism to Christianity (University of California Press 1970) p 222
19
Christopher Hibbert: The Roots of Evil (New York: Funk & Wagnalh, 1968) p. 3
received by the victim. This has affected the amount of compensation received by the victim.
Further, the victim’s right to restitution got replaced by the fines imposed by the king and courts.

VICTIM’ POSITION UNDER MUSLIM LAW

The restitution to victims was traced even earlier to Greeks, where Mosaic dispensation was
established among Hebrews. The punishing agencies took a special and prominent cognizance of
the rights and claims of the injured persons as against the offender. That is if a person caused an
injury to another which was not fatal, the offender was required to pay compensation for the loss
of victim’s time and cause him to be thoroughly healed. Restitution or reparation for the offences
against the person or property was the main element of punishment. The death fine was the
general practice and continued to exist in Turkish rule among Semitic. The injured persons were
allowed to compound the offences in lieu of substantial monetary benefits. Reparation and
compensation were recognized as chief forms of punishment during ancient times and even
during the Islamic rule. The Law of Moses provided fourfold restitution for the stolen sheep and
fivefold for more useful ones. In Arabian state the tribes in the cities found it necessary to
provide compensation for offences against the person in order to prevent the socially
disintegrating effects of the blood feud. Thus, it can be asserted that in time of yore, the victims
of crime were prominent figures in the criminal justice system.

JUSTICE TO VICTIMS OF CRIME: LEGISLATIVE FRAMEWORK IN INDIA

The system followed in India for dispensation of criminal justice is the adversarial system of
common law inherited from the British Colonial Rulers. The accused is presumed to be innocent
and the burden is on the prosecution to prove beyond all reasonable doubt that he is guilty. The
accused also enjoys the right to silence and cannot be compelled to reply. This right is
guaranteed by Constitution of India in the form of fundamental right20 and also a universally
recognized right of the accused under Art.14 of the International Convention on Civil and
Political rights.
In the adversarial system truth is supposed to emerge from the respective versions of facts
presented by the prosecution and the defence before a neutral judge. The judge acts like an
20
See Art.20 (3) of Indian Constitution.
umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt.
The trial is oral, continuous and confrontational. At the heart of the trial lies the principle of
orality, which provides that evidence should generally be received through the live, oral
testimony of witnesses in court.21

Moreover this system owing to the conceptualization of crime as an offence against the state, the
criminal justice system is traditionally viewed as a system to facilitate a conflict between the
state and the accused.22 The victim is thereby inherently excluded. Victims of crime are
important players in criminal justice administration both as complainant/informant and as
witness for the police/prosecution. Despite the system being heavily dependent on the victim,
criminal justice has been concerned with the offender and his interests almost subordinating or
disregarding the interests of victim. In the civil law systems generally, the victims enjoyed a
better status in administration of criminal justice. Towards the last quarter of the twentieth
century, the common law world realized the adverse consequences arising from this inequitable
situation and enacted laws giving rights of participation and compensation to the victims.

INVESTIGATION OF OFFENCES AND THE ROLE OF VICTIM

The CrPC does not seem to give any role to the victim during investigation. The investigation
process is the exclusive domain of the police. The crime victim, unless the investigation officer
considers it necessary, has no significant role to play in it. But if we carefully observe the
definition of ‘investigation’23 and sec. 173 of CrPC, it is clear that there is no reason why the
police cannot involve the victim in the process of investigation. In fact, assistance of the victim
might help the police to proceed the investigation in a proper way or direction. However,
practice reveals that once the statement of the victim is recorded, the case is completely within
the control of the police and they do not involve the victim in the investigation process at all.
The Mallimath Committee report suggests that the victim should play an active part in during
investigation. The objective of criminal justice system, according to the committee is to find out
the truth24. Hence the victim’s involvement becomes very important. The victim can assist the
21
Jonathan Doak, Victims Rights, Human Rights and Criminal Justice 34 (Hart Publishing, 2008).
22
Ibid. p.35.
23
Sec. 2 (h) of CrPC.
24
V.S. Mallimath, Report: Committee on Reforms of the Criminal Justice System (Ministry of Home Affairs,
investigation in finding the offender and in collecting the evidence to prove the commission of
the offence by the criminal. The committee also suggests that the victim should be allowed to
offer suggestions with respect to the investigation and should be given the power to move the
court for appropriate directions to ensure proper investigation of the case. This is similar to
French criminal justice system, wherein, during the pre-trial inquiry the victim enjoys the same
rights of participation as the suspect. He or she may request the judged’ instruction to carry out
particular investigation and through his or her lawyer, access to the case dossier is provided.
Similarly, a complainant or informant does not have any say if the Magistrate is deciding not to
take cognizance of the matter, the CrPC is silent as to whether, as in sec. 173(2)(ii), the
informant should be notified or whether the informant has the right to be heard.

Taking note of this situation, the Supreme Court of India ruled that a Magistrate should not drop
proceedings without giving notice to the parties adversely affected. It is just and necessary that,
the Apex Court asserts, these parties should be heard before making an order of dismissal of the
complaint25. The Apex Court has reiterated that such an opportunity of being heard is a must 26.
The Mallimath committee report supports the view of the court and recommends an amendment
in the CrPC in this regard.

ROLE OF VICTIM IN CRIMINAL JUSTICE SYSTEM

When we try to examine the role of victim under the Indian Criminal Justice System, we found
that the system does not consider it important enough to give the victim a role in the prosecution
of crime committed against him or her. The Code of Criminal Procedure assigns a limited role to
a victim of crime to participate in the criminal justice system.
The victim of a crime sets the criminal justice process in motion by giving information to the
police which is expected to reduce it to writing 27. He is further required to read it over to the
informant and to enter its substance in the proper register maintained for this purpose. The
informant is required to sign it and receive a copy of the FIR with free of cost 28. Where the

Government of India, 2003).

25
Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537.
26
Union Public Service Commission v. Papaiah, (1997) 7 SCC 614.
27
Sec. 154 (1) of CrPC.
28
Sec. 154 (2) of CrPC
officer in- charge of a police station refuses to act upon such information, the victim can write to
the Superintendent of the Police who is then expected to direct investigation into the complaint 29.
According to the Criminal Procedure Code any person even directly can approach a competent
Judicial Magistrate and lodge a complaint with him regarding the commission of an offence 30.
The magistrate may then get the matter further investigated by the police, or, may have an
enquiry made into the case with a view to ascertain whether there is sufficient ground for
proceeding.31 The victim thereafter does not participate in the investigation expect by being
called to confirm the identity of the accused or the material objects, if any, recovered during the
course of investigation.

PARTICIPATION OF VICTIM IN A TRIAL

The victim of crime does not have much say in the proceedings. It is presumed that the
prosecutor appointed by the State is a proper authority to plead on behalf of victim and protect
his interest. The Public Prosecutors who conduct prosecutions on behalf of the State have their
own rules of conduct whose function is to place the whole incident in a proper perspective to
facilitate an objective decision. The role of the prosecutor has already come in for considerable
critical comment on the ground that they are more inclined to be committed to the idea of
successful prosecution and conviction of the offender than to a just and dispassionate
presentation of the facts. This approach may satisfy the higher principles of justice, but leaves
the victim cold.32

The public prosecutor, in charge of a case may appear and plead without any written authority,
before any court in which the case is under inquiry, trial or enquiry. 33 However, the CrPC does
not prohibit the victim to engage a lawyer but the role of this lawyer is just to assist the
prosecutor and at the most to submit written statement with the permission of the court after the
closure of evidence in the trial 34. Similarly, the views of victim are hardly heard while releasing

29
Sec. 154 (3) of CrPC
30
Sec. 190 of CrPC.
31
Sec. 201 of CrPC.
32
S. Venugopal Rao, Victims of Crime 22 (Allied Publishers Limited, New Delhi, 1989).
33
See Section 301 of CrPC.
34
See Section 301 (2) of CrPC
an accused on bail will be prejudicial to his interests, claims and security 35.The Code allows the
Public Prosecutor, with the consent of the court, to withdraw a case from prosecution ‘at any
time before the judgment is pronounced.’36 The usage of this provision has been quite
controversial and the Supreme Court has laid down guidelines that the State needs to follow
when withdrawing from prosecution.37 The Mallimath Committee Report has suggested quite a
few changes to the Criminal Procedure Code to give the victim a prominent role. It suggests that
the French system, wherein the victim becomes a party to the proceedings at the stage of
investigation itself, be incorporated in the Indian law. It further suggests that the active
participation of the victim in the trial will be of great help in the search for truth, without
inconveniencing the prosecution. It suggests that the victim be permitted to suggest questions
that the court may put to witnesses; that the victim be allowed to conduct the trial if the Public
Prosecutor does not exercise due diligence; that the victim be allowed to supplement the
evidence adduced by the prosecution and put forth his or her own arguments. The committee also
suggests that the right of the victim should extend to prefer an appeal against any adverse order
passed by the trial court. It further suggests that, as in the case of the accused, the victim should
also be provided with a lawyer if he or she is indigent.

COMPENSATIONS TO VICTIMS OF CRIME

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. 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 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

35
Dr. K.I. Vibhute, Criminal Justice 381 (Eastern Book Company, 1st. edn. 2004).
36
Sec. 321 of CrPC.
37
Abdul Karim v. State of Karnatka, AIR 2001 SC 116.
or after admonition and fine is imposed.38 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. 39 In other words we can
say that, the power to award compensation under Section 357 (3) is not ancillary to other
sentence, but it is in addition thereto. There is no maximum limit to the amount of compensation.
It is left to the discretion of the court to decide in each case depending on its facts and
circumstances. The provision, thus, not only recognizes the need to compensate victims of crime
even when no sentence of fine is imposed but also adds a new positive dimensions to the
philosophy of compensating them. As we discussed in detail the compensatory provisions to
award the compensation to victim, but at the same time we found that these provisions are
subject to conditions. The accused should be convicted to impose the fine or to award the
compensation and another thing is that his/her 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 scheme40 through Code of Criminal Procedure (Amendment) Act, 2008.
This is a welcome step on the part of Government to introduce such scheme, but at the same time
it is equally important one that Government should provide funds for such scheme. There should
be proper co-operation and co-ordination among State Government and Central Government is
essential to raise funds to pay the compensation to victims or his dependents. The State or the
District Legal Services Authority has power to order for immediate first aid facility or medical

38
Sec.5 of the Probation of Offenders Act, 1958, empowers the court to require released offenders to pay
compensation and costs.
39
Sarwan Singh v. State of Punjab, (1978) 4 SCC 111.
40
Sec.357-A of CrPC.
benefits to be made available free of cost to alleviate the suffering of the victim. 41 These
comprehensive provisions are helpful to take care of victim or his dependent as the legislature
first time introduced such scheme under the Code. Victim compensation scheme has thus been
strengthened by assigning role to the State Governments and Legal Services Authority in its
implementation. The scheme is made applicable to the victims irrespective of the outcome of the
prosecution. A few States have already initiated action, as Tamil Nadu is the first State to take
such kind of initiative to establish the funds to support the victims and their dependents, and now
other States are on the way.

CONCLUSION

Then position of victims has varied considerably from ancient, medieval and modern periods.
The victim who occupied the central position and was integral part of the criminal justice system
during the earlier two periods, lost his ground considerably at the beginning of twentieth century.
Though state claimed to be the representative of victim, it showed more concern for the offender
than the victim. Compensation and restitution the two prominent remedies of criminal justice
system once now have become civil remedies during the modern period. This has invited the
various jurists to see the problems of victims in a different angle to improve his position and
bring him on par with the accused person. But late in the twentieth century the victim started
gaining the attention of the nations across the world, as a worthy person to be considered during
the criminal justice system. Attempts were made at both international and national level to
formulate the legislative programmes to recognize rights for victims.

Apart from compensation, today we see many countries have included other rights like right to
participation, right to oppose bail, right to have a say in sentencing the offender in their criminal
laws. The detailed study of these rights has been taken up in the coming chapters. When we try
to examine the role of victim under Indian Criminal Justice System, we found that the system
does not consider it important enough to give the victim a role in the prosecution of crime
committed against him or her. The Criminal Law (Amendment) Act, 2008 granted some rights to
crime victims which uplift the status of victim under Indian Criminal Justice System but still

41
Sec.357-A (6) of CrPC.
there is a scope to build the laws relating to the rights of victims. The criminal justice system in
India substantially occupied with many safeguards and protections to the accused. The
Legislature must look into the recommendations made by the Malimath Committee and the Law
Commission of India. The Legislature should also look into the laws of the various countries to
strengthen its laws concerning to rights of victim. The U. N. Declaration continues to serve as a
useful benchmark in recording the criminal justice system to address the needs of victims of
crime. The Criminal Law (Amendment) Act, 2008 granted many rights to crime victims such as
Victim Compensation Scheme, right of appeal, rights to rape victims, appointment of an
advocate but still many lacunae exist in our criminal justice system. Provisions as to victim
protection, right to legal aid, right to rehabilitation, victim impact statement and mainly role in
the proceedings have to be incorporated. If these rights are not incorporated, then the role of
victim only remains as prosecution witness in entire proceedings.