PROTECTION OF RIGHTS OF VICTIMS AND THE CRIMINAL JUSTICE

SYSTEM IN INDIA: A CRITICAL ANALYSIS

Submitted By:- Rashmi Pandey

Submitted To –Dr Kaumudhi Challa /Dr. Avinash Samal/ Dr.

Uttam Kumar Panda

Subject:- Legal Research and Methodology

Semester –1

Hidayatullah National Law University

Raipur (C.G)
 Declaration

I hereby declare that the research proposal entitled “Protection Of Rights Of

Victims And The Criminal Justice System In India: A Critical Analysis”
submitted to HNLU, Raipur, is a record of an original work done by me under the
guidance of, Dr Kaumudhi Challa /Dr. Avinash Samal/ Dr. Uttam Kumar Panda
Faculty of Law, HNLU, Raipur.

Rashmi Pandey
LLM
HNLU Raipur

I
 Acknowledgements

I feel highly elated to work on the topic “Protection Of Rights Of Victims And The Criminal
Justice System In India: A Critical Analysis”The Research Proposal has been possible due to
obligated assistance of several persons.

I express my deepest regard and gratitude for Dr Kaumudhi Challa /Dr. Avinash Samal/ Dr.
Uttam Kumar Panda, Faculty of Law. There consistent supervision, constant inspiration and
invaluable guidance have been of immense help in understanding and carrying out the nuances
of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing extensive
database resources in the Library and through Internet.

I would be grateful to receive comments and suggestions to further improve this project report.

RASHMI PANDEY
LLM
HNLU Raipur
 Research Proposal
PROTECTION OF RIGHTS OF VICTIMS AND THE CRIMINAL JUSTICE SYSTEM IN
INDIA: A CRITICAL ANALYSIS

Introduction

The Researcher shall analyse the impact and relationship of Criminal Justice System with the victim of
the crime. The following enquiry is in the light of analysing that the inequalities in social life usually
lead to arm-twisting of legal procedures in such a way that provisions which were for the aid of accused
respecting his/her rights of Fair trial often lead to major delays and financial draining of victim parties
apart from the agony and victimization Victims suffer already.
It has been always an endeavour of Indian Justice System to address such gaps through various
Amendments brought in from time to time to make the system full prove. Be there as it may, the 1986,
and 2008 Amendments brought in CrPC hold testimony that improvement in administration of Justice
has always been our endeavour. Much highlighted Malimath Committee (2003) in Chapter 6 strongly
espoused the idea of ‘justice to victims’. The Report highlighted the plight of the victims of crime in
every criminal justice process and recommended the constitution of a Victim Support Service
Coordinator to safeguard trial stage. “The special concern for victim got incorporated into the Code of
Criminal Procedure, 1973 through amendments in the years 2005, 2006, 2008 and now in 2013. The
Code of Criminal Procedure (Amendment) Act, 2008 has incorporated an elaborate Victim
Compensation Scheme that provides for every State- Government to set up a Victim Compensation
Fund”.1 Yet we have seen the deferred trail of Nirbhaya Case, where appeals, pardon petitions found
eternal life. We have seen political the recent Hathras rape incident where U.P. police burnt the dead
body of victim in the middle of the night, without families permission and media narrative even gave a
hypothesis of no rape happening which was later turned down by CBI Chargesheet. In these incidents
we clearly realise that victims are very vulnerable parties, and although improvements have been made
there is still further room for improvement if we shift our perspective towards victim rights.

1.1. Rationale of the study

The endeavour of the study is identify the vulnerable positions of the victim during various stages of
Criminal Justice system and hence brainstorm the reasons of present posturing of law suggesting
improvements so that susceptibility of abuse of victim position can be reduced.

1
Pande, B.B. , “Growing Concern for ‘Victims’ Interest in Criminological Theory, Criminal Law Norms and Field
Level Practices: Implications for Future Action” , KIIT Journal of Law and Society Vol.1 No.1 (2011)
2. Review of literature

Topic :- Introduction to Victim Problems

Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008)
Justice Balakrishnan explains the core of delay in justice delivery system is the complexity of
laws and provisions of endless appeals. Unprofessionalism amongst lawyers and regular
adjournments add to the misery of clients.

ARORA B.L., Law Of Speedy Trial In India, 22, (2006)

The book contains a gist of all relevant cases where Supreme Court and High Court decisions
are referred relating to speedy justice. The book also discusses Malimath Committee report and
discusses the effect of various experiments in the form of Lok Adalats and Fast Track courts in
speeding up administration of Justice.

Anand A.S., Justice For Women- Concerns And Expressions, 56, (2nd Ed., 2003).
Justice Anand, who has been Chairman of National Human Rights commission and also Chief
Justice of India had beautifully penned down a book on concerns of women and how this
gender is usually at the receiving end of violence in society. He asserts that justice to women is
quintessential for any progressive society. His book is divided into two parts where 1st part
deals with the his articles on the issue and second part is a compilation of case laws significant
to earmark change of approach as to how justice for women is to be seen.

Panchu Sriram, Mediation Practice & Law, 3-5 (2011).

The Author brings about Art and technique of Mediation. Litigation’s losses are high in terms
of time, expense and damage to relationships. There is a need for alternative methods which are
quicker, cost less, yield practical and enforceable solutions , while preserving relationships.
With its focus on noncoercive and consensual processes, mediation is the fastest growing
dispute resolution remedy worldwide. With the law being amended and the courts setting up in-
house mediation centres, a wide range of cases, including civil, commercial and matrimonial
disputes, are being resolved by this process.
Nariman Fali S, India’s Legal System Can it be Saved, 142(2006)
The Author very charismatically traces the history of justice system in India from smrities to
current legal problems. There is precision and brevity in explanations of concepts of PIL,
Judicial Review and ADR. The Author who has himself been ornamental in amendments
brought in by CPC like insertion of Sec 89 and Crpc in 1986, towards the end of the book
points on to some serious shortcomings in justice delivery system.

Verma J.S, New Dimensions of Justice, 102 (2000).

There is discussion with relation to difference which is carved between Law and Justice. This
has been recognized by the law itself by way of Inherent Powers in CPC Sec 151 and Crpc Sec
482 and even in Constitution Under Article142.

Topic:- Legal Framework of Victim Rights

i. Access to justice and fair treatment – The core consideration within these rights are
mechanisms for Prompt redressal, Right to be Informed about the offence and Victim
rights, behavioural sensitivity, safety, proper legal assistance and concerns of privacy.
ii. Restitution – “including return of property or payment for the harm or loss suffered;
where public officials or other agents have violated criminal laws, the victims should
receive restitution from the State”.
iii. Compensation – “when compensation is not fully available from the offender or other
sources, State should provide financial compensation at least in violent crimes,
resulting in bodily injury for which national funds should be established”.
iv. Assistance – “victims should receive the necessary material, medical, psychological and
social assistance through governmental, voluntary and community based means.
Police, justice, health and social service personnel should receive training in this
regard”.
Legislative and Administrative Measures

(I) Sec 154 Criminal Procedure Code along with Lalita Kumari Vs State of U.P2

Lays down the law for initiating the process of Criminal Justice System. Provision provides that
“Every Cognizable Offence” can be reported in nearest police station. 2013 amendment in crpc had
made special provisions for offences women against like rape and sexual assault shall be written
down preferably by women police officer or police can be called at a preferable place of
convenience for victim of the crime. The infamous Lalita Kumari Judgement brought in the
concept of zero FIR.

(II) Victims‟ Compensation in the Criminal Procedure Code, 1973 u/s 357-59

Section 357(1) provides that out of fine imposed on the offender during sentencing compensation
is granted to Victim out of that. The indemnification of prosecuting, loss and injury by the offence
to victim is recoverable trough the same fine. There is an additional right given to victim to sue
offender in Civil Court in case of non-payment of compensation

The recent amendment in the of the Criminal Procedure Code (Amendment) Act, 2008 has
provided long debated issue of victims‟ compensation scheme. “Besides victims compensation
scheme the CrPC amendment Act has also empowered the victims to engage an advocate of his
choice with the permission of the court to assess the prosecution (Section-24). This lawyer will
also be authorised to present separate arguments, examine witnesses and produced evidence if
permitted by the court. This aside, the victim may file an appeal against an acquittal of the
accused, conviction for a lesser offence or the award of an inadequate sentence 3” (Section-372).
These provisions have given a legitimate space to the victims in the Criminal Justice System.

In crux the following are the salient features of the Criminal Procedure Code (Amendment)
Act, 2008:

1) “Every State Government in co-ordination with the Central Government shall prepare a

2 AIR 2012 SC 1515

3
Sec 372 Crpc
 scheme for providing funds for the purpose overcompensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require
rehabilitation4”.

2) “Whenever a recommendation is made by the Court for compensation, the District Legal
Service Authority or the State Legal Service Authority, as the case may be, shall decide
the quantum of compensation to be awarded under the scheme referred to in sub-section
(1) of Sec 357 A.

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

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

5) On receipt of such recommendations or on the application under sub-section (4) the State
or the District Legal Services Authority shall, after due enquiry award adequate
compensation by completing the enquiry within two months.

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

(III) Compensation to the Victims in the Special Laws

a) “Under the Probation of Offenders Act,1958”:- Sec 5 and Sec 3 Court can order release of
offender directing compensation for injuries to victim of offence

4
Sec357 A(1)
 b) “The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989”:-
monetary relief to the victims of crime ranging from Rs 25,000 to 2,00,000 depends on the
nature of offence and circumstances of the case.

The recent example is judgment delivered by Nagpur Bench Bombay High Court in CBI v
Sakru Mahgu Binjavar & Others5. “This judgment has received sharp reactions from Dalit
leaders as well as human right activists across the country broadly on two aspects;

i) It commutes the Trial Court‟s death penalty for the accused to life imprisonment;
ii) It refuges to accept the killings as Caste atrocity”.

In view of this, how far the provisions of the Acts in providing monetary relief to the victims of
caste atrocities could have been useful is the subject of further inquiry?

Domestic Violence Act, 2005 :- Sec 20 to 24 provides compensatory justice in cases of domestic
violence.

The Custodial Crimes (Prevention, Protection and Compensation) Bill, 2006

“The proposed bill aims to prevention and protection against custodial crimes and also
provides compensation to the victims of custodial offences”.

The Communal Violence Bill, 2005

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005
provides for;- “(a) prevention and control of communal violence, (b) speedy investigation and
trials, and (c) rehabilitation of victims. Currently, the National Advisory council( NAC),
Government of India has constituted a core group of human rights activists to examine the
efficacy and effective of the bill in the context of rights based approach to the victims of
communal violence”.

Administrative Measures
During last decade, the Government of India has framed various schemes to strengthen
victim’s justice however their implementation at grassroots level has always been questioned due
to procedural lapses. Among others, the following schemes are worth mentioning;

5
CRIMINAL APPEAL NOS. 1791-1795 OF 2014 (Decided on 24th may 2019)
 a) Scheme for relief and rehabilitation of victims of rape

b) Scheme for compensation to the victims of violence by left wing extremists

c) Central Schemes for Assistance to victims of terrorist and communal violence
d) Rehabilitation packages to provides relief to the victims of 1984 riots
e) Ujjawala Scheme for prevention of trafficking and rescue, rehabilitation and re-
integration of victims of trafficking for commercial and sexual exploitation

Topic:- Judicial Decisions

State of Maharashtra v. Dr. Praful B. Desai6
“One needs to set out the approach which a court must adopt in deciding such questions. It must be
remembered that the first duty of the court is to do justice. The courts must endeavour to find the
truth. It has been held that there would be failure of justice not only by an unjust conviction but
also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the
rights of the accused have to be kept in mind and safeguarded, but they should not be over
emphasized to the extent of forgetting that the victims also have rights”.”

Investigation Stage
In Parvinderjit Singh v. State (U.T. Chandigarh)7 the Court observed that the freedom of an
accused can be curtailed and he can be arrested for the purpose of protecting the victim and
proceeding with the investigation without hinderance. The investigation process is exclusively a
police function and the victim has a role only if the police consider it necessary. There are
administrative instructions given by police departments of certain States to give information on
progress of investigation to the victim when asked for. Otherwise till police report (charge sheet) is
filed under Section 173 CrPC, the victim’s plight is pitiable. After the police report is taken
cognizance of by the Magistrate, if he decides to drop the proceedings, it is required of him to hear
the victim-informant by issuing notice to him8

Framing Of Charges Stage

6
2003CriLJ2033
7
(2008) 13 SCC 431
8
1997 Cr. L. J. 4636 (SC)
Dhananjoy Chatterjee v. State of W.B.9, wherein this Court had observed that “shockingly large
number of criminals go unpunished thereby increasingly, encouraging the criminals and in the
ultimate making justice suffer by weakening the system's creditability. The imposition of
appropriate punishment is the manner in which the Court responds to the society's cry for justice
against the criminal. Justice demands that Courts should impose punishment befitting the crime so
that the Courts reflect public abhorrence of the crime…”,

Awarding Compensation

State of Gujarat v. Hon'ble High Court of Gujarat10, the Supreme Court suggested that it
would be a constructive thinking for the State to make appropriate law for diverting some portion
of the income earned by the prisoner when he is in jail to be paid to deserving victims. It
recommended the states’ concerned to make law for setting apart a portion of the wages earned by
the prisoners to be paid as compensation to deserving victims of the offence the commission of
which entailed the sentence of imprisonment to the prisoner, either directly or through a common
fund to be created for this purpose or in any other feasible mode.

Arvind Kumar Mishra v. New India Assurance Co. Ltd.11 observed that perfect compensation
is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at
the hands of the wrongdoer and the court must take care to give him full and fair compensation for
that he had suffered. In some cases for personal injury, the claim could be in respect of life time's
earnings lost because, though he will live, he cannot earn his living. In others, the claim may be
made for partial loss of earnings. Each case has to be considered in the light of its own facts and at
the end, one must ask whether the sum awarded is a fair and reasonable sum.

9
[1994]1SCR37
10
AIR 1998 SC 3164
11
(2010) 10 SCC 254
3. Research Question:- The research paper tries to analyse issue of Victim Rights in Indian
Context and determine the effectiveness of implementation following questions:-
➢ Can active participation of Victim in initial stages of investigation and Inquiry be
made possible in Indian Context?
➢ What can be reasonable Checks on the powers of Police to reduce abuse of
Power?
➢ What are the categories of offences where number of Appeals can be restricted?
➢ What are the challenges Involved in implementation of Witness Protection
Scheme in India?

4. Objectives:- The aim of the study is:-

❖ To analyse the entire history and progress of Criminal Justice System with respect to
Victim rights.
❖ To Understand the Vulnerable positions for Victims during various stages of
Investigation and trial.
❖ To Suggest Methods to reduce abuse of victim rights by Police and accused party
❖ To Suggest viability of Witness Protection Act in India.
❖ To consider categories of Crimes where number of appeals can be restricted.

5. Conceptual framework
Effective Justice Delivery System and speedy Justice reinstates the confidence of people in
Rule of law and inspires them to uphold and believe in Justice. It is at the hits the core of
instincts of man that he/she can manipulate other will definitely and certainly be punished
and penalised. Improved understanding of Criminal Jurisprudence highlight the importance
of “a key moment in the mind of an accused when he decides to choose to attempt a crime or
not. Indeed it is an emotional choice, if Justice is usually administered in such a way that
consequences of crime are loud, clear, and Impactful, this emotional decision of person is
soon affected.” For this it is essential to plug the escape routes, manipulation procedures and
certainly inordinate delays.
6. Hypothesis
Stage I:- Reporting of Crime
➢ The abuse of position of power in police force usually cause under- reporting or
non-reporting of crimes
Stage II:- Investigation and Trial of Crime
➢ India is a fit country due to its socio-economic conditions to have a Witness
Protection Scheme implemented in its Courts.
Stage III:- Conclusion of Trial
➢ Several Forums of Appeal for sexual crimes harass victim and diminishes her
confidence in Justice.

7. Scope and Limitations

This study shall delve into Various stages of operation of Criminal Justice system and
analyse at each stage the areas where Victim rights can be abused. The scope of study is
restricted to data from reported case laws and opinions of Jurist and Statutory Law in
place. The study doesn’t include any real time experiences of victims or witness abuse.

8. Methodology
Doctrinal methodology shall be undertaken to carry out this research by reading various
judgments of the Supreme Court analysing the considerations invoked in the in the
adjudicated cases. Taking into consideration the case study of various landmark
judgments pertaining to the Victim Rights. The research method followed by the
researcher in the paper is Deductive method also known as the top-down approach. The
hypothesis will be tested after analysing and examining the opinions of various eminent
scholars, lawyers, the reports by various committees, the judgments of the Supreme Court
and the prevalent Indian conditions.

9. Chapterisation and Organisation of study

Chapter I:- Introduction
Chapter II:- Stage Wise Analysis of Victim Rights in Criminal Justice System
(Legal Setup and Judicial Decisions)
 2.1 Stage 1:- Reporting of Crime
2.2 Stage 2:- Investigation /Trial of Crime
2.3 Stage 3:- Post Judgement of Crime
Chapter III:- Major Vulnerable Positions (Identification and Suggestions)
3.1. Local Social Pressures
3.2. Abuse of Police Powers
3.3. Accused with Influential Background
3.4. Threatening of Witnesses
3.5.Crimes requiring early Compensation for medical Expenses
3.6. Several Appeals in Sexual Crimes
Chapter IV:- Limitations of Suggestions
Conclusion
10. Data Collection:- The Data Collected is Secondary and is used for Doctrinal/Qualitative
Analysis of research questions Involved.
11. References

Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008)

ARORA B.L., Law Of Speedy Trial In India, 22, (2006)

Anand A.S., Justice For Women- Concerns And Expressions, 56, (2nd Ed., 2003).

Panchu Sriram, Mediation Practice & Law, 3-5 (2011).

Lalu Varghese, Panchayat Court as an ADR Mechanism: Effectiveness and Advantages, 11(4)

Nayaya Deep 30, (2011).

Nariman Fali S, India’s Legal System Can it be Saved, 142(2006)

Verma J.S, New Dimensions of Justice, 102 (2000).