In India there is neither a comprehensive legislation nor a statutory scheme providing for compensation by the state or by the offender to victims of crime. The state generally makes to the victims ex-gratia payment, which is not only ad hoc and discretionary but also inadequate. The Indian criminal law system does not provide for institutionalized payment of compensation to victim of a crime for any 'loss' or 'injury'- physical, mental or psychological- caused to him by the offender.
The Law Commission of India felt that it was 'unwise' to create a legal right in favour of the victim to join in the criminal proceedings as a third party to avoid mixing up of civil and criminal proceedings, a confusion of issues and prolongation of trial. It also could not see 'great advantage' in providing for 'duty to make amends for harm caused' or 'payment of compensation to the victim of the offence as an additional punishment. It favoured payment of compensation out of fine imposed on the offender30.
Section 357 of the Criminal procedure Code, 1973 inter alia, empowers a criminal court, in its discretion, to award compensation to any person for any loss or injury caused by an offence in those cases where 'fine' does or does not form a part of the sentence imposed. Section 421 of the CrPC empowers the criminal court passing a sentence of fine, in its discretion, to recover this amount by attachment and sale of any movable property of the offender and/or as arrears of land revenue from his movable or immovable property or both.
However the court is not empowered to adopt either of the methods when the offender has undergone the whole of the imprisonment awarded in default of payment of the fine except for special reasons to be recorded in writing or where it has made an order for payment of expenses or compensation out of the fine imposed under Section 35731. By virtue of Section 431, CrPC, Section 421, CrPC, along with its proviso is equally applicable for recovery of a specified amount (which does not form part of the sentence) ordered as compensation under Section 357(3) of the CrPC.
Compensation to victims is also available under Section 5 of the Probation of Offenders Act, 1958. However in practice the courts have not paid much attention to this provision and the application of this section to pay compensation to victims has been extremely rare. It is thus evident that the legislative response to compensating victims of crime is not impressive. The legislative scheme of award and payment of compensation to victims of crime neither makes it mandatory for the courts to compensate the victims nor creates any legal right to be compensated in favour of the victims.
It entirely leaves it to the will of the court to compensate victims of crime and to initiate and move legal machinery to recover the fine, out of which compensation is ordered, or the specified amount of compensation from the offender to pay it to the victims of the offence. It is to be noted that courts in India have hardly invoked their statutory (discretionary) powers to compensate victims of crime.
The Law Commission of India has not only admitted the fact that courts in India are 'not particularly liberal' in utilizing these provisions but also observed that "it is regrettable our courts do not exercise their statutory powers under this Section as freely and liberally as could be desired". 32 Referring to and commenting on sub-section 3 of Section 357, Code of Criminal Procedure, the Supreme Court observed: "It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it.
It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who has suffered by action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do some thing to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender.
It is, to some extent, a constructive approach to crimes. "33 The Supreme Court also added a new dimension to the concept of victim compensation when it directed State Governments to take appropriate measures for deduction of the sum out of the earnings of the prisoners, which can be utilized for compensating the victims34. Thus the courts should follow the dictum of the Supreme Court and award compensation to victims whenever necessary in order to protect the victim and to ensure that he can play an effective role in the criminal justice system.
Compensation under the Constitution of India Article 21 of the Constitution of India guarantees the fundamental right to life and liberty to any person in India and by interpretation of this right the Supreme Court of India has developed a compensatory jurisprudence keeping in view the world trends of criminological thinking to pay attention not only to the accused, but also to the victims. The process of recognition of right of a person to claim compensation for illegal detention was started from the case of Rudal Shah v. State of Bihar35.
In this case the petitioner was detained illegally in Ranchi Jail in Bihar for 14 years after his acquittal by the court. The Supreme Court recognizing the petitioner's right to claim compensation for illegal detention by writ petition under Article 21 awarded a total sum of Rs 35000 by way of compensation. In delivering the judgment Chief Justice of India Y. V Chandrachud observed: Article 21 which guarantees the right to life and liberty will be denuded of its significance content if the power of this Court were limited to passing orders of relief from illegal detention.
One of the telling ways in which the violation of this right can be reasonably prevented and due compliance with the mandate of Article 21 secured is to mulct its violation in the payment of monetary compensation. In Sebastian M. Hongray v. Union of India36 two women filed a writ of habeas corpus to produce their husbands who were missing and alleged to have been murdered. The authorities failed produce them, the Supreme Court directed respondents to pay Rs one lakh to each of the wives of missing persons.
Another important area of awarding compensation under the constitution is for death in jail. In a far reaching judgment on human rights in Challa Ramakonda Reddy v. State37 the Andhra Pradesh High Court awarded Rs 144000 as damages against the State Government for the death of an undertrial prisoner in jail who was killed by his rivals, who hurled bombs into the cell. The Court rejected the defence of the State that that the incident was in exercise of sovereign function. The Court held that the concept of sovereign power is not an exception to the right to life.
Speaking for the bench Justice Jeevan Reddy said: We are perfectly aware that the principle adumbrated herein opens up a new vista for individual claims for damages against the state. It may add to the present day difficult financial position of the state, but we are of the opinion that such a remedy is not only statutory but essential for good government and for ensuing Rule of law. Thus from these decisions it can be said that the High Courts and the Supreme Court have now accepted and started propagating to have a compensatory criminal jurisprudence in our criminal justice system.
But this is limited within Articles 20, 21 and 22. The initial hesitation of the courts to recognize the government's liability in discharge of sovereign function as held in Kasturi Lal v. State of UP38 has now been overruled. The Supreme Court has started granting compensation for any loss or injury caused to the victims due to the negligence of government or its servants or agents. Thus compensation to the victim is a major concern of the criminal justice system and this focus on victim compensation reflects the model of restorative or compensatory justice which is being adopted by criminal justice systems the world over.
This focus on victim compensation has gone a long way in enhancing the role of the victim in the criminal justice system and in making sure that the victim plays a telling role during criminal proceedings. * Remedies For Victims- Ways To Enhance Role Of Victims And Enable Them To Play An Effective Role In The Criminal Justice System The present Code of Criminal Procedure does not recognize the right of the victim to take part in the prosecution of the cases instituted on the basis of police report. The victim is merely a witness.
He has no right to prefer appeal against the order of acquittal of the accused. The state reserves the discretion not to prefer appeal and also to withdraw from the prosecution even in the case of heinous offences. The state exercises this discretion without even consulting the victim. This discretion vested in the state is often misused on political considerations. Thus the victim becomes the victim of the criminal justice system also when politically motivated investigating and prosecuting agencies show lack of interest or apathy in the matter of investigation or prosecution on extraneous considerations.
The procedural law should be suitably amended to allow victims to participate in every stage of the criminal justice system. While making these much needed amendments the following areas must be considered and the following suggestions must be implemented in order to enhance the role of the victim in criminal proceedings and to give him a major role in the criminal justice system. Participation of Victims The Code of Criminal Procedure can be amended to make salutary provision for participation of the victim during the stage of investigation and trial of the criminal cases instituted on the basis of a police report.
The government may consider the proposal of giving free legal aid to the victims during the stage of investigation and trial of criminal cases instituted by the state. By way of amendment to the CrpC39 rights can be conferred on the victims to engage lawyers of their choice, whose opinion will prevail over the opinion of the public prosecutor in case of conflict and also to prefer appeal against the order of acquittal of the accused. Information to Victims
Owing to ignorance of law or lack of sensitivity, many police officers at the police station level do not inform the victim of the action taken by the police relating to the commission of the offence reported to the police station as per provisions of Section 173(2)(ii) of the Code of Criminal Procedure, 1973. Nor is there any statutory provision to inform the victim of the progress of the case during trial by the prosecution. The CrPC can be amended in order to give rights to the victims to know the progress of the case in the court through the prosecution.
The police should also inform the victim about the action taken by them in pursuance of the FIR40. It is pertinent to point out the innovative method of giving information to the victim, introduced by the Supreme Court, before accepting the final report submitted by the police to the court. The Supreme Court has directed the judicial magistrates to give an opportunity to the victim to be acquainted with the result of the police investigation and also to raise objections if any before discharging the accused on the basis of the final report submitted by the police under section 173 of the Code of Criminal Procedure41.
The dictum of the Apex Court must be followed rigorously by the magistracy in order to keep the victim informed of the result of the investigation of a criminal case initiated by him. Treatment of Victims as witnesses Interrogation of the victims in general and the victims of sexual offences in particular should be done by the police in a dignified manner and by following the procedure of law ie. without calling the female victims and male victims below the age of 15 years to the police station for the purpose of any interrogation as laid down in Section 160(1) of the CrPC.
The government should provide sufficient funds to the police and courts for payment of traveling allowance, pocket money allowance and professional loss to the victims appearing as witnesses whether in court or in the police station. The government should also set up sufficient number of courts so that the pending criminal cases are disposed of within a period of three years. The magistrates and judges should be trained in the art of court management and should be able to control lengthy cross-examination by way of rejecting irrelevant questions.
Medical Assistance The victims of offences to the body and accident victims need immediate medical assistance. In a public interest litigation the question arose whether every member of the medical profession has the obligation to extend his services with due expertise for protecting life. In this case42, the doctor avoided his duty to help an injured scooterist on the plea that it was a medico-legal case and ultimately the injured scooterist succumbed to his injuries before getting medical assistance in another hospital.
The Supreme court in this case laid down that whenever a person in the medical profession is approached for professional assistance, it is his obligation to render all help which he can and if the case needs better assistance he must make all efforts to ensure that the victim reaches the proper expert as early as possible. The practice of certain government institutions and private practitioners to refuse even primary medical aid to victims and referring them to other hospitals, because it is a medico-legal case, is violative of the Code of Medical Ethics framed under section 33 of the Indian Medical Council Act, 1956.
The members of the medical profession must be persuaded and motivated to follow the law of the land laid down by the Supreme Court. Security by rejection of bail The provisions relating to anticipatory bail in the CrPC must be amended as they are being misused by the rich and the powerful. Anticipatory bail should be limited to a short period. The courts must be very cautious before granting bail to the accused, who are influential members of the society and who may abscond during the trial.
The law should be amended to give rights to the victims to approach the court for cancellation of bail of the accused who threaten the victims during the pendency of the case in court. Protection of privacy of Victims of Sexual Offences Women police officers should take up the work of interrogation of victims of sexual offences in general and rape in particular. Where women police officers are not available the victims of rape should be interrogated at their residence or in the presence of their friends and relatives.
Similarly, the medical examination of the victims of rape should be done in an atmosphere where the victim is made to relax and to actively participate and cooperate during medical examination of the intimate parts of the body. Wherever possible female judges and public prosecutors should preside over courts where trial of sexual offences takes place and conduct trial of sexual offences respectively. The provision for in camera trial must invariably be adopted by the presiding officers of the courts where sexual offences are tried. The anonymity of the victim must be maintained during all stages of the criminal justice system43.
Return of Property Many a time, the victims of property offences do not get back their property even when the same is recovered by the police during investigation. The procedure for return of property is laid down in the CrPC. The fact of congested Malkahanas in the police stations and in the courts indicates that the properties seized by the police during investigation are not returned to the victims for reasons like lack of awareness on the part of their rights or lack of initiative on the part of the investigating officers and the public prosecutors.
Even when the orders are passed by the courts suo motto for disposal of property on conclusion of property, the order is not communicated to the respective police station by the prosecutor for proper compliance. The victims must be made aware of their rights to get their property back not only on completion of trial of the criminal case, but also during the stage of investigation and during pendency of the trial of the criminal case in the court.