Victim’s rights under the Indian criminal justice system

Most of the time we see how the main attention of the State and its functionaries
is to punish the accused and in doing so the interests and rights of the victim get
ignored. To ensure that justice is properly dispensed the United Nations General
assembly adopted the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power which recognised 4 major rights for victims of a crime.
These rights are:

1. Access to justice and fair treatment

2. Restitution

3. Compensation

Ensuring access to justice and fair treatment, compensation/restitution and

providing the required assistance to the victim are some of the rights that should
be given to the victim without any default in any criminal justice system. These
sacred elements have been given recognition in the Indian criminal justice system
too.

Access to justice and fair treatment

Looking at the provisions of law, one can easily make out that criminal justice is
more tilted towards ensuring the protection of the accused. The main attention of
the State is to hear him out and if his guilt is proved then take all measures to
ensure that he does not go unpunished. We can find various provisions like
section 56 and section 76 of CrPC that make it mandatory for the accused to be
presented before a judicial magistrate within 24 hours of arrest without any delay
shield the accused from unnecessary harassment. However, concerning the
victim, the rights are not well codified under the Indian criminal justice system.

Despite the tilt towards the accused, there are still provisions granting rights on
the victim which help in eliminating further victimization. Section 439 provides
that before granting bail to the accused the victim has to be informed unless for
cogent reasons court thinks it would not be practicable to inform him.
Furthermore, by the virtue of section 439(2), the victim can also appeal against
the bail granted to the accused. This provision ensures that the accused is not
eased out without the knowledge of the victim. When a crime happens, it is
treated not just as a crime against the individual but as a crime against society.
Therefore, State is the prosecutor in such cases and a Public Prosecutor or an
Assistant Public Prosecutor is in charge of the case. In case the victim wants to
engage any pleader then he can do so. Such a leader has to act under the
direction of the Public Prosecutor or the Assistant Public Prosecutor. Section 154
of the Code prescribes the procedure for lodging the first information report
(F.I.R). As per this section, the victim can either give information relating to the
commission of the cognizable offence in writing or orally to the officer in charge of
the police station who shall then reduce it to writing. In case the officer in charge
of the police station refuses to take down the information then the victim can the
substance of such information to the Superintendent of Police who can either
conduct the investigation himself or ask any of his subordinates to do the same. It
has been a much-debated question whether lodging FIR is mandatory or if there is
discretion upon the officer in charge of the police station. This issue has been
resolved in the case of Lalita Kumari v Government of U. P. where it was held that
section 154 of the Code is a mandatory provision and in case a person comes with
the information of a cognizable offence then the officer in charge of the police
station is bound to register the FIR. This mandatory nature of the provision
ensures that it is easy and swift access to justice for the victim, judicial oversight
and it also reduces the chances of manipulation in criminal cases.

Even in cases of plea bargaining, the opinion of the victim in granting it is

considered. Plea bargaining is basically a negotiation between the accused and
the prosecution for a lesser punishment. The outcome of plea bargaining is based
on mutual satisfaction and it may even involve payment by the accused to the
victim for the expenses he had incurred. This provision is based on fairness.

Compensation/restitution

It has been a topic of much debate and discussion whether the baton of the
justice givers ends at the final result of the case, i.e., merely punishing the
wrongdoer or does it extends to ensuring that the aggrieved party is rehabilitated.
Rehabilitation of the victim becomes even more essential in certain grave crimes
like rape etc. and without providing a proper mechanism for rehabilitation the
whole criminal justice system would fall shallow. The true idea of justice can only
be achieved when there are not just punitive measures for the wrong-doer but
also providing rehabilitative measures for the ones who fall prey to such wrongful
acts. The fines and other punishments are given to the accused by the court are
punitive measures. The criminal courts have to deal with the punitive part and
punish the offender for his wrongful acts, whereas, the civil court has to get the
victim compensated by the accused. Along with the punitive measure, the
criminal court may also allow compensation to the crime victim that can be done
without causing any disturbance to the civil and criminal process and would also
save time, money and efforts. The provision related to compensation is
encapsulated under section 357 of CrPC. However, compensation under this
section can only be provided if the accused has been convicted and sentenced.
While deciding the compensation the court will look into both physical and
financial loss caused to the accused. If the court orders a sentence of fine or any
other sentence of which a fine is a part then the maximum compensation that can
be given, as per section 357(1) is the maximum fine that can be imposed as
compensation as to be given out of the fine so imposed. Furthermore, section
357(3) can be construed liberally as it allows compensation only in cases where a
fine is not imposed. The object of sub-clause 3 of section 357 is to allow
compensation in those cases where fine does not form a part of the punishment
given. There are several case laws where the courts have ordered compensation
to the victim in case the State or its functionaries were unable to protect the life,
liberty or dignity of such a victim. The provision for victim compensation was
introduced in CrPC in 2009 by adding section 357A which mandated the State
Government to coordinate with the Central Government and prepare a scheme
fund for victim compensation. It provides that where the trial court feels that the
compensation awarded or in those cases where the accused has been discharged
or acquitted then compensation can be awarded to the victim for his
rehabilitation. Clause 2 of section 357A provides that the where the court makes a
recommendation for compensation the State Legal Services Authority (hereinafter
SLSA) or the District Legal Services Authority (hereinafter DLSA) has to decide the
quantum of punishment that has to be given. There can even be cases where the
offender cannot be identified. In such cases, the Code provides relief to the victim
or his dependents who can make write an application for such compensation from
SLSA or DLSA who shall then conduct an enquiry within 2 months and if satisfied
award adequate compensation.

The court has time and again held that section 357 regarding compensation
should be construed liberally and the court should record its reason for allowing
or not allowing the same.