“VICTIMOLOGY IN THE CRIMIN JUSTICE SYSTEM WITH SPECIAL

REFERENCE TO WOMEN AND CHILDREN”

Dissertation submitted to Maharishi University of Information Technology, Noida,

School of Law, in partial fulfilment of the requirement for the degree of Master of
Laws.

SUBMITTED BY:

BHARAT JOSHI

UNDER THE SUPERVISION OF:

MR. AJAY KUMAR

DEAN ACADEMICS

SCHOOL OF LAW

MAHARISHI UNIVERSITY OF INFORMATION TECHNOLOGY

2021 -2022
 DECLARATION
This dissertation on “VICTIMOLOGY IN THE PENAL JUSTICE SYSTEM WITH SPECIAL
REFERENCE TO WOMEN AND CHILDREN” embodies and is imperative with the result of
my own research work pursued under the supervision of Mr. Ajay . I declare that no part of this
dissertation has been published or submitted to any other institution for any other purposes. My
indebtedness to other works and publications have been duly acknowledged at relevant places.

NAME: BHARAT JOSHI

SIGNATURE:

COURSE: Master of Laws (LL.M.)

ENROLLMENT NUMBER: 2102054105022
 CERTIFICATE

This is to certify that this Dissertation titled “VICTIMOLOGY IN THE CRIMINAL JUSTICE

SYSTEM WITH SPECIAL REFERENCE TO WOMEN AND CHILDREN” is written by

Bharat Joshi bearing enrolment no. 2102054105022. He is a candidate of Maters of Law

Program here at the Maharishi University of Technology, Noida, School of Law. She has

conducted all the research work under my supervision and submitted original and bona fide work

to our utmost satisfaction, in the final semester for the partial fulfilment of the requirements for

the award of the degree of Master of Laws.

MR AJAY KUMAR
 ACKNOWLEDGMENT

This study is the culmination of countless hours of research by the author. Any material utilized
by the author that has been used in this study has been thoroughly acknowledged. My research
on this topic will help me to create clear thoughts and a big debate surrounding the criminal
structure can be rectified.

To begin with, I’m thankful to the Dean Academics of my Institution, Maharishi University of
Technology, Noida, School of Law, for inculcating the concept of preparing a dissertation paper
and allowing the author to present her view points in a liberal manner. I am greatful to KIRTI
VASHISTH for helping me structure this study, appreciate the art of citing and for
recommending different books, judgments and reports, that were helpful in clarifying my
foundations of research. I am fortunate enough that he, agreed to supervise and mentor my study;
his inputs helped me create the path of this study as his patience and critical questioning
throughout the process. He helped me immensely to reassert and understand the subject matter
more thoroughly and put this dissertation to the foot of being created into a research.
 OBJECT OF THE RESEARCH

The object of this research is to explore the extent to which the present justice system provides
the various facilities and scopes to the victims of crimes. The issues arising out of Victimology
are not just legal but also social, economic and ethical. The area of study would be to explore the
problems and their solutions to victims specially in the case of women and children. The vastness
of the subject would necessitate putting restrictions on the scope of study. It is proposed to
restrict the scope of study to legal issues as far as they come under the traditional ambit of
Criminal Justice System. The main objects of the study are :

1. To study the conceptual contours of Victimology.

2. To study the international criminal policy on Victims.

3. To study the statutory settings of the concept of Victimology.

4. To study the functional aspect of Victimology specially relating to women and children.

5. To evaluate the response of present laws in India to compensate and restore the victims of
crime through the present criminal justice system.

HYPOTHESIS

The hypothesis underlying the research is that, the present legal framework on Victimology is
not adequately equipped to deal with the problems and their solutions to victims. To leave the
situation as it stands today would clearly worsen the present legal system, which will have grave
consequences in the coming years. It is imperative that the law in respect of Victimology be
adequately formulated and reviewed so as to reflect a consistent and socially acceptable solutions
and one which will go a long way in promoting individual dignity and rights of victims, for the
development of the society.
 RESEARCH METHODOLOGY

Considering the close inter-relation, the research issue has with various disciplines like
Sociology, Criminology, Psychology, Psychiatry, Law, Politics, Education, Public
Administration, History and present Jurisprudence etc. The methodology adopted for the present
research would be a combination of doctrinal and non-doctrinal analysis. In case of doctrinal
analysis - emphasis will be on black letter. The researcher proposes to collect the required
material from a variety of sources including Criminal Jurisprudence in India, International
Conventions, Journals and pronouncements of the courts in India and abroad. Doctrinal analysis
will be used to study the present legal frame work on Victimology.
INTRODUCTION................................................................................................................................................. 10
THE DEFINITION OF CERTAIN TERMS................................................................................................................. 17
CLASSIFICATION OF VICTIMS............................................................................................................................. 18
WOMEN VICTIMS.......................................................................................................................................................18
CHILD VICTIMS.......................................................................................................................................................... 19
DOMESTIC VIOLENCE............................................................................................................................................20
FEMALE FOETICIDE..................................................................................................................................................... 21
FEMALE INFANTICIDE.................................................................................................................................................. 21
INCEST..................................................................................................................................................................... 21
RAPE....................................................................................................................................................................... 22
DOWRY AND DOWRY DEATHS......................................................................................................................................22
Sati........................................................................................................................................................................23
Molestation and Sexual Harassment...................................................................................................................23
Abduction and Kidnapping...................................................................................................................................24
Prostitution and Trafficking of Women................................................................................................................24
Honour Killings.....................................................................................................................................................24
U.N. EFFORTS TO ADDRESS VICTIM’S ISSUES..................................................................................................... 25
FOURTH UNITED NATIONS CONFERENCE ON WOMEN:-.....................................................................................................25
CRIME PREVENTION AND HUMAN RIGHTS:-....................................................................................................................26
VICTIM PROTECTION UNDER THE STATUTE OF INTERNATIONAL CRIMINAL COURT (ICC)....................................26
PARTICIPATION.......................................................................................................................................................... 27
REPARATION..............................................................................................................................................................27
TRUST FUND FOR VICTIMS...........................................................................................................................................27
VICTIMS AND WITNESS PROTECTION..............................................................................................................................28
VICTIMOLOGY: CONSTITUTIONAL AND LEGISLATIVE FRAME WORK IN INDIA.....................................................28
VICTIMOLOGY : LEGISLATIVE FRAMEWORK IN INDIA......................................................................................... 30
THE CODE OF CRIMINAL PROCEDURE, 1973...................................................................................................................30
RIGHT OF VICTIM TO ENGAGE ADVOCATE OF HIS OR HER CHOICE........................................................................................31
COMPOUNDING OF OFFENCES..............................................................................................................................31
RIGHT TO IN-CAMERA TRIAL.................................................................................................................................32
VICTIM HAS A RIGHT TO APPEAL IN CASE OF ACQUITTAL OF ACCUSED PERSON ...........................................32
RIGHT OF REVISION............................................................................................................................................... 33
RIGHT TO CANCELLATION OF BAIL.................................................................................................................................34
RIGHT TO COMPENSATION...........................................................................................................................................34
VICTIM COMPENSATION SCHEME..................................................................................................................... 35
VICTIM COMPENSATION SCHEME ( PENAL PROVISIONS)....................................................................................36
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956............................................................................................37
PUNISHMENT FOR LIVING ON THE EARNINGS OF PROSTITUTION...........................................................................................38
PROTECTIVE HOME OR PROVIDED CARE AND PROTECTION BY COURT..................................................................................39
THE PROHIBITION OF CHILD MARRIAGE ACT, 2006..........................................................................................................41
RIGHTS AND STATUS OF VICTIMS OF CRIME WITH SPECIAL FOCUS ON WOMEN AND CHILDREN........................43
 RIGHTS OF VICTIMS OF CRIME IN CRIMINAL JUSTICE SYSTEM..............................................................................................43
THE CRIMINAL PROCEDURE CODE, 1973........................................................................................................................44
RECORDING OF STATEMENT OF RAPE VICTIM AT HER PLACE...............................................................................................47
MEDICAL EXAMINATION OF THE VICTIM OF RAPE.............................................................................................................48
INVESTIGATION TO BE COMPLETED WITHIN 3 MONTHS IN CASE OF CHILD VICTIM..................................................................49
MANDATORY JUDICIAL INQUIRY IN CASE OF AN ALLEGED RAPE ON A WOMAN......................................................................49
INQUIRY OR TRIAL SHALL BE COMPLETED WITHIN A PERIOD OF TWO MONTHS IN CASE OF RAPE............................................50
NO UNNECESSARY QUESTIONING REGARDING PAST CHARACTER OF VICTIM........................................................................50
The Indian Penal Code, 1860................................................................................................................................51
BAR TO DISCLOSE THE IDENTITY OF THE VICTIM OF CERTAIN OFFENCES..............................................................................51
ABETMENT OF SUICIDE OF CHILD...................................................................................................................................52
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000...........................................................................52
Observation Homes..............................................................................................................................................53
Special Homes......................................................................................................................................................53
Restoring Victims..................................................................................................................................................55
RESTORATIVE JUSTICE....................................................................................................................................... 56
TECHNIQUES OF RESTORATIVE JUSTICE...........................................................................................................................57
3. Community Participation.................................................................................................................................58
4. Restitution Includes..........................................................................................................................................58
CONCLUSION AND SUGGESTIONS...................................................................................................................... 59
SUGGESTIONS........................................................................................................................................................60
1) Amendment in Section 357 of Criminal Procedure Code...............................................................................60
2) Grant of Compensation by Lower Courts.........................................................................................................60
3) Amendment in Section 360 Criminal Procedure Code:-...................................................................................61
4) Amendment in Section 361 Criminal Procedure Code:-...................................................................................61
5) Amount of Compensation................................................................................................................................61
6.)Reforms in Police Machinery............................................................................................................................61
7) Victim Participation:-.......................................................................................................................................62
8) Right to Seek State Assistance.........................................................................................................................62
9) Restorative Justice............................................................................................................................................63
10) Compensation at the Earliest.........................................................................................................................63
INTRODUCTION

For too long, the law has centered its attention more on the rights of the criminal than on the
victim of the crime. It is high time we reverse this trend and put the highest priority on the
victims and the potential victims.1 Crime victims are the “forgotten persons” of the criminal
justice system, valued only for their capacity to report crimes and to appear in court as witnesses.
They are expected to support a criminal justice system that has “treated them with less respect
that it has treated the offender.”

Similarly, Siegal2 characterized this inequity in the following manner: “vulnerable, angry,
insecure, selfless, the victim who survives observes a criminal who is fed, housed, given legal,
medical, psychological, and psychiatric aid - even education and vocational training. The
victim.....suffers alone”3 The victim of crime has been the ‘forgotten man’ of the criminal justice
system. This lack of knowledge about victim is astonishing, given that the criminal justice
system as we know it today would collapse if their co-operation was not forthcoming.

The victims experiences with the professionals of the system- police, lawyers, court officials and
other those running compensation agencies - are rarely considered, but will affect their attitudes
to that system. If victims come to regard their treatment as too stressful, demeaning, unfair,
distorting of reality, too remote or too little concerned with their own rights, feelings and
interests or if decisions are made which are felt to be unsatisfactory, it is possible that this
‘secondary victimization’ by the system may lead to disenchantment, disinterest and future non -
operation, not only by the victim, but also by his friends and relatives.

1
Massage to congress, June 1975 quoted in Criminal Justice and the Victim by William F. McDonald, Editor, Sage
Publications, London, 1976, p. 17
2
Seigal, M.(1983), Crime and Violence in America
3
Victims of Crime , Problems, Policies, and Programs- , pg 9
The Criminal Justice System is almost exclusively focused on the offender. When an offence is
reported to the law enforcing agencies by the victim, they look for an offender and arrest an
offender or a suspected offender. The law enforcing agencies associate the victim only as a
means of finding the offender and securing criminal prosecution against him. The offender is
held for court action and brought to trial. The victim is witness for the State against the offender.
The convicted offender may be sentenced to fine or imprisonment or placed on probation of
good conduct, or he may be pardoned by the State. And in the whole episode, the victim is kept
aside and left at his own fortune without proper remedies.

The administration of criminal justice all over the world seems to be guided by one cherished
principle viz, the protection of rights of accused. In a criminal trial there are at least two active
participants viz, the offender for whose sake the entire machinery of justice always remains
vigilant, and the victim of crime-the forgotten man of criminal justice system. Criminal Justice
Delivery System at present demonstrates its deep concern for the accused by conferring a set of
rights and privileges on him, prior to as well as during the trial. It resorts to every possible
measure with in its control to “treaf’ , “reform” and re-socialize the accused. It does not
unfortunately exhibit similar “sensitivity” and “concern” for “victims” of crime and abuse of
power by State agencies.4

Such a Criminal Justice System obviously turns out not only to be ‘ accused-offender oriented ,
but also to be unfair ,unjust and inequitable criminal justice system conveniently assumes that
punishing the perpetrator also satisfies the claims of victim of crime. The second partner of what
Mendelson calls the penal couple.5 Criminal administration at present has nothing more to do in
favour of crime victims that they actually deserve.

Broadly speaking in India four agencies are concerned with the administration of criminal
justice. These are Legislature, Police and Prosecution, Courts and Correctional agencies. The
legislature provides for the broad framework of legislation with in which all other agencies
operate. The police are concerned with the maintenance of law and order. The courts are
concerned with administration of justice through various procedures and correctional services
work through several institutional and non- institutional programs.

4
Vibhute . K.I. -‘Compensating Victims of Crime in Indi
5
Siddique, Ahmad—Criminology : Problems and Perspectives (Eastern Book Company) 2005 p.545
Emphasis of correctional services has shifted from deterrence to reformation and stress is on
reformation of offenders by giving them more humane treatment in prisons. The attention of all
these agencies is focused on the criminal who holds the central stage all the time. Services of
victims are required only as a witness for identification of the offender and successfully
prosecuting the offender.

When a crime is reported to police, search is made for the criminal. They maintain statistics on
the arrest, conviction, imprisonment and release of criminals or suspected criminals. The police
are required by law to respect concrete and specific rights of offenders but it turns a blind eye
towards the plight of victims and victims are left to the mercy of police from which they have no
escape. During the course of trial accused is treated as a privileged person and is provided all
possible aid and services including a defense counsel, if necessary at the cost of state.

Courts interpret the law and administer justice by adjudicating on the basis of evidence placed
before them whether offender is guilty or not and on conviction award sentence, A proportionate
to the nature of crime. In this set up rights of accused are keenly protected but victim is launched
on a career of social injustices, of callous post-crime victimization by the police, the courts and
the legal profession .Society is sensitive to the issue of social justice for the offender, spends
millions of rupees on programs for offender-oriented reform and rehabilitation.

On the other hand, society fails to protect crime victims and refuses them aid. The sufferings of
victims often immeasurable are entirely over-looked in the zeal to over - protect the criminal.
One can therefore, understand the sarcasm in words spoken by the Belgian delegate at the Paris
prison congress in 1896 which are pertinent even today: - “the guilty man, lodged, fed, clothed,
warmed, lightened, entertained at the expense of state in a model cell, issued from it with a sum
of money lawfully earned, has paid his debt to society and the A victim instead of being looked
after is contributing towards the care of prisoners during their stay in prison. In fact it is a short-
coming of our criminal jurisprudence that the victims of crime do not attract due attention.”6

6
Rao, S. Venugopal - Prespectives in Criminology (Institute of Advanced Study, Vikas Publishing House Pvt.Ltd.)
1988 p.214
Justice Krishna Iyer writing on ‘The Criminal Process and Legal Aid’ observed, “Tears shed for
the accused are traditional and ‘trendy’ but what the law has done for the victim of crime, the
unknown martyr?”7

The above cited observation of a former Judge of Supreme Court of India makes it clear that the
criminal law in India is not victim oriented rather it is offender oriented. The sufferings of
victim, often immeasurable, are entirely overlooked in misplaced sympathy for the criminal.

The modern criminal law, which is supposed to represent the social ambitions and norms, is
designed to punish as well as to reform the criminal, but it overlooks an important by-product of
crime, the victim.

During the last century, there have been far reaching changes in criminal justice system
concerning the rights of the accused during the investigation of the crimes, prosecution of
offenders and the punishment to be imposed in the event of conviction?

Statistics of the offenders, details of arrests by the police, administration and release of the
criminals from the penal institutions are all kept but collection of various aspects of information
relating to the victims remain neglected and unchanged. The whole spectrum of criminal
jurisprudence is ordained to perceive and permeate the interests of the accused of crime and to
neglect the victim as a ponderous necessaries.

Thus unmindful and untoward trendy threat towards the accused has left the complainant the ‘
unknown martyr’’ of crime.8 It is apparently clear that in early human civilization, retribution
was the only aspect of punishment to be taken into consideration. The law was designed not to
punish the accused but to compensate the victim. The amount and mode of redress was left to the
discretion of the victim. The accused was totally discarded under the arbitration of the state.

7
Iyer, V.R .Krishna Justice: The Criminal Process And Legal Aid, Indian Journal Of Criminology,p. 10
8
See Articles 20, 21, and 22 ofthe Constitution of India
Even the courts have ignored the interests of the victim while they have been busy protecting the
interests of offender. Not only the courts but the entire criminal justice establishment, including
legal scholars and criminologists, has largely ignored the victim. Compare, e.g, the attention that
has been given to the offender with that given to the victim.

There is enormous literature on the offender; his rights; the role he plays in criminal process; his
perceptions of that process; the influence which that process has and the damage that it can do to
his life’s prospects by labeling him a criminal; his racial, social economic, marital,
psychological, physical and behavioral characteristics; and even the effects of his incarceration
on his family. Not only is the literature vast but the expenditure of money and concern for the
accused has also been enormous.

Elaborate and costly physical structure has been built to house criminals and promote their
behavioral improvement. The promoters of correctional reform have been revered as pioneers in
criminology. A bigger chunk of finances on research has been devoted to determining what
happens when the criminal justice system touches the lives of individuals who become accused.
In comparison, virtually nothing has been done on what happens to that other group of citizens
touched by the criminal justice systems, namely, the victim.

There are no schools of Victimology and almost non existent legal literature on how victims are
treated by Criminal Justice system. The victim has not even been given a room in the courthouse
where he can wait comfortably and securely for the hearing to begin. He is left to work in the
halls or some drab room to which the accused whom he is accused has free access. He is
threatened by the accused within inches ofpolice, prosecutors and judges, and nothing happens.
He or she must recount to the prosecutor - sometimes intimate, degrading and upsetting details of
unspeakable crimes- while standing in a crowded, noisy hallway with strangers milling around
and listening in9.

9
Victims of Violent Crime in New York City: An exploratory survey of perceived needs.” 1974;
If a criminal viciously kills someone and later is not found guilty by reason of insanity, society
will spend thousands of rupees supplying him with psychiatric treatment, special facilities,
correctional counseling, job pertaining, and legal aid. But the family of victim which may have
been shattered by the crime will be left to fend for itself. 10If this is the position of victim of
crime in developed country like U.S.A, the position of victim can be well imagined by any
person where police is corrupt and infrastructure inadequate.

Criminal Justice Delivery System, traditionally perceives a victim of crime as merely a source of
information and evidence. It assumes that the claims of a crime victim are sufficiently satisfied
by conviction of the crime perpetrator. This traditionally accepted assumption, though seems to
be right, just and convincing in the light of prominent functions of criminal law and his
(victim’s) faith in Criminal Justice System, in the light of current penological thinking, however,
seems to be unjust, unfair and inequitable when society and state are resorting to every possible
‘measure’ to ‘reform’ and ‘rehabilitate’ an offender and not displaying their equal concern for
compensating victims of crime.

However modem victimologists, feel that the traditionally accepted assumption is less persuasive
and ostensibly ‘unjust’ unfair and inequitable’ to victims of crime in the contemporary ‘offender-
oriented’ Criminal Justice System. A crime victim is an unfortunate recipient of ‘harm’ , Toss’ or
injury. Victim is a real sufferer for no fault of his. The prime responsibility of a State is to protect
limb, life and property of its subjects and a crime victim suffers because ofthe State’s failure in
protecting his limb, life and property, as the case may be.

Therefore, the State must be equally ‘fair’ and ‘just’ to a crime victim by designing a
comprehensive scheme for rendering justice to him. In most of the cases a victim of crime is
considered as an informer of the commission of a crime. It set the criminal law process in gear
by reporting it to the State machinery, i.e. the police, who in turn after inquiry and investigation
approaches a competent criminal court.

10
McDonald, F.William, Editor,Criminal Justice and the Victim; Sage Publications, Beverly Hills, London,
However, the police11, the first state agency with whom a victim of crime comes in contact, in
cases either show their indifferent attitude to him or professional insincerity and apathy to
register his complaint. Unfortunately in majority of the cases police treat him as an accused and
start harassing him under the guise of collecting adequate information from him for setting
directions of their investigations.

A victim/informant has no role to play in it unless the Investigation Officer concerned considers
it necessary. Further, if he is required to participate in the criminal justice process as a material
source of evidence i.e. prosecution witness, he puts himself in a position of some vulnerability.
He is at the mercy of questioning by prosecution and defence lawyer alike.

He has to identify the ‘suspects’ of the crime. He has also taken the risk of being intimidated by
the accused directly or through his friends or well wishers indirectly to dissuade and deter him
from deposing the truth.

Frequent adjournments and the consequential inordinate delays in disposal of cases coupled with
marginal or non- participation in the criminal proceedings and sentencing add further to his
miseries and frustrate All these circumstances in which a victim/complainant/witness is placed
make her/him feel not only dejected and humiliated but also he/she becomes a victim of
‘secondary victimization’ by the criminal justice system.12

In ultimate analysis justice to victims of crime requires, making the utmost endeavor and sincere
attempts to ensure that they as a matter of right, have an access to, and support from, the criminal
justice process. Such a Criminal Justice System not only warrants compensation to him for the
‘loss’ suffered and physical, mental or emotional ‘injury’ sustained by him but also expects his
effective participation in the criminal justice process.

Recently, the Committee on Reforms of Criminal Justice System, constituted under the
chairmanship of Justice Dr. V.S. Malimath, by the Ministry of Home Affairs, Government of
11
Criminal Justice system by Joanna Shapland, Jon Willmore and Peter Duff, pg 14
12
: Restorative Justice Published in Encyclopedia of Crime and Justice, 2nd edition, vol.3, 2002
India in its report submitted to the Government of India in March 2003, inter alia perceived that
‘justice to victims’ is one of the inseparable imperatives of the criminal justice system in India. It
recommends for a holistic ‘Justice’ to victims of crime by allowing them to participate in
criminal proceedings as a matter of right as well as to seek compensation for the loss or injury.13

The Definition of Certain Terms

Victim

The research work will focus on the victims of crime particularly women and children. The legal
term ‘the complainant’ is used in the Criminal Procedure Code. Before the Code of Criminal
Procedure (Amendment) Act, 2008, the word ‘victim’ was not defined in the Code. By this
amendment Section 2(wa)21 has been inserted in the Code of Criminal Procedure and under this
section the term “Victim” has been defined.14

Penal Justice System

The Penal Justice System is part of a larger entity known as the Criminal Justice System, a term
covering all those institutions which respond officially to the commission of offences, notably
the police, prosecution authorities and courts. It is often misleading or unsatisfactory to examine
the penal justice system in the isolation from the larger criminal justice system.

The term Penal Justice System used in the research work includes/covers not only the Penal
Justice System (which provides punishment for the offence committed) but also the whole
Criminal Justice System however the focus of study is on Criminal Procedure Code, 1973,
Probation of offenders Act, 1958, Juvenile Justice ( Care and Protection of Children) Act, 2000
and Protection of Women from Domestic Violence Act, 2005.

Classification of Victims

13
Malimath Committee on Reforms of Criminal Justice System
14
This amendment came into force on 31 st December 2009.
Women Victims

Although women may be victims of any of the general crimes such as ‘Murder’ , ‘Robbery’ ,
‘Cheating’ , etc, only the crimes which are directed specifically against women are characterised
as ‘Crimes Against Women’. Various new legislations have been brought and amendments have
been made in existing laws with a view to handle these crimes effectively. These are broadly
classified under two categories namely crimes under the Indian Penal Code (IPC) like Rape (Sec.
376 IPC), Kidnapping & Abduction for specified purposes (Sec. 363 - 373 IPC) , Homicide for
Dowry, Dowry Deaths or their attempts (Sec.302/304-B IPC), Torture - both mental and physical
(Sec. 498-A IPC), Molestation (Sec. 354 IPC) Sexual Harassment (Sec. 509 IPC), Importation of
girls (up to 21 years of age) (Sec. 366-B IPC) and crimes under the Special and Local Laws
(SLL) like Immoral Traffic (Prevention) Act, 1956, Dowry Prohibition Act, 1961, The
Prohibition of child Marriage Act,2006, Indecent Representation of Women (Prohibition) Act,
1986, and Commission of Sati (Prevention) Act, 1987.

There are too many situations in which women are victimized by their vulnerability and
dependence on the very persons to whom they look for respect, protection, and support, both in
family and business relationships. According to National Crime Record Bureau Report, 2010
offenders were known to the victims in 94.9% of rape cases during 2009. In many instances,
women are victimized because they are women, and have been socialized to play a role
established and perpetuated by a society which appears to condone this victimization through a
refusal to acknowledge the existence and severity of the victimization women experience in
many areas of their day-to-day life.
Child Victims
Children are easy victims. They are weak, frail and extremely vulnerable. Under certain age, they
are incapable of defending themselves, retaliating or even complaining and constitute, therefore,
ideal targets for victimization. Victimization of children is as old as mankind itself. Throughout
history and until the present day children have been subjected to a wide variety of abuses,
neglect and maltreatments.

The victimization of children is a universal phenomenon. Child abuse typically (though not
exclusively) takes place within the home and is perpetrated by those who are responsible for the
care and welfare of the child. This is clear from the Crime in India Report published by National
Crime Record Bureau that offenders were known to the victims in 94.9% of rape cases and there
is 7.6% increase in incidence of crime against children in 2009 over 2008. Cases of child rape
went up by 6.9% during 2007 over 2006 but decreased by 1.4% during 2007 over 2006.15

Child abuse may be divided into three broad categories: physical, mental and sexual with each
type divided, in turn, into several sub-types. Abuse may be classified, according to the social
context in which it takes place, into family abuse and institutional abuse. Family abuse, usually
perpetrated by natural, step or foster-parents, by parent substitutes, or by guardians, occurs
mainly in the home and is contextually different from institutional abuse directed against
children placed in institutional care ( orphanages, institutions for mentally defective or retarded
children , training schools, correctional institutions for juveniles, etc.)

Family abuse includes pushing women and children into Prostitution, Bonded Labour, Honour
Killing, Female Foeticide, Infanticide, Sati, Immoral Trafficking, etc. Institutional abuse may
occur in Nari Niketan, Juvenile Homes, Police Custody, Jails, Mental Asylums, Hospitals and
Sexual Harassment of working women at the place of their work. Some of these areas of concern
are discussed here in brief.

DOMESTIC VIOLENCE

15
Crime in India Report,2009 published in Dec.2010 site www.ncrb.nic.in visited on 8th April 2011 at 9:30PM
The universal phenomenon of domestic violence has seriously attracted the global attention
during the past few decades. Violence against women exists in almost every society irrespective
of caste, colour, sex, creed, status, religion, education etc. In India the phenomenon is viewed as
an outcome of patriarchal society and may take various forms like wife battering, torture for
dowry, sexual perversion, use of abusive language, humiliation etc. Most often it takes place in
secrecy, committed within the four walls of the matrimonial homes and went unreported. The
poor victims of domestic violence suffer in silence, considering as their fate accomplish. Often
they fear social stigma, involvement of family prestige, apprehension of possible relation,
financial dependency, future of children, attachment of religious sentiments etc, because of
which they prefer to remain silent, then to make such acts known to public.

Female Foeticide
A life cycle approach reflects the situation from conception and birth to adolescence to
womanhood. Female Foeticide means killing of foetus, after knowing the sex of the foetus.
Every year about 15 million girls are bom in India and despite being biologically stronger than
boys, almost one quarter of this number do not see their 15th birthday due to female foeticide.26
In 2009, 123 cases of foeticide were reported in the country as compared to 73 in the year 2008,
increased of 68.5% in these cases.16

Female Infanticide
Infanticide was probably one of the earliest crimes. It is the ultimate victimization; the
annihilation of a helpless, unaware and unsuspecting victim. This horrible, primitive crime has
not yet disappeared and probably never will. It is still practiced in some communities. In India’s
rural as well as urban areas, the family of the bride owes the family of the groom a substantial
dowry in the form of money, jewelry, and the household possessions. From childhood, the young
girl is neglected bodily and emotionally because she causes considerable dowry expenses to the
family. Many families even kill their female infants because they are unable to provide a suitable
dowry or do not want to.28 The most inhuman, uncivilized, barbaric and tragic event is still
taking place silently in India especially in the States of Tamil Nadu, Bihar, Gujarat, Rajasthan,

16
Crime in India Report,2009 published in Dec.2010 site www.ncrb.nic.in visited on 8th April 2011 at 9:30PM
Haryana , Punjab and Utter Pradesh.29 A total of 63 infanticide cases were reported in the country during
2009.

Incest

Incest is one ofthe most ghastly crimes but it remains most secret and subsists commonly than imagined.
Incest is defined as sexual intercourse between close relatives within prohibited degrees of relationship. It
is not an offence in India unless it falls under offence ofrape or adultery.

Rape

Rape is forcible ravishment of a woman. It means sexual intercourse with a woman without her
consent by force, fear, or fraud. In other words, rape is a violence of the private person of a
woman. It is an outrage by all canons. A rapist not only violates the victim’s personal integrity
but leaves indelible marks on the very soul of the helpless female. Rape is defined under Section
375 of Indian Penal Code 1860.

Punishment for rape is given under section 376 of IPC. After the landmark judgment of Supreme
Court in Mathura Rape Case,17 a number of substantial changes were introduced in the year
1983. The legal provisions of both the substantive and the procedural laws were amended to
provide proper justice to the woman victim. Despite stringent provisions of law against offence
of rape, it goes on increasing as it is evident from the table below, showing crime trends that
Dacoity and House breaking have shown declining trend over a period of 57 years, whereas Rape
has increased by 760.4% (from 2,487in 1971 to 21,397 in 2009 and Kidnapping and Abduction
by 543.6% (from 5,261 in 1953 to 33,860 in 2009).18

Dowry and Dowry Deaths

In India, most of the marital violence is clubbed under the problem of dowry. Dowry is one of
the major factors responsible for domestic violence. In spite of amendments in Criminal Law and

17
Tukaram Vs. State of Maharashtra AIR 1979 SC 185
18
Crime in India Report,2009 published in 2010Site www.ncrb.nic.in visited on 8th April 2011 at 9:30PM
Dowry Prohibition Act, 1961, women continue to get burnt in their homes for dowry. These
cases have increased by 2.6% over the previous year.19

Sati
Sati is yet another phenomenon peculiar to an illiterate conservative and traditional bound of
society of India. Sati means burning of a widow on the pyre of her husband. The Commission of
Sati (Prevention) Act, 1987, provides for punishment of death sentence for abettors of Sati,
irrespective of whether it is murder or suicide. The practice of Sati is on the wane in modem
times. No case was reported across the country during the year 2009 against 1 case reported from
Chhattisgarh in 2008.20

Molestation and Sexual Harassment

Modesty is to women, what fragrance is to flower. Any person using any word, or picture, or
gesture or act of sound with intention to insult the modesty of any women can be punished with
imprisonment up to one year. This is popularly known as sexual harassment. Similarly, any
person using criminal force on a woman with intention to outrage her modesty is liable for that
offence punishable with imprisonment up to two years. This is popularly known as molestation.
Both the offence ofmolestation and sexual harassment are cognizable and police is empowered to
investigate the cases without any permission from the Magistrate. By an epoch making judgment
the Supreme Court has laid down the guidelines and norms of effective enforcement of the basic
human right of gender equality and guarantee against sexual harassment at work places.
According to Apex Court “Sexual Harassment” includes such unwelcome behaviour (whether
directly or by implication) as physical contact or advances, a demand or request for sexual
favours, sexually coloured remarks, showing pornography and any other unwelcome physical,
verbal or non-verbal conduct of sexual nature.

In 2009 incidents of molestation and sexual harassment have decreased 4.2% and 9.9%
respectively over the previous year.39 The Union Cabinet has approved the Protection of
Women against Sexual Harassment at Workplace Bill, 2010. The bill intends to provide a legal
protection for women against sexual harassment at the workplace, both in public and private
sectors. Women workers can breathe easy because their right to lead a dignified life has a legal
stamp now.

19
ibid
20
ibid
Abduction and Kidnapping

Women and children becomes the victim of kidnapping and abduction for a variety of reasons in
the family and society. The motive behind kidnapping of unmarried girls or abducting married
women are mainly procurement of sexual relation, marriage, selling and prostitution for which
the punishment is imprisonment, which may extend from seven years to life. Over the years
cases of Kidnapping and Abduction have been increased from 5261 in 1953 to 33860 in 2009.

Prostitution and Trafficking of Women

Prostitution itself is not recognized as an offence under any law in India. However to prevent
sexual exploitation for commercial purposes; the act of procurement, inducing and taking away
of any woman, with intention to exploit for the purpose of prostitution is recognized as an
offence under the Immoral Traffic (Prevention),Act, 1956. An adult living in the earnings of
prostitution may also be liable for committing that offence. In Gaurav Jain v. Union of India, the
Supreme Court has given comprehensive instructions to the government for rescue and
rehabilitation of children of the prostitutes in the country.Cases under the Immoral Traffic
(Prevention),Act, 1956 have registered a decline of 6.9% in the year 2009 as compared to the
previous year.

Honour Killings

Honour Killing is the most grotesque and barbarous manifestation of gender discrimination in
the male-dominated society. In such an ethos, woman is the commodity possessed by the male
and the family’s honour is associated with her. If she deviates from social mores, she is supposed
to bring dishonour to the family whose prestige is restored by killing her.45 An honour killing is
the murder of a family or clan member by one or more fellow family members, when the victim
has brought dishonour upon the family, clan or community. The phenomenon of honour killing is
worldwide and it is not new. In India also the phenomenon of honour killing is centuries old. The
practice of honour killing is prevalent in a feudal set up with tribal hangover - Haryana, Delhi
rural area, Western Uttar Pradesh and Punjab and some areas in Rajasthan near Delhi and in
Islamic countries. About 300 women are killed every year in Pakistan and the corresponding
figure in Bangladesh is more than 200. Yemen, a small country, had about 400 cases of honour
killing in 1997. According to one estimate, about 10 per cent of murders in Punjab and Haryana
falls in the category of honour killing. Recently in the State of Haryana many couples who
married against the wishes of their parents or who married within their gotras are killed by their
family members or by the members of khaps.

U.N. EFFORTS TO ADDRESS VICTIM’S ISSUES

Fourth United Nations Conference on Women:-

In 1995, the Fourth United Nations Conference on Women in Beijing, China was a significant
step forward in the international arena for victims of domestic violence. The Conference’s final
document, the Platform for Action, is a powerful and progressive statement about the
empowerment of women and the imperative to eliminate violence against women in all forms.
Former first lady Hillary Rodham Clinton’s message was heard around the globe when she said,
“It is a violation of human rights when individual women are raped in their communities and
when thousands of women are subjected to rape as a tactic or prize of war. It is a violation of
human rights when a leading cause of death worldwide among women ages fourteen to forty-
four is the violence they are subjected to in their own homes. If there is one message that echoes
forth from this conference, it is that human rights are women’s rights.....and women’s rights are
human rights.”

Crime Prevention and Human Rights:-

The work of the United Nations in preventing abuse of power and violations of human rights is
long-standing, and among the results have been the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the Convention on the Prevention and
Punishment of the Crime of Genocide, the Convention on the Protection of All Persons from
Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
the Convention on the Rights of the Child, and the Convention on Elimination ofAll Forms
ofDiscrimination Against Women. The United Nations has also developed international
guidelines to reduce abuses against the elderly, the handicapped and the mentally ill, and has
drafted basic principles and guidelines on the reparation of victims of gross violations of human
rights and humanitarian law.

VICTIM PROTECTION UNDER THE STATUTE OF

INTERNATIONAL CRIMINAL COURT (ICC)

The International Criminal Court Statute was adopted on 17 July 1998 at Rome Conference
which is a historic event and is also raises a new ray of hope in compensatory jurisprudence.
Statute of ICC allows support, protection, reparation, participation of victims in Criminal Justice
System. Rome Statute does not limit the role of victims to that of a witness. Hence it goes further
than previous international courts and creates an example for national jurisdictions.

One of the great innovations of the statute of ICC and its rules of procedure and evidence is the
series of rights granted to victims. For the first time in the history of International criminal
justice, victims have the possibility under the statute to present their views and observations
before the court.
Participation
Participation before the court may occur at various stage of proceedings and may take different
forms. Although, it will be up to judges to give directions as to participation. Participation to the
court’s proceedings will in most cases take place through a legal representative and will be
conducted in a manner which is not prejudicial or inconsistent with the rights of the accused and
a fair and impartial trial. Victims can participate in all stages of the proceedings before the court
i.e. at pre trial stage. Victim’s participation and reparation section is responsible for assisting
victims with the organization oftheir Legal Representatives before this court.

Reparation
For the first time in the history of humanity, an international court has the power to order an
individual to pay reparation to the other individual. It is also the first time that an International
Criminal Court has such powers. Pursuant to the Article 75, the court may lay down the
principles for reparation for victims, which may include restitution, indemnification and
rehabilitation. The court may order this reparation to be paid through the victim’s fund. For this
victim has to file a written application, he may also apply for protective measures for the
purposes of confiscating property from the person prosecuted. The court has the option of
granting individual or collective reparation, concerning a whole group of victims or a community
or both.

Trust Fund for Victims

:- A Trust Fund in favour of victims has been created by Rome Statute which may collect funds
resulting from fines and orders for compensation issued against condemned persons as well as
voluntary contributions from Governments, International Organization, corporations or
individuals. The purpose of the fund is to channel money to victims. Sometimes this will be
money that the court orders an offender to pay as compensation. Funds can be allocated either to
individuals or to a collective group of persons. Providing justice to victims is important but so
too is providing them with help and compensation to enable them to rebuild their shattered lives.
Victims and Witness Protection

Learning from the experience of two adhoc International Penal Tribunals, Article 43 Paragraph
6 of the Statute has foreseen that the Registrar shall setup a victims and witnesses unit within the
Registry. This unit shall provide in consultation with the office of the prosecutor, counselling and
other appropriate assistance for witnesses, victims who are at risk on account of testimony given
by such witnesses as well as plan protective measures and security arrangements for them. The
Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual
violence. Thus the Unit shall in particular ensure the protection and security of all witnesses and
victims that appear before the court through appropriate measures and establish short and long
terms plans for their protection. Unit shall help victims who appear before the court as well as
witnesses to receive medical and psychological care. It shall also be incharge of the negotiation
of agreements with states concerning the resettlement on state territory of witnesses or victims
that are traumatized or threatened. Hence ICC has taken revolutionary measures in the interest of
victims of crime at international level and has set an example for nations to follow at national
level.

VICTIMOLOGY: CONSTITUTIONAL AND LEGISLATIVE

FRAME WORK IN INDIA

Victimology : Constitutional Framework in India

“The arch of the Constitution of India pregnant from its preamble, chapter III (Fundamental
Rights) and chapter IV (Directive Principles)is to establish an egalitarian social order
guaranteeing fundamental freedoms and to secure justice-social economic and political to every
citizen through rule of law. Existing social inequalities are needed to be removed and equality in
fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to
protective discrimination only through rule of law.”21
21
C. Ravichandran Tyer V. Justice A.M. Bhattacharjee (1995) 5 SCC 457, (para 14)
Preamble to our “suprema lex” contains goals to be achieved by the state which inter-alia talks
about social, economic and political justice. These objectives have been translated into
fundamental rights enshrined in Part III of the Constitution and Directive Principles of State
Policy. Part III of the Constitution weaves a pattern of guarantee for the victims of the crime. To
make this guarantee meaningful Article 32 of the Constitution provides effective enforcement of
these rights. The judiciary through judicial activism has widened the scope of these fundamental
rights by using broad ambit of these provisions to secure justice for the victims of crime.

One of the tools applied by the court for securing justice to the victims and for ensuring that
these fundamental rights do not become a mere rope of sand is to grant monetary compensation
to them. This ensures the dignity of the individual in a socialistic set up epitomizing restorative
justice.

First of all Article 14 of the Constitution embodies general principles of equality before law and
prohibits unreasonable discrimination. This is the most basic fundamental right guaranteed to
every person by Constitution itself and the word ‘any person’ in Article 14 very well covers
victims of crime.

In E.P. Royappa v. State of T.N.22Supreme Court gave a new dimension to equality principle. It
pointed out that Article 14 has highly activist magnitude. Court held that equality is a dynamic
concept with many aspects and dimensions and it can’t be cribbed, cabined and confined within
traditional and doctrinaire limits. From a positivistic point of view equality and arbitrariness are
sworn enemies: one belongs to the rule of law in a republic while the other to the whim and
caprice of an absolute monarch where an act is arbitrary, it is implicit in it that it is unequal both
according to the political logic and Constitutional law and is therefore violative of Article 14.

It may be therefore noted that the doctrine of reasonable classification based on nexus test is no
longer a paraphrase of Article 14 nor it is the objective and end of Article 14. The emphasis is
now on the rule that Article 14 strikes at arbitrariness. The new approach to Article 14 has now
been consistently adopted and applied by the courts in determining the true contents and reach of
equalizing principle.

22
AIR 1974 SC 555
In a landmark judgment Lucknow Development Authority v. M.K. Gupta23Supreme Court held
that if loss or injury is caused to a citizen by the arbitrary actions of the State employees, the
State is liable to pay compensation to him. Public authorities who are entrusted with statutory
functions cannot act negligently. Under our Constitution sovereignty is vested in the people.
Every limb ofthe constitutional machinery is obliged to be people oriented.

In case of Charan Lai Sahu v. U.O.I.24 the Constitutional validity of Bhopal gas leak disaster
(processing of claims) Act, 1985 was challenged. The court held that Act is valid as the state in a
capacity of ‘parens patrie’ (parent of the country) for protecting disabled victims of Bhopal gas
disaster is competent to represent the victims.

In this landmark case of Vishaka v. State of Rajasthan25 Supreme Court laid down exhaustive
guidelines to prevent sexual harassment of working women at their work places until legislation,
is enacted for the purpose. The court held that it is the duty of employer or other responsible
person in work places or other institutions, whether public or private to prevent sexual
harassment of working women.

VICTIMOLOGY : LEGISLATIVE FRAMEWORK IN INDIA

The Code of Criminal Procedure, 1973

The Code of Criminal Procedure is the first and probably the oldest legislation in India to deal
with the concept of compensation to the victims of crime. Though the victimological aspect
under the Code is of limited purport and is confined to compensation only but it has definitely
proved the way for improving the principles of compensatory jurisprudence.

23
(1994) 1 SCC 243
24
(1990) 1 SCC 663
25
AIR 1997 SC 3011
The Code of Criminal Procedure is based on the principle of presumption of innocence though
there are various provisions in the Criminal Procedure Code for providing justice to victims of
crime. But these provisions are scattered all over the Criminal Procedure Code.

In pursuance of the recommendations of the Law Commission of India in its 41st report43 a
comprehensive scheme for compensation to the victims of crime has been made in section 357
and section 357A of Criminal Procedure Code. Besides these two sections, other sections like
358, 359, 237, 250 also deal with compensation to victims of crime. Other provisions which are
important from the aspect of Victimology are proviso to section 24(8), Sections 320, 327, 378,
397, 473, 482, 437(5), and 439(2).

Right of Victim to Engage Advocate of his or her Choice

The court may permit the victim to engage advocate of his/her choice to assist the Special Public
Prosecutor.26

COMPOUNDING OF OFFENCES

A crime is considered a wrong against the society and the State. Therefore any compromise
between the accused person and the individual victim of the crime should not absolve the
accused from criminal responsibility. However, where the offences are essentially of a private
nature and relatively not very serious, the Code considers it expedient to recognize some of them
as compoundable offences and some others as compoundable only with the permission of the
court. While granting permission to compound an offence the court should act judicially and
should exercise a sound and reasonable discretion.27

26
Proviso to Section 24 (8) inserted.by the Code of Criminal Procedure (Amendment) Act, 2008
27
Rameshchandra J. Thakkar v. Assandas Parmanand Jhaveri, (1973) 3SCC884
The safeguard of the court’s permission is to prevent an abuse of the right to compound and to
enable the court to take into account the special circumstances of the case which may justify
composition. While granting permission to enter into the composition and accepting the same,
the chastened attitude of the accused and the commendable attitude of the injured complainant,
in order to restore harmony in A society, were taken into consideration by the court.

In case of non-compoundable offence which are not mentioned under section 320, Criminal
Procedure Code. The Court should consider facts and circumstances of each case and allow the
parties to compromise thereby to restore an amicable and harmonious relationship between the
parties which otherwise would likely to result in an enduring feud however such offences must
not seriously affect the interest of the public at large.28

Right to In-camera Trial

Court must be open to anyone who may like to hear the proceedings of the court although the
actual presence of the general public is not essential to fulfill the requirement of the section. This
general principle was embodied in this to ensure administration of justice with the provision
giving the presiding judge or the Magistrate at any particular person deciding upon the facts and
circumstances of the case for the ends of justice.29

The Supreme Court has laid down that trial of sexual offences must be conducted in camera and
it would not be permissible to print or publish any matter in relation to it except with the
previous permission of the court. Offences under Section 376 and Sections 376A to 376D of the
Indian Penal Code shall be tried as far as practicable by a court presided over by a woman.

Victim has a Right to Appeal in Case of Acquittal of Accused Person

Appeal against the order of acquittal is an extraordinary remedy. Section 378 deals with appeals
in cases of acquittals. According to the first four sub-sections of section 378, an appeal against an
order of acquittal can be preferred by the Government, in a case instituted upon complaint, by the
Government as well as by the complainant.
28
Baiju V. Sub Inspector of police , Karimanoor Police Station and another, 2007 CriLJ 1346 (kerala)
29
Naresh v. State of Maharashtra, AIR 1967 SC 1
The word complainant used in section 378(4) cannot be given a restricted meaning and cannot be
constructed so as to exclude the victim or the sufferer and who had faster information of the
occurrence. Accordingly, on the death of the complainant before filing of appeal order of
acquittal, the victim and eye-witnesses of offence are _ — competent to file appeal and continue
with the proceedings. In Keshav Swaroop v. Government of N.C.T.30 the Supreme Court said
that where there is glaring defect or manifest error in point of law, in exceptional cases, High
Court can allow a private party to file appeal against acquittal.

Right of Revision

High Court or Sessions Judge may call for and examine the record of any proceeding before any inferior
criminal court situate within it or his local jurisdiction for the purpose of satisfying itself or himself; to the
correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court. 31 The Sessions Court can enhance sentence in
exercise of its revisional jurisdiction.

Revision against acquittal- Revisional application filed by the complainant against the order of acquittal
passed by trial court in a police case can be exercised only in exceptional cases for limited purposes,
where the interest of public justice requires interference for correction of manifest illegality or to prevent
miscarriage of justice.

Where it was found that the trial court had failed to summon the eye-witnesses present at the time of
incident as well as the workers at power house, therefore, it was held that the acquittal of accused was
unmerited as it was based pm tainted evidence, tailored investigation, unprincipled prosecution,
perfunctory trial and on evidence of threatened and terrorized witnesses, so retrial of the case was ordered
in the instance case.32

30
AIR 1998 SC 999
31
Section 397 ofthe Criminal Procedure Code, 1973
32
Chandrabhan and another V. State of Rajasthan 2007 CriLJ (NOC) 470 (Raj.)
Right to Cancellation of Bail
The court which has released a person on bail may, if it considers it necessary so to do, direct
that such person be arrested and committed to custody. The court has power and discretion to
cancel the bail.

Right to Compensation
Section 357 provides an innovative scheme for compensating the victims of crime out of the fine
recovered from the convict. The concerned court, at the time of passing judgment may order the
disposal of the whole or partial fine amount for the following purposes:-

(a) It could be used for defraying the expenses properly incurred in the prosecution of the case

(b) Such amount could also be used for compensating the victim of any loss or injury caused by
the offence if the court feels that such victim is competent to recover compensation for the same
in a civil court.

(c) In case for conviction for causing death of another person or abetment thereof court may
order that the fine recovered should be paid as compensation to the persons who are entitled to
recover damages from the convict as per Fatal Accidents Act, 1885.

(d) In case of certain specified offences against property such as theft, criminal breach of trust
etc. if the property is restored to the lawful owner, the court may order that the bonafide
purchaser of the property, should be compensated out of the fine amount recovered.

Section 357(3) confers wider powers on the court to grant compensation as compared to section
357(1). However the liberal provisions of section 357(3) are applicable only if a sentence of fine
is imposed. In such cases the court may order the accused person to pay such amount as court
will specify in the order as compensation to the victim who has suffered loss or injury.

In Sarwan Singh v. State of Punjab33, Supreme Court held that object of section 357 is to provide
compensation to the persons who are entitled to recover damages from the person sentenced even
though fine does not form part of the sentence.

33
AIR 1978 SC 1525
In awarding compensation it is necessary for the court to decide whether the case is fit for
awarding compensation. If it is found that compensation should be paid, then the capacity of the
accused to pay compensation, has to be determined. In directing compensation the object is to
collect it and pay it to the victim, for imposing a default sentence for non-payment of fine would
not achieve the object. 34

Further it was stated that it is duty ofthe court to take into account the nature of crime, the injury
suffered, the justness ofthe claim for compensation, the capacity of accused to pay and other
relevant circumstances in fixing the amount offine or compensation.

Victim Compensation Scheme

The Fourteenth Law Commission, when the Criminal Procedure Code (Amendment) Bill, 1994
was introduced in the Rajya Sabha and when it was pending before the Parliamentary
Committee, was requested by the Central Government to undertake a comprehensive review
ofthe Criminal Procedure Code of 1973 and to make suitable proposals for reform.

The Law Commission, among other things, identified ‘Victimology and Compensating Victims’
for its deliberation, exhibiting its sincere concern for victims of crimes and justifying the needs
to ‘redesign and restructure’ the victim- compensatory legislative paradigm in India

Increasingly the attention of criminologists, penologists and reformers of criminal justices

system has been directing to victimology, control of victimization and protection of victims of
crimes.Crimes often entail substantive harm to people and not merely symbolic harm to the
social order. Consequently, the needs and rights of victims of crime should receive priority
attention in the total response to crime. One recognized method of protection of victim is
compensation to victim of crime.

34
ibid
Referring to the payment of compensation under the provision of section 357 of the Criminal
Procedure Code and expressing its reservations about the efficacy of statutory provisions and
recalling its meagre use by courts in India, the Law Commission asserted that the principles of
compensation to victim of crime need to be reviewed and expanded to cover all cases.

Compensation should not be limited only to fines, penalties and forfeitures realised but the State,
it asserted, should also render its assistance to victims of crimes out of its own funds in all cases
regardless of the fact whether an accused is acquitted or the perpetrator is not traced(but the victims is
identified ) or when the offence is proved. The State’s responsibility to make reparation to crime victims
can be justified on humanitarian, compassionate, and legal grounds. The State is also under a sort of
legal obligation to compensate victims of crimes, who suffered because of failure on the part ofthe state
to: maintain law and order: ensure peace, harmony and tranquility in society; protect people and their
property; and use its authority to suppress crime and punish offenders, Compensation from the State
can also be justified on the ground that the state system, namely its political, economic and social
institutions, generates crime by poverty, discrimination, unemployment and insecurity. The victim of
such a system, therefore deserve compensation from the State. 35

Victim Compensation Scheme ( penal provisions)36

(1) Every state Government in coordination with the central Government shall prepare a scheme for
providing funds for the purpose of compensation to the victim or his dependents who have suffered loss
or injury as a result of the crime and who require rehabilitation.

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

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

35
Fourteenth Law Commission Report -Chapter XV : Victimology
36
Section 357A of the Code of Criminal Procedure inserted by the Code of Criminal Procedure (Amendment) Act,
2008 and came into force on 31st day of December 2009
(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 recommendation 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 ofthe officer-in-charge ofthe police station or a
Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit”.

The Immoral Traffic (Prevention) Act, 1956

Trafficking in human beings violates the basic human rights of the affected

persons and leads to their exploitation in many ways. Human beings are trafficked for

various purposes such as for working in mines, in hazardous industries, as domestic

servants and for immoral purposes. The evil of immoral trafficking is eroding social

values and digging into the very foundation of human civilization. It reduces the woman

to the level of a commodity available for a price. Immoral trafficking in womep,has been

in prevalence in India since ancient period. Most of the trafficked women and girls are

sold in flesh market for prostitution. This immoral practice of buying and selling women

and converting them into prostitutes degrades them to such a level that these helpless

women very rarely think of coming out of the prostitution dens, known as red - light

areas, to lead a normal life. Health hazards of prostitutes are a normal phenomenon.

Frequent pregnancies, abortions by improper means and getting affected by venereal

diseases demoralize them in such an extent that they find solace in alcohol and drugs,

spread of HIV has further increased their miseries.37

Punishment for living on the earnings of Prostitution

It is a hard fact that a large number of persons, both men and women, run brothels and live on
the earnings of the prostitution, with a view to curbing this trend, the legislature has prescribed
punishment for living on the earnings of the prostitution.

The Act provides that any person over the age of eighteen years who knowingly

lives, wholly or in part, on the earnings of the prostitution of any other person shall be

punishable with imprisonment for a term which may extend to two years, or with fine

which may extend to one thousand rupees, or with both, and where such earnings relate

to the prostitution of a child, shall be punishable with imprisonment for a term of not less

han seven years and not more than ten years.

It further provides that where any person over the age of eighteen years is proved,-

(a) to be living with, or to be habitually in the company of, a prostitute; or

(b) to have exercised control, direction or influence over the movements of a

prostitute in such a manner as to show that such person is aiding abetting or

compelling her prostitution; or

(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until

37
Women and the Law by Dr. Dalbir Bharti APH Publishing Corporation New Delhi, pp. 151
the contrary is proved, that such person is knowingly living on the earnings of 38prostitution of
another person within the meaning of sub-section (1).39

Punishment is provided for procuring, inducing or taking person for the sake of

prostitution under section 5 of the Act. And person shall be punishable on conviction

with rigorous imprisonment for a term of not less than three years and not more than

seven years and also with fine which may extend to two thousand rupees, and if any

offence under this sub-section is committed against the will of any person, the

punishment of imprisonment for a term of seven years shall extend to imprisonment for a

term of fourteen years and if the person in respect of whom an offence committed under

this subsection, is a child, the punishment provided under this sub-section shall extend to

rigorous imprisonment for a term of not less than seven years but may extend to life.

Protective home or provided care and protection by Court

Sections 19 and 21 of the Act deal with the matters of protective homes and provided care and protection
by the court. A person who is carrying on, or is being made to carry on prostitution, may make an
application, to the Magistrate within the local limits to whose jurisdiction she is carrying on, or is being
made to carry on prostitution, for an order that she may be- (a) kept in a protective home, or (b) provided
care and protection by the court in the manner specified in the Act. On such a request the Magistrate may
pending inquiry direct that the person be kept in such custody as he may consider proper, having regard to
the circumstances of the case.40

If the Magistrate after hearing the applicant and making such inquiry as he may consider necessary,
including an inquiry by a Probation Officer appointed under the Probation of Offender Act, 1958, (20 of
1958) into the personality, conditions of home and prospects of rehabilitation of the applicant, is satisfied

38
Section 4( 1) of the Immoral Traffic (Prevention) Act, 1956
39
Section 4(3) of the Immoral Traffic (Prevention) Act, 1956
40
Section 19 ofthe Immoral Traffic (Prevention) Act, 1956
that an order should be made under this section, he shall for reasons to be recorded, make an order that
the applicant to be kept in a protective home, or in a corrective institution, or under the supervision of a
person appointed by a Magistrate for such period as may be specified in the order.

The State Government may in its discretion establish as many protective homes and corrective institutions
under this Act as it thinks fit and such homes and institutions when established shall be maintained in
such manner as may be prescribed.

Rehabilitation of Rescued Prostitutes:-

The Supreme Court of India in Gaurav Jain v. Union of India 41 gave directions for the rehabilitation of
the victims of the prostitution. Court said it is the duty of the State and all voluntary non-government
organizations and public spirited persons to come into their aid to retrieve them from prosecution,
rehabilitate them with a helping hand to lead a life with dignity of person, self-employment through
provisions of education, financial support, developed marketing facilities as some of major avenues in
this behalf.

Marriage is another important object to give them real status in society. Housing, legal aid, free
counseling, assistance and all other similar aids and services are meaningful measures to ensure that
unfortunate fallen women do not again fall into the trap of red light area contaminated with foul
atmosphere. Economic rehabilitation is one of the factors that prevent the practice of dedication of the
young girls to the prostitution as Devadasis, Jogins or Venkatasins. Their economic empowerment and
education gives resistance to such exploitation however, economic programmes are necessary to
rehabilitate such victims of customs or practices.

The rescue and rehabilitation of the child prostitutes and children should be kept under the nodal
department, namely, Department of Women and Child Development, under the Ministry of Welfare and
Human Resource, Government of India. It would device suitable schemes for proper and effective
implementation.

41
AIR 1997 SC 3021
The institutional care, thus would function as an effective rehabilitation scheme in respect of the fallen
women or the children of fallen women even if they have crossed the age prescribed under the Juvenile
Justice Act. Time to time Supreme Court has given directions to the Central Government, State
Government and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes,
child prostitutes, and the neglected juveniles.

They should take measures to provide them adequate safety, protection and rehabilitation in the juvenile
homes manned by qualified trained social workers or homes run by NGOs with the aid and financial
assistance given by the Government of India or State Government concerned.

The Prohibition of Child Marriage Act, 2006

Having realized the ineffectiveness of the Child Marriage Restraint Act, 1929, the Indian Legislature
enacted the Prohibition of Child Marriage Act, 2006 (Act 6 of 2007). This Act provides for stringent
penal action against those who indulge in solemnization of child marriage. The title of this new Act uses
the word “prohibition” whereas the Act of 1929 had used the word “restraint”. Now solemnization of
child marriage is punishable with rigorous imprisonment of up to two years and fine which may extend to
one lakh rupees. Offences under this Act are cognizable and non-bailable, notwithstanding anything
contained in the Code of Criminal Procedure, 1973.

This Act provides for the prohibition of solemnization of child marriages and makes child marriages to be
voidable at the option of contracting party.42

The Commission for Protection of Child Rights Act, 2005

This is an Act to provide for the constitution of a National Commission and State Commissions
for Protection of Child Rights and Children’s Courts for providing speedy trial of offences
against children or of violation of child rights and for matters connected there with or incidental
thereto.

42
Section 3 of the Prohibition of Child Marriage Act, 2006
India participated in the United Nations (UN) General Assembly Summit in 1990, which adopted
a Declaration on Survival, Protection and Development of Children and India has also acceded to
the Convention on the Rights of the Child (CRC)’on 11th December, 1992. Convention on the
Rights of the Child is an international treaty that makes it incumbent upon the signatory States to
take all necessary steps to protect children’s rights enumerated in the Convention. The UN
General Assembly Special Session on Children held in May, 2002 adopted an

outcome Document titled “A World Fit for Children” containing the goals, objectives, strategies
and activities to be undertaken by the member countries for the current decade. Government
enacted a law relating to children to give effect to the policies adopted by the Government in this
regard, standards prescribed in the CRC, and all other relevant international instruments. In order
to ensure protection to right of children one of the recent initiatives that the Government has
taken for Children is the adoption of National Charter for Children, 2003.
RIGHTS AND STATUS OF VICTIMS OF CRIME WITH SPECIAL
FOCUS ON WOMEN AND CHILDREN

Victims should be treated with compassion and respect for their dignity. They are entitled to
access to the mechanisms of justice and to prompt redress, as provided for by national
legislation, for the harm they have suffered." Strange and ironical as it may sound, the
administration of criminal justice is not much concerned with the victims of crime except that in
a few cases some marginal action is possible to render limited or token help to the victims.

The entire focus of the criminal justice system is on the offender; to punish him or to seek his
reformation and rehabilitation with all the resources and goodwill available through the courts
and other governmental and non-governmental agencies. Efforts are made to understand his
personality and the individual and social factors which might have contributed to his criminal
behaviour. The victims of the crimes are, on the other hand, ‘the forgotten people in the system’.

Rights of Victims of Crime in Criminal Justice System

The study of existing legal framework in relation to rights of victims of crime reveals that except
in the area of providing compensation, very little has been done either statutorily or through
schemes to address the entire range of problems faced by victims of crime.

No doubt in an adversial system, each attempt is made to deliver justice from the point of view
of an accused. Adversial system follows the simple rule of criminal jurisprudence that 10 culprits
are justified to be acquitted than the hanging or prosecution of an innocent one.

Indian system of criminal justice is accused oriented. The rights of victims of crime are often
overlooked. Unlike the accused, victims have virtually no rights in criminal proceedings and
proceedings are supposedly conducted on their behalf by State agencies.
 Right from the beginning of a trial till the final conclusion, attempts are made to benefit the
accused, sometimes even at the cost of victim’s sentiments. Criminal justice system though pro-
accused, gives certain rights to the victims of crime also. But these rights are scattered in various
enactments such as Indian Penal Code, Indian Evidence Act and the Criminal Procedure Code.
Because of less awareness, most of these rights remain unexercised.

The Criminal Procedure Code, 1973

Before the Code of Criminal Procedure (Amendment) Act, 2008, the word ‘victim’ is not
defined, only the legal term ‘the complainant’ is used in the Criminal Procedure Code. By this
amendment section 2(wa)43 has been inserted in the Code of Criminal Procedure which define
the term “victim”. According to this provision “victim’ 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.

The victim/complainant could set the criminal justice mechanism in motion by giving
information to the police which is expected to reduce it into writing.44 The victim as an informant
is entitled to a copy of the First Information Report (FIR) “forthwith, free of cost”.45

Where the officer-in-charge of a police station refuses to act upon such information, the victim
can write to the Superintendent of Police who is then expected to direct investigation into the
complaint. If the police do not register the report then victim can give a complaint to a
Magistrate, who will in turn examine the complainant on oath and enquire into the case
himself/herself or direct investigation by the police before taking cognizance. The victim
thereafter does not participate in the investigation except by being called to confirm the identity
of the accused or the material objects, if any, recovered during the course of investigation.

A crime is a wrong not only against the individual victim but also against the State. It is because
of this consideration that the State, participates in a criminal trial as party against the person
accused of crime more particularly if the crime is a cognizable offence. The Public Prosecutor or
Assistant Public Prosecutor is the counsel for the State in such trials. The Public Prosecutor or
Assistant Public Prosecutor may appear in any court, without any written permission from any
authority.
43
Come into force on 31 st December, 2009
44
Section 154(1) of the Code of Criminal Procedure, 1973.This is registered as the first information report (FIR)
45
Section 154(2) ofthe Code of Criminal Procedure, 1973
 A private counsel can be engaged by the victim who shall assist the Public Prosecutor and can
submit written argument after the evidence is closed. The Magistrate himself, inquiring into or
trying any case, can permit the prosecution to be conducted by any person other than police
officer below the rank of Inspector but no police officer shall be permitted to conduct the
prosecution, who has taken part in the investigation of an offence.

Court may permit the victim to engage an advocate of his choice to assist the Special Public
Prosecutor. Proviso to section 24(8) has been introduced in order to help the victims to give a
more active role in the dispensation of criminal justice. In other words, the purpose of the
proviso is to have active participation ofthe victims in the justice delivery system. After all it is
the victim who sets the criminal law into motion and it is he who is the affected party. A reading
of the said proviso under section 24(8) ofthe Code of Criminal Procedure would clearly show
that the Court concerned can permit the victims to engage an advocate of his choice to assist the
prosecution.

Proviso of Section 24(8) Cr. P.C. speaks about the assistance to prosecution. Therefore it implies
that the role ofthe Prosecutor is also to be shared by the victim’s counsel by way of assisting the
prosecution even if it is to a limited extent. Proviso to Section 24(8) of Criminal Procedure Code
is in other words an expansion of Section 301 of the Criminal Procedure Code.

Both proviso under Section 24(8) and Section 301 Criminal Procedure Code will have to read
together. Engaging of an advocate should only mean to have an effective assistance. That is a
reason why the word ‘advocate’ has been incorporated under section 24. The definition of a
‘pleader’ is wider which has to be read in the context of section 301 Criminal Procedure Code
and the definition of word ‘advocate’ would mean an active participation in the prosecution
through a counsel. Therefore in order to appreciate the same this Court will have to look into the
object and reasons as well as a simple interpretation ofthe provisions. The legislature has taken
into consideration of section 301 Criminal Procedure Code while introducing the proviso to
section 24(8).46

46
Madras High Court discussed in detail the Section 301 and Proviso to section 24(8) in Sathyarani Ponrani
v.Samuel Raj dated 07/07/ 2010
Hence on a reading of Section 301 together with proviso under Section 24(8) Criminal Procedure
Code, this Court is of the opinion that they only complimentary with each other by providing
more access to an aggrieved party to assist the prosecution. Section 301 of Criminal Procedure
Code speaks about the power of the Public Prosecutor to conduct the prosecution.

A conjoint reading of Section 301 and 24(8) would make it clear that it is the Public Prosecutor
who conducts the case but it does not mean that a lawyer engaged by a victim shall not be
allowed to supplement the conducting of the case by the Prosecutor. A lawyer has to render his
assistance in three different ways. He has to render assistance to the victims, to the prosecution
and an officer of the Court.

Therefore this Court is of the opinion that a combined reading of section 301 and proviso under
section 24(8) would make it clear that a lawyer can be engaged to argue and in an appropriate
case with the permission of the Court to examine the witnesses.

Further a reading of the above said provision would show that Section 301 Speaks about the
instructing a pleader whereas Section 24(8) proviso speak about engaging a lawyer. Therefore
under Section 301 a party can engage a lawyer and conduct the case along with the Public
Prosecutor.47

Hon’ble Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat48 noted that a Public
Prosecutor is an officer of Court but there are instances in which Public Prosecutor is either not
competent or acts only on the instruction given by the State and a Public Prosecutor may not be
aware of the facts which the victim is in possession of. A Public Prosecutor is instructed by
police and not by victim. In as much as the victim seeks to assist prosecution there cannot be any
prejudice since what is sought to be made is only to assist the prosecution not to replace the
prosecution. A Public Prosecutor conducts the case with a sense of detachment whereas the
victim is attached to the case.

A decision made in a case does not impact a Public Prosecutor which is not the case with the
victim who is the affected party. Thus the introduction of proviso to subsection 24(8) is to
provide an adequate opportunity to the victim to take part in the criminal proceeding.

47
ibid
48
(2004)4 SCC158
Recording of Statement of Rape Victim at her Place

To save from the embarrassment of being summoned to the police station, to stop the further
humiliation of the victim of rape by the police officers in the police station and avoid to give
statements in front of strangers regarding the commission of offence of rape, the statement of
rape victim shall be recorded at her residence or at a place of her choice and as far as practicable
by a woman police officer in the presence of her parents or guardian or near relatives or social
worker of the locality.49 Further an investigating police officer can by written order require the
attendance before himself of any person who is acquainted with the facts or circumstances of the
case, 01 and person is within the limits of the police station.50

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(l).There is a public policy behind this legislative prescription which keep juveniles and
females away from police company except at their residence.

These provisions will spare the victims of the agony of visiting police stations and answering
inconvenient - obscene in many cases - questions in the presence of unknown persons. While
going to attend Court, complainant or witnesses shall not be required to accompany a police
officer or shall not be subjected to unnecessary restraint, inconvenience and they are not required
to give any type of security except their own bond. This provision safeguards and protects the
personal liberty of complainant or witnesses as enshrined in Article 21 of the Constitution.

49
Proviso to Section 157(1) of the Code of Criminal Procedure, 1973 inserted by the Code of Criminal Procedure
(Amendment) Act, 2008
50
Section 160 (1), ofthe Code of Criminal Procedure, 1973
Medical Examination of the Victim of Rape

The crime of rape is a major problem in India as is evident from the reports in the press as well
as official statistics. Most ofthe time accused persons have gone free because of poor evidence
gathering and as well as other lacunae in the law. In rape cases, the prosecution can secure a
conviction based solely on the testimony of the rape victim, provided the testimony is cogent,
consistent and inspiring confidence. But in practice judges and the police give significant weight
to the medical examination. Thus medical examination ofthe accused as well as ofthe victim
ofrape plays a crucial role in conviction ofthe accused. Medical examination ofthe accused
person at the request of police officer and person accused of rape is conducted by registered
medical practitioner51 and the medical examination of female must be made by female medical
officer with strict regard to decency.

Special provision is inserted in the Criminal Procedure Code so that courts get the accurate and
prompt report of the medical examination of the victim of rape. According to this provision,
during investigation of the offence of commission of rape or attempt to commit rape, the victim
of a rape is proposed to examine her person by a registered medical practitioner employed in a
hospital run by the Government or a local authority and in the absence ofsuch a practitioner by
any registered medical practitioner.

Woman shall be sent to registered medical practitioner with her consent or with the consent of a
person who is competent to give consent on her behalf. Such woman shall be sent to registered
medical practitioner within 24 hours of the commission of the offence of rape.52

Such registered medical practitioner shall without delay examine the person of the victim of rape
and prepare a report of his examination in detail including name address, age, general mental
condition and injuries on the person of the woman, reasons for the conclusion arrived,
51
Sections 53, 53A and 54 ofthe Code of Criminal Procedure, 1973.
52
Section 164A of the Code of Criminal Procedure, 1973 inserted by Criminal Procedure Code (Amendment) Act,
2005.
specifically record the consent of the woman or any person competent to give consent on her
behalf for medical examination, exact time of commencement and completion of the
examination. And registered medical practitioner shall without delay forward this report to the
investigating officer who shall forward the report to the Magistrate. It is binding to attach report
of medical examination of the victim of rape must be attached with the investigation report sent
by police to the Magistrate.53

Investigation to be Completed within 3 Months in Case of Child Victim

Children are the most vulnerable section of the society due to their immature understanding and
weak physical strength. Law has made special provisions for their protection and overall
development of their personality. When an offence is committed against the child, it will
adversely affect the mental and physical health of the child. In most ofthe cases police are unable
to investigate the case within a period of short span, this inefficiency on the part of police further
aggravate the miseries of the child victims specially the victims of rape.

To prevent this further victimization, legislature has made the investigation procedure time
bound by providing that the investigation in relation to rape of a child may be completed within
three months from the date on which the information was recorded by the officer-in-charge of
the police station.54

Mandatory Judicial Inquiry in Case of an Alleged Rape on a Woman

Section 176 of the Code of Criminal Procedure has been amended to provide mandatory judicial
inquiry in case of custodial rape of a woman.55 When rape is alleged to have been committed on
any woman while such woman is in the police custody or in any other custody authorized by the
Magistrate or the Court, in addition to the inquiry or investigation held by the police, an inquiry

53
Section 173(2) (h) ofthe Code of Criminal Procedure, 1973.
54
Section 173 amended by the Code of Criminal Procedure (Amendment) Act, 2005
55
Section 173 amended by the Code of Criminal Procedure (Amendment) Act, 2005
shall be held by the Judicial Magistrate, or the Metropolitan Magistrate as the case may be,
within whose local jurisdiction the offence has been committed.56

Inquiry or Trial shall be Completed within a Period of Two Months in Case of Rape

Supreme Court has consistently maintained that the right to speedy trial is part of guarantee of
the fundamental right to life and personal liberty. The Law Commission of India in its ‘Report on
Delays and Arrears in Trial Courts recommended that a criminal case should be disposed off
with in six months,57Right to speedy trial is a fundamental right In every inquiry or trial, the
proceedings shall be held as expeditiously as possible. Keeping in view the Supreme Court
judgments and Law Commission report, legislature has amended the Criminal Procedure Code
and made a provision that when the inquiry or trial relates to an offence of rape, the inquiry or
trial shall be completed within a period of two months from the date of commencement ofthe
examination of witnesses.58

No Unnecessary Questioning Regarding Past Character of Victim

In Delhi Domestic Working Women’s Forum v. Union of India59, the Supreme Court observed
that the victims invariably find the trial of an offence of rape a traumatic experience. The
experience of giving evidence in court has been negative and destructive and the victims often
expressed that they considered the ordeal of facing cross-examination in the criminal trial to be
even worse than the rape itself. Keeping in view the observation of the apex court, legislature has
amended the Evidence Act, thereby giving protection to a victim of rape from unnecessary
questioning about her past character.

The Indian Penal Code, 1860

56
Section 173 (1 A)(b) ofthe Code of Criminal Procedure, 1973
57
Tiwana, Mandeep Article on ‘Criminal Justice Reforms’ published in The Tribune 8 July, 2006
58
Proviso to Section 309(1) of the Code of Criminal Procedure, 1973 inserted by the Code of Criminal Procedure
(Amendment) Act, 2008
59
1995(1)SCC 14
 Some sections of the society are vulnerable due to their age, mental condition or physical
strength. It is the duty of a welfare state to protect these sections of the society. Article 15(3) of
the Constitution provides that ‘Nothing in this article shall prevent the state from making any
provision for women and children’. Further article 39(e) provides that the tender age of children
is not abused. Clause (f) of article 39 stipulates that children are to be given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity and that youth
should be protected against exploitation and against moral and material abandonment. Following
provisions of the Indian Penal Code gives protection especially to women and children.

Bar to Disclose the Identity of the Victim of Certain Offences

Section 228-A has been inserted by the Criminal Law (Amendment) Act, 1983, with a view to
protect identity ofrape victims from public glare. In our country, the stigma attached to a rape
victim is much more than the stigma attached to a person accused of rape. There have been
instances, where sensitive cases have been sensationalized to the detriment of the rape victims.

In order to protect their interest, this section has been enacted which makes the publishing or
revealing the identity of any rape victim an offence. However, proceedings of police officials in
charge of investigation and a publishing or printing of judgments of High Courts or the Supreme
Court is excluded from the provisions of this section.

The section also protects publication made with the consent ofthe victim in writing or the
guardian of the victim, where the victim is a minor or a person of unsound mind. But, even such
authorization shall be given only to a recognized social welfare institution.

Abetment of Suicide of Child

If any person under 18 years of age commits suicide whoever abets the commission of such
suicide shall be punished with death or imprisonment for life or imprisonment for a term not
exceeding 10 years and shall also be liable to fine.60

60
Section 305 ofthe Indian Penal Code. 1860
Protection to the Unborn, Newborn or Other Children from being Killed or Abandoned

The offences relating to children include causing of miscarriage, injuries to unborn children,
abandonment and exposure of infants and concealment of births and disposal of dead bodies of
children.These provisions are for the protection of children.61

In our country where birth of a girl child is still considered a curse and a burden, female foeticide
and female infanticide is very high,62 such types of provisions in form of protection are desirable.

The Juvenile Justice (Care and Protection of Children) Act, 2000

The Constitution has in several provisions including Article 15(3), Article 24, Article 41(e) and
(f), 45, 47 impose on the State a primary responsibility of ensuring that all the needs of children
are met and that their basic human rights are fully protected. Besides provisions for the
protection of rights of the child in the Constitution, on International level also the General
Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20
November, 1989 and this Convention has prescribed a set of standards to be adhered to by all
state parties in securing the best interests of the child.

Further the Convention on the Rights of the Child emphasis’s social reintegration of child
victims, to the extent possible, without resorting to judicial proceedings. And the Government of
India has ratified the Convention on the 11th December, 1992, so it is expedient to re-enact the
existing law relating to juveniles bearing in mind the standards prescribed in the Convention on
the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of

61
Sections 312-318 ofthe Indian Penal Code, 1860
62
the Parliament in 1994 enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994.
Juvenile Justice, 1985 (the Beijing rules), the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (1990) and all other relevant international instruments.

Observation Homes

The State Government may establish and maintain either by itself or under an agreement with
voluntary organizations, observation homes in every district or a group of districts, for the
temporary reception of any juvenile in conflict with law during the pendency of any inquiry. If
the State Government is of opinion that any institution other than a home established or
maintained under the Act, is fit for the temporary reception of juvenile in conflict with law
during the pendency of any inquiry, it may certify such substitution as an observation home. The
State Government may, frame rules for the management of observation homes, and the manner
in which, the certificate of an observation home may be granted or withdrawn. Every juvenile
who is not placed under the charge of parent or guardian and is sent to an observation home shall
be initially kept in a reception unit of the observation home for preliminary inquiries, care and
classification for juveniles according to his age group, giving due considerations to physical and
mental status and degree of the offence committed.63

Special Homes
The State Government may establish and maintain either by itself or under an agreement with
voluntary organizations, special homes in every district or a group of districts, for reception and
rehabilitation of juvenile in conflict with law. If the State Government thinks that any institution
other than a home established or maintained under the Act is fit for the reception of juvenile in
conflict with law to be sent there, it may certify such institution as a special home. The State
Government may frame rules for the management of special homes, including the standards and
various types of services to be provided by them which are necessary for re-socialisation of a
juvenile, and the circumstances under which and the manner in which, the certification of a
special home may be granted or withdrawn. Such rules may also provide for classification and

63
Section 8 ofthe Juvenile Justice (Care and Protection of Children) Act, 2000
separation of juvenile in conflict with law on the basis of age and the nature of offences
committed by them and his mental and physical status.64

Duty of the Juvenile Justice Board

Where a Board is satisfied on inquiry that a juvenile has committed an offence, then the Board
may, if it thinks so fit,-

(a) allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit person
executing a bond, with or without surety, as the Board may require for the good
behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the
care of any fit institution for the good behaviour and well-being of the juvenile for any
period not exceeding three years;

(g) make an order directing the juvenile to be sent to a special home for a period ofthree
years.

The Board may, if it is satisfied that having regard to the nature of the offence and the
circumstances of the case it is expedient so to do, for reasons to be recorded reduce the
period of stay to such period as it thinks fit. The Board before passing an order shall take
into consideration the findings of the social investigation report on juvenile submitted by
a probation officer or a recognized voluntary organization. Where an order under clause
(d), clause (e) or clause (f) above is made, the Board may in the interest of the juvenile

64
Section 9 ofthe Juvenile Justice (Care and Protection of Children) Act, 2000
 and of the public, make an order that the juvenile in conflict with law shall remain under
the supervision of a probation officer named in the order during such period, not
exceeding three years as may be specified therein.
But if at any time afterwards, it appears to the Board on receiving a report from the
probation officer or otherwise, that the juvenile in conflict with law has not been of good
behaviour during the period of supervision or that the fit institution under whose care the
juvenile was placed is no longer able or willing to ensure the good behaviour and well-
being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile
in conflict with law to be sent to a special home.

Restoring Victims

The proponents of restitution place too much emphasis on financial restitution and
reparation of material damage. Such emphasis is due to an inadequate understanding of
the way in which crime harms people and of what the offender can do to help to restore
the victim to the material, psychological and relational state they were in before the crime
was committed.

But according to proponents of restorative justice, the main reason crime is wrong and
requires some response is not because it is an offence against society, but because it is ‘a
violation of a person by another person’. It is not denied that ‘ the effects of crime ripple
out touching many others’ and that society also has a legitimate interest in how the crime
is dealth with, but it is asserted that these ‘public dimensions’ should not be the starting
point for consideration of what to do about a crime. Rather our starting point should be
the fact that one person has been harmed by the wrongful actions of another.

RESTORATIVE JUSTICE

Restorative Justice provides an entirely different way of thinking about crime and victimizations.
Under previous criminal justice paradigms the state was viewed-as the primary victim of
criminal acts, and victims and offenders played passive roles. Restorative justice recognizes
crime as first and foremost being directed against individual people. It assumes that those most
affected by crime should have the opportunity to become actively involved in resolving the
conflict.

The emphasis is on restoration of losses, allowing offenders to take direct responsibility for their
actions, and assisting victims in moving beyond their sense of vulnerability and achieving some
closure. These goals stand in sharp contrast to those of traditional paradigms, which focused on
past criminal behaviour through ever-increasing level of punishment.

Restorative justice attempts to draw upon the strength of both, offender and victim, rather than
focusing upon their deficits. While denouncing criminal behaviour, Restorative Justice
emphasizes the need to treat offenders with respect and to reintegrate them into the larger
community in ways that can lead to lawful behaviour.

It represents a truly different paradigm based upon the following values:-

1. Restorative justice is far more concerned about restoration of the victim and victimized
community than with ever more costly punishment ofthe offender.

2. Restorative Justice elevates the importance ofthe victim in the criminal justice process,
through increased involvement, input and services

3. Restorative Justice requires that offenders be held directly accountable to the person and/or
community that they victimized.

4. Restorative Justice encourages the entire community to be involved in holding the offender
accountable and promoting a healing response to the needs of victims and offenders.

5. Restorative Justice places greater emphasis on the offender accepting responsibility for his or
her behaviour, and making amends whenever possible than on the severity of punishment.

6. Restorative Justice recognizes a community responsibility for social conditions that contribute
to offender behavior. 65

65
Restorative Justice - Mark Umbreit Published in Encyclopedia of Crime and Justice 2nd edition , Vol.3,2002 p.78
Techniques of Restorative Justice
To practice restorative justice certain innovative techniques are needed. The following are
techniques ofrestorative justice

1. Victim Offender Mediation

2. Family Group Conferencing

3. Community Participation

4. Community Service Programmes

5. Restitution which includes compensation, victim compensation programmes, victim

assistance programmes

1. Victim-Offender Mediation

In victim-offender mediation meetings are organized to give offenders chance to take active
steps to make voluntary reparation to their victims. Such reparation extends much further than
financial compensation. It includes an apology and an explanation of how the crime can be
therapeutic for victims and usually has a visible impact upon the offenders, who have to face up
to the reality of what they have done. Offenders can restore their own reputations, to some extent
through reparation and can be better prepared for reintegration into mainstream of society by
having resolved their guilt in this way.

2. Family Group Conferencing

It is essentially an extension of victim offender mediation. It includes more parties—offender’s

family, victim’s family or supporters and community contracts of offender who may be able to
offer support or help (a teacher, employer, neighbour, youth worker, church, contract etc.)
Family group conferencing allows offender’s family to share the blame and directly witness the
harm caused and most importantly an exploration not only of how the offender can atone but also
how to keep out of trouble in future and hence it includes community participation.

3. Community Participation

Support for victims most often occurs through the victim’s own personal acquaintances or
relatives and this is the most natural source of assistance and usually the most valued. The
voluntary organizations for victim’s support try to fill up the gap by offering practical help,
support and consolation to victim on a local basis. This community concern for victim helps to
overcome the social distrust and sense of alienation that afflict many victims of crime. It helps to
restore the victim materially psychologically and socially. Community support also helps the
offenders to find job, counselling, restraining drug or alcohol, literacy and education,
accommodation for homeless, support for isolated and for the provision of activities to release
energies or encourage social integration. This is an expression of community’s feelings of
responsibility for re-incorporating their deviant members and supporting those that have been
damaged by their experiences.

4. Restitution Includes

Compensation Restitution in criminal victim relationship means reparation of victim’s loss or

better restoration of his position and his rights that were damaged or destroyed by and during the
criminal attack. It can be understood as:- restitution. It includes both victim assistance
programmes and victim compensation programmes. Under Victim Assistance Programmes the
victims are provided with a number of services like counseling, referral to various agencies and
information intended to help victims in coping with the emotional, social and practical
consequences of crime.66

66
See for further detail Compensation to Victims of Crime American Jurisprudence (2d) Vol.21 A, 1981,The Lawyers
Co-operative Pub.Rochester,Newyork Co. 14694 BancroftWhitney Co.San Franscisco, California, 94107
CONCLUSION AND SUGGESTIONS

Crime is a product of society, social conditions and a product of situations. No one is born
criminal. “Every saint has a past and every sinner has a future,” goes a popular saying. Hindu
Jurisprudence contemplates penance and meditation for criminal to have both prayaschita and
reformation. Every individual including criminal has got a divine spark and what is required on
our part is to kindle and rekindle it to enable the society to redeem and, to reclaim him and to
restore and rehabilitate him in society as a useful and productive human being. Purpose of
punishment in criminal cases is both punitive and reformative.

The purpose is that the person found guilty of committing offence is made to realize his fault and
is deterred from repeating such acts in future. The reformative aspect is meant to enable the
person concerned to relent and repent for his action and make himself acceptable to the society
as a useful social being. 67

67
Karamjit Singh V. State AIR 2000 SC 3457.
SUGGESTIONS
A lot of work is needed to be done to give crime victim its well deserved place in society and to
ensure his effective restoration and rehabilitation. For this purpose there are following
suggestions:-

1) Amendment in Section 357 of Criminal Procedure Code

:- Section 357 should be amended. An explanation should be inserted in it for the purpose of
recording reasons for not awarding compensation, as it was suggested by Law Commission in its
42nd Report. At the time of sentencing the accused gives compensation i.e. rupees 25,000/- in
case of bodily injury not resulting in death, rupees, 1 lakh in case of death should be awarded, as
suggested by Law Commission in its 152nd report. Parliament has not given effect to these
recommendations of the Law Commission. Periodically the amount of compensation should be
revised.

2) Grant of Compensation by Lower Courts

Lower courts should also use the power to grant compensation under Section 357 of Criminal
Procedure Code. Supreme Court has urged again and again that power to grant compensation is
not ancillary but in addition to the other sentence. As the Law Commission of India in its 42nd
Report admitted that our courts not particularly liberal in utilizing the % provisions such as
section 357.

3) Amendment in Section 360 Criminal Procedure Code:-

Section 360 of Criminal Procedure Code which deals with order to release the accused on
probation of good conduct or after admonition is silent on the issue of compensation. Like
Section 5 of Probation of Offenders Act, 1958. Here also there should be provision that the court
can require offenders to pay compensation and costs. Special reasons be recorded for not
awarding compensation in cases where the person is released on probation either under section
360 of Criminal Procedure Code or under section 5 of Probation of Offenders Act, 1958.

4) Amendment in Section 361 Criminal Procedure Code:-

In Section 361 of Criminal Procedure Code, there can be a provision that special reasons are to
be recorded in case compensation is not awarded under Section 357, along with 97 clause.(a),(b)
i.e. a clause (c) can be inserted for the benefit of victims of crime.

5) Amount of Compensation

Amount of compensation under Section 358 i.e. for persons groundlessly arrested is very less.
Earlier it was just rupees hundred though now it has been increased to rupees thousand by
Criminal Procedure Code(Amendment) Act, 2005 but still the amount is very less from the point
of view of the suffering ofthe innocent victim. The limit of compensation of Rs. 1000 should be
removed.

6.)Reforms in Police Machinery

It has been found that most of the problems which the victims faced are because of efficiency,
incompetency and wide spread corruption in the police organization. Half the problems of
victims will be solved if this organization is efficient and competent. Another important
suggestion is the reforms in the Police machinery; old Police Act of 1861 has become redundant
in the present scenario. Misuse and abuse of police has reduced it to the status of a mere tool in
the hands of unscrupulous masters and in the process it has caused serious violations of the rights
of the people as rightly observed by Hon’ble Apex Court in Parkash Singh and others v. Union
ofIndia and others.68

68
(2006) 8 SCC 1,2006 (9) SCALE 444
7) Victim Participation:-

Criminal Procedure Code assigns a limited role to a victim of crime to participate in the criminal
justice system. A crime victim by virtue of section 190 of the Code may directly approach the
magistrate concerned with his complaint without going to the police for redress. Thereafter a
crime victim does not

8) Right to Seek State Assistance

In 1996, National Law School of India University , Bangalore (NLSIU) prepared a draft bill
‘The Victim (criminal injuries ) Right to Assistance Bill, 1996 (hereinafter referred as NLSIU
Bill.) endeavors to offer a comparatively better comprehensive compensatory scheme for a crime
victim, who has a direct consequence of crime, has suffered death or injury by conferring on him
(and or his dependent), irrespective of acquittal and /or conviction ofthe offender by a competent
court, the right to receive compensation from the competent ‘Authority’ designed under the bill.
It provides for the creation of ‘Crime Assistance Fund’ at the National, State and District Levels,
by Central Government, State Governments concerned, donations and sums received by the
Authority, National or state under orders of the court to make the payment to victims of criminal
injuries.69 It contemplates three tier authorities to render assistance to crime victims and their
dependents.

9) Restorative Justice

In India Restorative Justices Practices are in initial stages at present. In order to implement the
concept of Restorative Justice in its real sense following steps may be considered;-

a) Awareness :- There is need of awareness regarding Restorative Justice. For this purpose print
and electronic media can help, seminars, interactions can be held to educate the people about

69
Vibhute, K.I Criminal Justice: A Human Rights Perspective the Criminal Justice Process in India ( Eastern Book
Company), 2004 p.381
restorative justice and plight of victims of crime. Research projects can be conducted at
university level so that more and more people can join this movement. Social workers, NGO’s
can play a vital role in this regard. Restorative Justice can be included as a subject in curriculum.
The concept should be reproduced in local language so that common people can understand the
same.

b) Special Training to Judicial Officers, Law Teachers :- Specialized training should be

provided to Judicial officers, lawyers, prosecutors and law teachers to sensitize them towards the
need of victims of crime.

10) Compensation at the Earliest

Of the present system of courts, order of payment of compensation to the victim by accused
requires order of conviction and sentence as a pre-condition. The victim is needed to be
compensated at the earliest, since it is the obligation of the state to protect the individual
interests, State should be made to pay immediate compensation to the victim without the burden
of any additional civil suit to be filed by the victim. Later on if the accused is convicted the
compensation awarded to the victim may be recovered fully or partly from the convict as per his/her
capacity.