1

CHAPTER-1

1.1. INTRODUCTION

It is pertinent to note that the victim is not a passive object but an active component of the
whole judicial process. The victim deserves similar level of protection and attention from the
court like that of an accused. To strike a balance between the human rights of the accused and
that of a victim by plethora of decisions the Honourable Supreme Court of India attempted to
restore the dignity of the victim and to heal up the wounds sustained by the victim. Post Code
of Criminal procedure (Amendment) Act, 2008 and Criminal Law Amendment Act 2013, a
radical and shift is noticed in the Indian criminal justice system that introduces and redefines
the rights of victim to a significant extent. For example Section 24(8) of the Code of criminal
procedure provides for engaging of an advocate of his/her choice to assist the public
prosecutor, Trial of offense under section 376 and 376 (A) to 376 (D) of the Indian Penal
Code as far as practicable by a court presided over by a woman is also given under Section 26
(A). Further provisions as to recording of statement of the rape victim at her residence or in a
place of her choice or as far as practicable by the woman police officer in the presence of her
parent or guardian or near relative or a social worker of the nearby locality are given under
Section 157 of CrPC. Also Section 173(1-A) of the Code of criminal procedure mandates a
specific time of three months for the investigating agency to complete the investigation if the
allegation relates to the offence of rape of a child.1

In the efforts to look after and protect the human rights of the accused/convict, we cannot
forgo the rights of a victim or his family in case of his death or who is otherwise
incapacitated to earn his/her livelihood as a result of criminal act of the accused/convict. The
victim is certainly entitled to reparation, restitution and safeguards of his rights and criminal
justice would look hollow if justice is not done to the victim of the crime. A victim of crime
cannot be a 'forgotten person' in the criminal justice system. It is he who has suffered the
most. The Malimath committee Report (2003) in Chapter 6 strongly espoused the idea of
‘justice to victims’. The Report highlighted the plight of the victims of crime in every
criminal justice process and recommended the constitution of a Victim Support Service
Coordinator to safeguard the interest of the victim at the trial stage. The special concern for
victim got incorporated into the Code of Criminal Procedure 1973 through measures in the
Amendments in 2005, 2006 and 2008. The 2008 Amendment has incorporated an elaborate
1
Kumaravelu Chockalingam, Measures For Crime Victims In The Indian Criminal Justice System,(SEPT, 10, 2019, 5:45
AM) ([Link]
 2

Victim Compensation Scheme that provides for every State- Government to set up a Victim
Compensation Fund.2 There is an apparent unprecedented concern for the individual or group
victims of injustices whether present or past in criminal or even non-criminal conflict
situations. The national concern for the ‘victims’ was epitomized in the observation of the
Home Minister P Chidambaram in the Lok Sabha in the Bhopal disaster debate3 :

“Twenty five years later we can look back with a sense of regret and guilt that we did not
address the grave matter the way it should have been… We (Lok Sabha) must send a
message that we share their (victims’) grief and sorrow with guilt”

We see similar expressions of concern for the victims of national disasters, communal riots,
honour killings, farmers’ suicides and corporal punishment suicides. It is true that many
forms of victimizations may still be outside the domain of criminal justice administration, but
in most of the civilized countries all these new forms of victimizations are being increasingly
subjected to criminal laws, thus, brought within the ambit of criminal justice administration.
Even though no separate and special law has yet been enacted in India for victims of crime,
silver lining is that justice to victim has been rendered through affirmative action and orders
of the Supreme Court.4

1.2. MEANING OF VICTIMOLOGY.

Broadly speaking, victimology may be defined as the scientific study of victimisation,

including the relationships between victims and offenders, the interactions between victims
and the criminal justice system, that is, the police and courts, and correctional officials. It also
includes connections between victims and other social groups and institutions, such as the ,
media, businesses and social movements. However, the term victimology is not restricted to
the study of crime victims alone but it may extend to other forms of human rights violations
that are not necessarily crimes.5

2
BB Pande, ‘Growing Concern for ‘Victims’ Interest in Criminological Theory, Criminal Law Norms and Field Level
Practices: Implications for Future Action’ (2011) 1(1) KIIT Journal of Law and Society.
3
PC says let’s right the wrongs as LS rues: ‘Somewhere, somehow, we all failed’, at
[Link]
failed-/659277/
4
G S Bajpai and Ramneek Kaur, “Evolving Victimological Jurisprudence : A View from SupremeCourt Cases, Journal of
National Law University, Delhi, Vol 3, p 36
5
N. V Paranjape, Criminology, Penology, Victimology, 763 (Central Law Publication, Allahabad 17 th ed Rep 2018)763
 3

The study of crime victims and issues related to victimization is known as victimology.
Victimology is the study of the risk factors for and consequences of victimization, and
criminal approaches dealing with victims and victimization.

Victimology as a branch of criminology encompasses the study of the following:

i. Victimization;
ii. Victim – offender relationships;
iii. Victim – criminal justice relationships;
iv. Victim and the media relationship;
v. Victims and costs of crime;
vi. Victims and societal reactions;
vii. Compensatory remedy for victims.6

1.3. THE HISTORY OF VICTIMOLOGY.

The term ‘victimology’ was coined in the mid-1900’s. crime was, of course, occurring prior
to this time, thus, people were being victimized long before the scientific study of crime
begin. Even though they were not scientifically studied, victims were recognised as being
harmed by crime and their role in the criminal justice process has evolved over time.

Before and throughout the Middle Ages, the burden of the justice system, informal as it was,
fell on the victim. When a person or property was harmed, it was up to the victim and the
victims family to seek justice. This was typically achieved through retaliation. The justice
system operated under the punishment would be equal to the harm caused. Punishment based
on these notions is consistent with retribution. During this time, a crime was considered a
harm against the victim, not the state. The concepts of restitution and retribution this time, a
criminals. Criminals were expected to pay back the victim through restitution.

Early criminal codes incorporated these principles. The Code of Hammurabi was the basis
for order and certainty in Babylon.7

The origin of victimology as a part of criminology may be traced back to 1940’s when
founders of this branch of knowledge, notably, Mendelsohn, Von Hentig and Wolfgang
initially tended to use the term to mean “hapless dupes who instigated their own
victimization” which they term as ‘victim precipitation’.

6
Nida Zainab Naqvi, Rights Of Victims In India’s Criminal Justice System – Analysis, ( SEPT, 13, 2019, 7:32 PM)
[Link]
7
[Link] ( SEPT, 13, 2019, 7:54 PM)
 4

However, the notion of ‘victim precipitation’ invoked criticism by feminists by 1980’s and
the term ‘victim’ was interpreted in a more wider sense to include ‘anyone caught up in an
asymetric relationship or situation”. Thus, in the modern sense, the concept of victimology
includes any person who experiences injury, loss or hardship due to any cause.8

CHAPTER-2

RIGHTS OF THE VICTIMS.

2.1. INTRODUCTORY.

The rights of the accused find prominent place in the procedural law but this is not the case
with regard to crime victims. Accused persons are entitled to a fair trial where their guilt or
innocence can be determined. But from the victims' standpoint, the perpetrator of a crime
should be punished. They stand poised equally in the scales of justice. Victims interests need
to be balanced vis-à-vis that of accused. Views to this effect echoed in The National Human
Rights Commission v State of Gujarat9 and in Vikas Kumar Roorkewal v. State of
Uttarakhand10. The court observed that “Broader public and societal interests require that the
victims of the crime who are not ordinarily parties to prosecution and the interests of the State
represented by their prosecuting agencies do not suffer even in slow process but irreversibly
and irretrievably, which if allowed would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined
and jealously guarded and protected by the Constitution.”

Similarly at the time of considering the right of the accused to be released on bail or
otherwise or at the time of imposing an appropriate punishment, the rights of victim must be
considered. While considering the right of the convict to be released, the principles set out by
the Court in ArvindYadav v Ramesh Kumar11 were taken into consideration and the Court in
State of MP v Kusum12 observed that it is also to be borne in mind that the victim and the
family of the victim who have suffered at the hands of the convict have also some rights. The
convicts have no indefeasible right to be released.13 And while considering the imposition of

8
Supra note 5, 763-764
9
(2009) 6 SCC 342, Para 40
10
(2011) 2 SCC 178
11
2003 CriLJ2552
12
AIR 2007 SC 2647
13
State of MP v Abdul Kadir and Anr AIR 2009 SC 1801.
 5

appropriate punishment, the court must not only keep in view the rights of the accused but
also the rights of the victim of the crime. Placing reliance on Shailesh Jasvant bhai v State of
Gujarat14 and Ravji alias Ram Chandra v State of Rajasthan,15 this was observed in a very
recent case Alister Anthony Pareira v State of Maharashtra 16the system and the law has a
duty to protect such victims of crime also.17

2.2. MEANING OF VICTIM AND VICTIM OF CRIME.

The term ‘victim’ in general parlance refers to all those who experience injury, loss or
hardship due to any cause and one of such causes may be crime. The legal definition of the
term ‘victim’ typically includes:- “ A person who suffered directly or threatened physical,
emotional or pecuniary harm as a result of commission of a crime, or in the case of a victim
being an institutional entity, any of the similar harm by an individual or authorized
representative of another entity or group who are essentially covered under civil or
constitutional law and deserves assistance by the criminal justice system.”18

The UN General Assembly Declaration of ‘Basic Principles of Justice for Victims and Abuse
of Power’, contains an exhaustive definition of the term ‘victim of crime’ in Articles 1 & 2
which reads as follows:

Article 1- ‘Victim’ means those who individually or collectively, have suffered harm
including physical or mental injury, emotional suffering, economic losss or substantial
impairment of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within members states including those prescribing criminal abuse of
power.

Article 2- A person may be considered a victim under this Declaration, regardless of whether
the perpetrator is identified apprehended, prosecuted or convicted and regardless of the
familial relationship between the perpetrator and the victim. The term victim also includes
where appropriate, the immediate family or the dependents of the victim and persons who
have suffered harm in intervening to assist victims in distress or to prevent victimization.”\

14
2006 (2) SCC 359.
15
(1996) 2 SCC 175.
16
(2012) 2 SCC 648
17
KuriachanChacko and Ors v State of Kerala (2008) 8 SCC 708.
18
Sec. 2 (wa) as inserted by Cr PC ( Amendment) Act, 2008
 6

2.3. RIGHTS OF THE VICTIMS.

The adoption by the General Assembly of the United Nations, at its 96 th Plenary on
November 29, 1985 of the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power constituted an important recognition of the need to set norms and
minimum standards in international law for the protection of victims of crime The U N
Declaration of 1985 places victims under two broad heads, namely i. Victims of crime and ii.
Victims of abuse of power. It recognized four major components of the rights of victims of
crime- access to justice, restitution, compensation and assistance

2.3.1 VICTIM OF CRIME

The rights of victims of crime include-

1. Right to access to justice and fair treatment.

It includes fair and compassionate treatment with dignity, prompt redressal, fair and
inexpensive judicial trial mechanism, informed rights, inclusion of mediation and arbitration
etc. Victims generally have the right to be treated with courtesy, fairness, and care by law
enforcement and other officials throughout the entire criminal justice process. This right is
included in the constitutions of most states that have victims' rights amendments and in the
statutes of more than half the states. Victim impact statements allow crime victims, during the
decision-making process on sentencing or parole, to describe to the court or parole board the
impact of the crime on their lives. The victim impact statement may include a description of
psychological, financial, physical, or emotional harm the victim experienced as a result of the
crime. A judge may use information from these statements to help determine an offender's
sentence; a parole board may use such information to help decide whether to grant a parole
and what conditions to impose in releasing an offender. Many victims have reported that
making victim impact statements improved their satisfaction with the criminal justice process
and helped them recover from the crime.

In some states, the prosecutor is required to confer with the victim before making important
decisions. In all states, however, the prosecutor (and not the victim) makes decisions about
the case.19

19
Victims' Rights (SEPT, 14, 2019. 5: 03 pm) [Link]
crime-victims/victims'-rights
 7

2. The right to restitution

The term ‘restitution’ generally refers to restoration of the harm caused by the defendant,
most commonly in the form of payment for damages. It can also refer to the return or
repair of property stolen or damaged in the course of the crime and includes appropriate
and fair restitution to victims, their families or dependants, replacement of community
facilities and reimbursement of the expenses of relocation etc

Courts to order restitution by convicted offenders as part of their sentences.

Losses to be recovered.

Restitution should cover any out-of –pocket losses directly relating to the crime,
including:

 Medical expenses.
 Therapy costs
 Prescription charges
 Counselling charges
 Lost wages.
 Expenses related to participating in the criminal justice process
 Lost or damaged property
 Other expenses resulted directly from the crime.

Restitution will not cover such things as pain and suffering or emotional distress, but
may cover reasonably expected future losses such as ongoing medical or counselling
expenses. In calculating the restitution owed, a court should look at the victim’s
losses.20 In R. Gandhi v. Union of India,21 the Madras High Court, acting on the
report of a commissioner appointed by it to assess the losses, directed payment of
varying amounts of compensation for the losses to property of the Sikh Community in
Coimbatore.

20
Jyosna Dighe, Victims Rights in India (SEPT, 14, 2019, 5:45 PM) [Link]

[Link]
21
AIR 1989 Mad 205.
 8

3. Right to compensation.

Compensation is awarded towards sufferance of any loss or injury by reason of an act for
which an accused person is sentenced. Prior to CrPC (Amendment Act) 2008, India was
lacking a comprehensive legislation for compensation to victims of crime. The 2008
Amendment Act has inserted a new section 357A which provides the mechanism to provide
compensation to the victim.

The 152nd report of the Law Commission had recommended the introduction of Section 357
A prescribing inter alia that compensation be awarded at the time of sentencing to the
victims of the crime- Rs 25000/- in the case of bodily injury, not resulting death; Rs.
100000/- in the case of death. The 154 th Report of the Law Commission of India noticed that
its earlier recommendation had still not been given effect to by the Government. It went one
step further and recommended that it was necessary to incorporate a ‘new Section 357-A in
the code to provide for a comprehensive scheme of payment of compensation for all victims
fairly and adequately by the courts. Heads of compensation are for i. for injury, ii. For any
loss or damage to property of the claimant which occurred in the course of his/ her sustaining
the injury and iii. In case of death from injury resulting in loss of support to dependant”

In the Delhi Domestic Working Forum Case22 the court directed payment of Rs 10000 as ex
gratia to each victim. In Gudalure M J Cherian v. Union of India23, the State of U. P was
directed to pay a sum of Rs. 2,50,000/- as compensation to two sisters on whom rape had
been committed by unidentified assailants.24

4. Right to assistance

Apart from compensation, Victim assistance seems to be a dire necessity for victim
rehabilitation. Such assistance may be in the form of necessary material, medical,
psychological or social assistance through governmental, voluntary, community based or
indigenous means; availability of health and social services and other relevant assistance;

22
(1994) 3 SCALE 11
23
(1995) Supp 3 SCC 387
24
S. Muralidhan, Rights of victims in the Indian Criminal Justice System (SEPT, 15, 2019, 4:54 pm)
[Link]
 9

services of police, justice, health, social service and other personnel concerned, training to
sensitize these services for helping victims.25

2.3.2. VICTIMS OF ABUSE OF POWER.

The expression ‘abuse of power’ denoted acts or omissions that do not constitute violation of
criminal law but are nevertheless recognised to have been committed against the norms
relating to human rights by persons/ authorities in power. Person who individually or
collectively, have suffered harm , including physical or mentalinjury, emotional suffering,
economic loss or substantial impairment of their fundamental rights due to abuse of power by
authorities are called victims of abuse of power.26

Victim of custodial and rape case.

An accused while in custody can be the victim of abuse of power. Though several
constitutional and statutory-provisions have been enacted to safeguard the life and personal
liberty of citizens, incidents of torture and death in the police custody are ever on the rise. In
Jaywant P Sankpal v Suman Gholap,27 where an illegally arrested accused became the victim
of the assault, the Court observed that if a person is physically tortured while he is in custody,
it clearly shows violation of norms relating to custody of person arrested or detained in
connection with any offence. Considering the increasing number of cases of custodial
violence, it is required that while dealing with the cases of custodial violence, the Courts
should adopt a realistic approach rather than a narrow technical approach. The courts are also
required to have a change in their outlook approach, appreciation and attitude and should
exhibit more sensitivity towards such cases. Following such approach, the Court in Singh
Gautam (D) v. State of MP28 , recommended that the Government and the legislature must
bring about appropriate changes in the law not only to curb the custodial crime but also to see
that the custodial crime does not go unpunished. According to the Court, it must be ensured
that Rape is not mere a physical assault, rather it often shakes the whole existence of the
victim29. In Rajinder @ Raju v. State of HP30 , the Court held that the rapist not only violates
the victim's privacy and personal integrity, but inevitably causes serious psychological as
well as physical harm in the process. Rape is unique among crimes, in the sense, the manner
25
Supra note 5, 769
26
ibid
27
(2010) 11 SCC 208.
28
AIR 2005 SC 402
29
State of Orissa v ThakaraBesra and Anr AIR 2002 SC 1963.
30
AIR 2009 SC 3022.
 10

in which its victims are dealt with by the criminal justice system. Raped women have to
undergo certain tribulations. These begin with their treatment by the police and continue
through a male-dominated criminal justice system.31

2.4. OTHER RIGHTS.

1. Right to be informed.

The purpose of this right is to make sure that victims have the information they need to
exercise their rights and to seek services and resources that are available to them. Victims
generally have the right to receive information about victims' rights, victim compensation),
available services and resources, how to contact criminal justice officials, and what to expect
in the criminal justice system. Victims also usually have the right to receive notification of
important events in their cases. Although state laws vary, most states require that victims
receive notice of the following events:

o the arrest and arraignment of the offender

o bail proceedings
o pretrial proceedings
o dismissal of charges
o plea negotiations
o trial
o sentencing
o appeals
o probation or parole hearings
o release or escape of the offender

States have different ways of providing such information to victims. Usually, information
about court proceedings is mailed to the victim. Some states have an automated victim
notification system that automatically calls or e-mails the victim with updates on the status of
the offender, while others require the victim to telephone the authorities to receive such
updates.32

31
State of Madhya Pradesh v Babulal AIR 2008 SC 582
32
Supra note 19
 11

2. Right to protection
In many states, victims have the right to protection from threats, intimidation, or retaliation
during criminal proceedings. Depending on the jurisdiction, victims may receive the
following types of protection:

 Police escorts to and from court.

 Secure waiting areas separate from those of the accused and his/ her family, witnesses
and friends during court proceedings
 Witness protection programs
 Relocation of residence.
 Restraining order.
3. Right to return of property.

A victim of crime may suffer the loss of property in two ways: by theft or when property is
seized and held as evidence. 33 Crime investigators must often seize some of the victim's
property as evidence for a criminal case. In most states, authorities must return such property
to the victim when it is no longer needed. To speed up the return of property, some states
allow law enforcement to use photographs of the item, rather than the item itself, as evidence.
The prompt return of personal property reduces inconvenience to victims and helps restore
their sense of security.34

4. Reparation

Reparation is arguably the most comprehensive means of compensating individuals and

groups whose rights have been violated. Reparation acknowledges that serious wrongs have
been done and, consequently, that the injured person is entitled to remedy and redress.
Reparation is commonly associated with paying monetary compensation. While this form of
compensation is an important means to offset damages suffered, India should not overlook
other, non-monetary, forms of reparations. According to the Basic Principles and Guidelines,
reparation includes “restitution, compensation, rehabilitation, satisfaction, and guarantees of
non-repetition.”

33
Supra note 20
34
Ibid 32
 12

5. Right to engage an Advocate of his choice

The Court is empowered to permit the Victim to engage an Advocate of his choice to
assist the prosecution under Section 24(8).

6. Right to prefer an appeal

The Malimath Committee in its Report had recommended vehemently that the victim
shall have a right to prefer an appeal against any adverse order. Victim shall have a right
to prefer an appeal (proviso to section 372 was inserted by the Amendment Act of 2008)
against any order passed by the Court acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation, and such appeal shall lie to the Court to
which an appeal ordinarily lies against the order of conviction of such Court.

In addition to bolstering monetary reparations for Victims, a new legislation should also
address other needs of Victims, including medical and psychological care, economic care,
immediate protection and security, and long-term rehabilitation.35

The Bombay High Court in Balasaheb Rangnath Khade v State of Maharastra36, declared
the victim’s right of appeal as integral to the catena of ‘human rights’ available to each
individual, which are absolute and unfettered in nature. The court warned against the
granting to the courts, the prerogative to afford ‘leave to appeal’. One cannot afford to
dilute this solitary vital right which has been expressly been given to the victims in the
Indian Criminal Jurisprudence.37

CHAPTER-3.

RIGHTS OF VICTIMS: COMPARATIVE STUDY.

35
Barcelona Panda , “Victim Right to Rehabilitation: India, UK and US Experience” p 3-4 at
[Link]
36
2012 ALL MR (Cri) 1153
37
S. Muralidhan, Rights of victims in the Indian Criminal Justice System [Link]
 13

3.1. RIGHTS OF VICTIMS IN UNITED STATES OF AMERICA

A crime victim has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any
parole proceeding, involving the crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court, after
receiving clear and convincing evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim’s dignity and
privacy.38

3.2. RIGHTS OF VICTIMS IN CANADA

In Canada the Victims Bill of Rights Act was passed in 2015 which gives victims of crime a
more effective voice in the criminal justice system, came into force. This legislation creates
the Canadian Victims Bill of Rights to provide clear statutory rights at the federal level for
victims of crime for the first time in Canada’s history. The Canadian Victims Bill of Rights
establishes statutory rights to information, protection, and participation and to seek
restitution, and it ensures that a complaint process is in place for breaches of these rights by a
federal department or agency.

Under the Canadian Victims Bill of Rights, when a victim believes that his or her rights have
been breached, the victim first files a complaint with the appropriate federal department or
agency. The legislation includes a requirement for all federal departments and agencies that
have responsibilities under the Canadian Victims Bill of Rights to have internal complaint
38
[Link]
(SEPT, 15 2019, 6:04 PM )
 14

mechanisms accessible to victims to review complaints, make recommendations to correct

any infringement, and notify victims about the results of the review.

Complaints regarding a provincial or territorial agency, including police, prosecutors, and

victim services, will be addressed in accordance with the applicable provincial or territorial
legislation. In order to improve the remedies available to victims, the federal government is
providing funding through the Victims Fund to provinces and territories to enhance or
establish complaint bodies for victims of crime. This funding encourages a level of
consistency in the complaints mechanisms available to victims of crime across the country
without drawing funds from successful existing programs for victims of crime.

A victim can exercise the rights in the Canadian Victims Bill of Rights while an offence is
being investigated or prosecuted and while the offender is subject to the corrections or
conditional release process. For cases in which an accused has been found unfit to stand trial
or not criminally responsible on account of mental disorder, the victim can exercise the rights
while the accused is under the jurisdiction of a court or Review Board.39

CHAPTER-4

JUDICIAL RESPONSE.

4.1. ROLE OF JUDICIARY IN EMANICIPATING RIGHTS OF VICTIMS.

Justice traditionally has been understood to involve prosecution, conviction and punishment
of guilty in order to restore public order, security and respect for rule of law. The victims,
survivors and witnesses go to the altar of the court for a variety of reasons: the desire for the
truth to be known, to speak for the dead, to demand accountability and to demand justice.
Section 357 (3) of the Code of Criminal Procedure, 1973 empowers the trial court, while
imposing fines, to direct that the fine recovered be paid as compensation to the victim of the
crime. Where the court has not imposed fine as part of the conviction, it may direct the
accused to pay compensation to the victim. However, courts do not often resort to these and
other provisions provided in our penal statutes. In Hari Shankar v Sukhbir Singh,40 the
accused were convicted and sentenced under Section 325 read with Section 149, Section 323
read with Section 149 and Section 148 of the Indian Penal Code, 1860. They were released
on probation of good conduct. Each of them was ordered to pay compensation of Rs.2, 500/-
39
ibid
40
AIR 1988 SC 2127
 15

to the injured. In default of payment of compensation, they were directed to serve their
sentence. The Court inter alia considered whether the compensation awarded to the injured
could be legally sustained. The court observed that the power of the court under Section
357(3) to award compensation is not ancillary to other sentences, but it is in addition thereto
and is intended to do something to reassure the victim that he or she is not forgotten in the
criminal justice system. The court further observed that it is a measure of responding
appropriately to crime as well as of reconciling the victim with the offender. Describing it as
a constructive approach to crime, the court recommended to all courts to exercise this power
liberally so as to meet the ends of justice in a better way. It was clarified that the order to pay
compensation may be enforced by awarding sentence in default.

It was further observed, “The payment by way of compensation must, however, be

reasonable. What is reasonable may depend upon the facts and circumstances of each case.
The quantum of compensation may be determined by taking into account the nature of crime,
the justness of claim by the victim and the ability of accused to pay. If there are more than
one accused they may be asked to pay in equal terms unless their capacity to pay varies
considerably. The payment may also vary depending upon the acts of each accused.
Reasonable period for payment of compensation, if necessary by installments, may also be
given. The court may enforce the order by imposing sentence in default.”

In Mangilal v State of M.P41, the Supreme Court dealt with the scope of Section 357(3) of
Cr.P.C in detail. The Court observed: – “The power of the court to award compensation to the
victims under Section 357 is not ancillary to other sentences but is in addition thereto. Section
357(1) deals with a situation when a court imposes a fine or a sentence (including sentence of
death) of which fine also forms a part. It confers discretion on the court to order as to how the
whole or any part of fine recovered is to be applied. If no fine is imposed, section 357(1) has
no application. The basic difference between sub-section (1) and (3) of Section 357 is that in
the former case, the imposition of fine is the basic and essential requirement; while in the
latter even the absence thereof empowers the court to direct payment of compensation. Such
power is available to be exercised by an appellate court or by the High Court or Court of
Sessions when exercising revisional powers”. In Rattan Singh v. State of Punjab the Court
said that it is a weakness of our jurisprudence that the victims of the crime, and the distress of
the dependents of the prisoner, do not attract the attention of the law. Indeed, victim
reparation is still the vanishing point of our criminal law.
41
AIR 1991 NOC 1998
 16

In Ankush Shivaji Gaikwad v. State of Maharashtra42, the Court said, “With modern concepts
creating a distinction between civil and criminal law in which civil law provides for remedies
to award compensation for private wrongs and the criminal law takes care of punishing the
wrong doer, the legal position that emerged till recent times was that criminal law need not
concern itself with compensation to the victims since compensation was a civil remedy that
fell within the domain of the civil Courts. This conventional position has in recent times
undergone a notable sea change, as societies world over have increasingly felt that victims of
the crimes were being neglected by the legislatures and the Courts alike. Legislations have,
therefore, been introduced in many countries including Canada, Australia, England, New
Zealand, and Northern Ireland and in certain States in the United States of America providing
for restitution/reparation by Courts administering criminal justice.”

4.2. CONCLUSION

Though the criminal justice system has changed its purview and the legislatures and judges
have been playing a significant role in the expansion of the rights of victims of crime in the
criminal justice administration of the country, yet the victims have not received their due
concern and their rights have not been given their due weightage. Victims have few legal
rights to be informed, present and heard within the criminal justice system. But unfortunately,
victims do not have to be notified of court proceedings or of the arrest or release of the
defendant, they have no right to attend the trial or other proceedings, and they have no right
to make a statement to the court at sentencing or at other hearings. Moreover, victim
assistance programs are virtually non-existent.

For the emancipation of victims’ rights it can be said that the criminal justice system can take
several steps to ensure and strengthen the rights of the victims, for example; the victims
should be informed about the progress of their case timely and they should be provided with
opportunities to be heard as and when they want to give an input. The victim should be more
than a witness, but not have total control over the prosecution of the case. The role that the
victim plays should be stronger than in the years prior to the victim’s movement, with an
emphasis in sentencing. The victim and the court should communicate frequently with the
courts giving victims specific explanations as to why an offender will be sentenced
differently than the victim expects. This can give victims the personal gratification of being
heard while balancing the power between the victim and the state. Victims should be heard in

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sentencing, feel satisfied, and be informed throughout case processing as the victims are the
ones who feel the immediate damage caused by the crime.

The courts should also seek victim approval of the sentence with the goal of improving
victim satisfaction with their involvement in the justice process. Seeking victim approval in
sentencing is a way for the system to recognize that beyond the role of the state, which is
impersonal, there is an individual who has personal interest in sentencing, was directly
affected by the crime, and wants to be heard. They should also be adequately compensated
and restituted. The criminal justice officials especially the police personnel should be given
special knowledge and information on the rights of the victims in the criminal justice system.
There should be a separate fund for victims’ services and their rehabilitation.

The entire criminal legal system functions primarily and substantially to provide justice to the
victim. Giving the victims and witnesses a voice to testify in court without fear, participate in
the court proceedings and have their rights and interests protected is of utmost importance for
the legitimacy of the justice delivery system. Moreover, the present day understanding of
justice necessarily includes accessibility to courts of law. Unless the judicial system is
accessible to the people who demand justice, the system would exist only in name and not in
substance. Needless to say, victims and witnesses would be amenable to accessing the system
and give truthful testimonies only if the system guaranteed a protection of their and their
families’ Privacy, security, identity and dignity.

It’s the society’s attitude towards victims of crime that the people usually blame the victim
and don’t have the empathy for them. The criminal or the offender doesn’t face such
ostracization and he/she gets mingled in the society without any problem. Had the law been
tough on the criminals and took care of the rights of victims of crime, the situation would
have been much different. The whole criminal justice system is offender oriented. The
legislature, the executive and even many times the judiciary are concerned with the rights of
the accused or the criminal. Hence, a strong message regarding victims’ rights is not
forwarded to the people by them and therefore, the society does not feel the sympathy for the
distressed victims.
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