VICTIM PARTICIPATION- INCRIMINAL JUSTICE SYSTEM
The
In fact there would normally be no need for victim participation if the state and its instrumentalities consider it to be there bounden duty to get offender punished. However, what is seen in actual practice is that prosecution is conducted in most of the states by an inefficient and indifferent manner due to political appointment of prosecutors despite the regular efforts by central government for entrusting the task to regular cadre of prosecuting officer of state with the result that high percentage of cases ends in acquittal. This failure to get the offender punished for his crime generate contempt towards the state and its criminal justice system, apart from compelling the victim to look for extra legal avenues to settle his score with the offender. In the above perspective there was dire need for reviewing the existing provision relating to position of victim. Central government took care of the above situation by amendments in code of criminal procedure 1974 by introducing. The code of criminal procedure (amendment) Act 2005 and the code of criminal procedure (amendment) Act 2008.
WHO IS VICTIM
The expression “victim” has thus to be understood in a comprehensive and inclusive sense and not in narrow sense of being an individual victim. It must include a collectivity comprising a group, a class or a community of persons…racial, economic, political or religious to whom harm, damage, loss, injury have been cased by individual wrongdoer or group including person or persons in lawful authority by abusing his or their powers[3]. Thus Apex court in cases of abuse of power ordered the government to pay compensation. In one case where man has been kept in illegal detention for over fourteen years even after acquittal in the case.[4] further after a year the court said “The Bhagalpur blinding should have opened eyes of prison administration of state but that bizarre episode has taught no lesion and has failed to evoke any response in the Augean stables. Therefore,the state must repair the damage by its officers( italics mine)to the petitioners rights. It may have recourse against those offices”. So saying the court ordered the state of
In ancient civilization , the victim of offence was central figure in any criminal system. In our pre modern polity, the injured victim had a vital say in the matter concerned with restitution or retribution, but slowly as civilization progressed, private revenge gave way to public justice with government undertook responsibility of providing justice and for which setup public prosecution system by which victim’s cause started to be pleaded in court on behalf of state and by introducing this system victim’s participation was ended. Thus in present system the offender or accused become central figure and victim is completely forgotten.
And so, what happens to victim if he survives and reports his victimization to the police. His misery starts again. When he enters in gateway of criminal justice system where he is faced with interrogation, adjournment, court appearance, insult at the hand of people and lawyer, loss of earning and time, protect witness from influence of accused ,frustration and last but not least corruption at every stage in criminal justice system and sometime.
Victim of crime find himself victimized not only by offender but again by criminal justice system during trial and in cases of molestation it can be put like this that victim of rape is twice molested once by offender and again by criminal delivery system when she approach the system for getting justice i.e. during police interrogation, humiliation in croos- examination by defense lawyer by playing on words like consent, struggle, resistance and self defense whose only concern is acquittal of accused. attempts at casting doubt on moral and general character of victim and our social different standards of morality of man and woman , fear of victim of rape that she will be castigated by her own without her culpability. the victim’s feeling in rape case that she finds herself victimized not only by rapist but by justice delivery system.
The concept of crime is intimately linked with existence of victim. Crime and punishment are not mere litigative exercise and more than punitive imprisonment and other penalties. The law must not only provide social defense through penal process but involve victim of crime in judicial process otherwise criminal system is said to serve only cause of offender. Thus in present system the offender or accused become central figure and victim is completely forgotten. Therefore, first time while ensuring participation of victim in Indian justice delivery system the word victim has been defined in section 2 by The code of criminal procedure (amendment) Act 2008 besides incorporating other rights of victim in various provision and same has been discussed here in after. The word as defined in code is as- ‘Victim’ means a person who has suffered any loss or injury caused by reason of act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir”
Engagement of private lawyer by the victim
Besides constitutional right under Article 22 section 303 of code which confers upon accused a statutory right to be defended by pleader of his choice, on the contrary victim case is at the mercy of public prosecutor appointed by state who conduct prosecution in indifferent manner because in all most in all states public prosecutor are not appointed from regular cadre but by political appointment on meager salary so they do not serve the objective of state because due to low salary they hardly ably to survive himself and it is un -denying truth that before service of nation or society. By inserting proviso in section 24 of the code by The code of criminal procedure (amendment) Act 2008 in criminal procedure code the right to engage a pleader to victim has been provided as under- “ provided the court may permit the victim to engage advocate of his choice to assist the prosecutor under this sub section.”
Further, section 301(2) of code stipulates that if any private person has engaged to prosecute any person in any court, such pleader has to act under the direction of public prosecutor conducting the case. in practical term, the extent to which victim’s pleader can participate in trial depend on the will of public prosecutor. Hence, there is no scope for going behind the letters of law to hold that the lawyer engaged by private party could address the court orally also in addition to submitting written argument as the sun section 301 also stipulates that such pleader can submit written argument with the permission of court, after evidence is closed in a case.[6]
OPPOSING BAIL APPLICATION
A large number of offender are able to secure bail from the lower court even where grave and serious crime are involved. Such offender often indulging in tampering with the evidence and threatening the witness and family member of victim. The state government make little effort for opposing bail application. Quite often , the offender is able to manage public prosecutor and even presiding officer of court .The victim or complainant have no locus -standi in criminal proceeding against the accused. However now court recognize that it is rule of prudence and natural justice that aggrieved party i.e. the victim must be given opportunity of hearing during trial against the accused. Nothing has been done by The code of criminal procedure (amendment) Act 2005 and The code of criminal procedure (amendment) Act 2008 in this regard but it is desirable that such rule should also be explicitly incorporated in the statute so as to ensure victim’s participation in criminal justice delivery system.
RIGHT OF APPEAL TO VICTIM
If an order of acquittal has been passed in a case which is instituted upon complaint, the complainant may prefer appeal to high court under section 378(4) of code. However, the victim had no right to file appeal against the order of acquittal and inadequacy of sentence awarded to accused in case of conviction where case is instituted on police report. This aspect of the matter has been taken care in the code of criminal procedure (amendment) Act 2008 and by amending section 377 of the code and right to appeal has been provided to victim and his legal heirs not only in case of acquittal but against inadequacy of sentence awarded to accused in case of conviction. The proviso to section 377 is as under[7] -
“Provided that victim shall have a right to prefer appeal against an 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.”[8]
Right of appeal by his or her heirs is not clear from plain reading of above proviso but when it read with definition of victim in section 2 of the code which is also inserted by the above amendment it is explicitly clear that the right of appeal can be also exercised by his or her heirs.
Right of compounding & plea bargaining.
Section 320[9] recognize that in respect of certain offences covered by sub section (1) thereof ,the victim has an absolute right to bring the process of trail and punishment of the offender to a halt. The victim has an unfettered right to compound the offence in such a case and oust the jurisdiction of court to punish the offender. The offences covered by sub section (2) can also be compounded by the victim with permission of court.
Similarly, under chapter[10] 21 A, right of pre-trial negotiation between accused and complainant through prosecution has been recognized in which accused agrees to plead guilty in exchange of certain concession by the prosecutor with the concurrence of victim. The benefit of plea bargaining is admissible only in offences punishable with punishment of 7 years or less and does not apply where such offence affects socio – economic condition of country or has been committed against woman or child below age of fourteen years. The benefit of plea bargaining is not only to accused but also victim gets suitable compensation from accused as per their settlement between them in lieu of concession in punishment to accused.
RIGHT OF COMPANASATION
Section 357 is an important provision which empowers the criminal courts to award compensation to the victim of offence out of the sentence of fine imposed on the accused. But in practice the above provision has its limitation “firstly- compensation can not be ordered unless a substantive sentence of fine is imposed. Secondly, compensation can be ordered only out of fine levied and not in addition to it. Thirdly, compensation can de directed to be paid out of fine realized only. This means, if fine is not realized compensation can not be directed to be paid. fourthly, the quantum of compensation could in no case exceed the amount of fine imposed; and amount of fine would again depend upon the limit up to which fine is prescribed for the offence and also upon the extent to which the particular court is empowered to impose fine under the prevalent law”.[11] And as such the above provision of law unable to achieve desired objective for which it was enacted. Therefore , in view of the above situation after long span of period on 30TH December 2009, Central government took care of the above highlighted inherent weaknesses of the provision and notified the code of criminal procedure (amendment) Act 2008 (5 of 2009) which relates for providing better deal in matter of compensation to victim of offence.[12] -
(1) Every state government in co-ordination with the central government shall prepare a scheme for providing funds for purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of crime and who require rehabilitation.
(2) whenever is recommendation is made by court for compensation ,the District legal service authority or state legal service authority as the case may be, shall decide quantum of compensation to be awarded under the scheme.
(3) If the trial court at the conclusion of trial, is satisfied that compensation awarded under section 357 is not adequate for such rehabilitation or where case ends in acquittal or discharge and victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified and where no trial takes place, the victim or his dependant may make an application to the state or district legal service authority for award of compensation.
(5) on receipt of such recommendations or on application, the state or District legal service authority shall after due enquiry award adequate compensation by completing enquiry with in two months.
(6) The state legal service authority or District legal service authority as the case may be to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefit to be made available free of cost on the certificate of police officer not below the rank of S.H.O. or magistrate of the area concerned or any other interim relief as the appropriate authority deem fit.
After this amendment victim is entitled to get compensation if the trial court at the conclusion of trial, is satisfied that compensation awarded under section 357 is not adequate for such rehabilitation or where case ends in acquittal or discharge and even Where the offender is not traced or identified or where no trial takes place, the victim or his dependant may make an application to the state or district legal service authority for award of compensation. Moreover, interim relief such as first –aid, medical facility etc. may also be provided on request of police or magistrate concerned in appropriate cases. For expeditious enquiry two months period has also been fixed in such cases, so that the victim may get compensation at earliest.
In the land mark decision ,Delhi high court first time in India ordered complainant women to pay fine of Rs 5 Lakhs for false sexual harassment complaint which was ordered to be paid to the accused (Victim ) of the case, holding that the women had defamed the 74 year old man, who has now retired. Women had alleged in the complaint that she was sexually harassed in 1996, while working as a secretary to the then chief personal officer in Northern Railways. [13] In this decision court has ordered de facto women complainant for her false sexual harassment complaint which was found false during trial by trial court judge Rajander kumar shastri and directed the women to pay compensation, saying "every man has his own status, however humble, and he has right to guard his reputation".
RIGHTS OF FAIR INVESTIGATION AND TRIAL
To ensure the fair deal during investigation to victim of rape central government by amending section 157[14] provided that in an investigation in relation to offence of rape, the recording of statement of the victim shall be conducted at the residence of victim or in the place of her choice and by woman police officer in presence of her parents or guardian or near relative or social worker of the locality. And similarly for early and timely investigation and trial of rape cases has been provided in S 173 (1A) provides that The investigation in relation to rape of child may be completed within three months from the date of report of incident in police station. And S 309- provided that when inquiry or trial relates to an offence under section 376 to 376 D of I. P. C., the inquiry or trial shall be completed within period of two month from the date of commencement of the examination of witnesses and also to over come allegation of gender bias central government had by amending S. 327 provided further that in camera trial shall be conducted as far as practicable by a woman judge or magistrate.
CONCLUSION
It is really commendable that central government has taken care of victim participation may be late which was all together forgotten. Now it is to be seen that efforts made are enough to ensure participation unless agency meant to fight on behalf of victim is strengthen which is in miserable condition in India. Unless both victim and accused lawyer are equally efficient so as to put up their case properly before court it can not be said to have that victim participation is equal in law and in my view this aspect of matter has not even considered while making amendment.
Another important lapse which I feel is that traditional and present justice delivery system justice is imparted on basis of evidence adduce in court and such evidence is given and which is popularly known as WITNESS and whose interest is nothing but discharging social obligation. Thus, the hearting development of present Indian society is that in now a days it is vary difficult to get competent witness of relevant evidence. Both the evidence and witness have became rarest of rare thing in present society and the obvious reason is this apathetic, to become as a witness, on the part of the constituents of Indian society, seems to be that to be become a witness mean inviting to him and his family economical, moral, political, family, religious and other problems. One may get many example in the newspapers where the witness are hurt, killed, adducted, raped, molested, defamed, tortured, misbehaved, out-caste and met the likes activities with him/her. Due to these possible problem, now, one person deter or avoid to become witness, irrespective of various provisions of Indian Penal Code 1860, Code of Civil Procedure 1908, Code of Criminal Procedure 1974, and Indian Evidence Act, 1872, which makes duty to testify.[15]The amendment has not taken care of problem of witnesses which is basis constituent of justice system.
The word victim has been defined vary narrowly with the object of providing some right to individual victim or to provided him/her compensation but some time and in present time generally society or group of person becomes victim and there victimization therefore not individual therefore, extensive definition of victim was essential and consequencal provision for their relief should also have been taken care while amending the above provision.
The last but never been least of any amendment is proper and effective implementation of the said provisions of law. As we know implementation of above provision has to be made by states government and I doubts that states governments provides sufficient fund and mechanism for victim compensation. Another aspect of the matter that responsibility of adjudicating compensation has been made on state/district legal service authority which is comprising of working judges and retired judges. It is beyond imagination that when judiciary himself fail in providing justice in time and in other words mounting arrear of pending cases has become challenge before him and same has not been shorted out by them what was the need to further burden that agency which is not performing their original task well. Compensation determination is not judicial work and it is some what quasi judicial nature, therefore, in the above situation matter of compensation adjudication must be entrusted to some other legal agency if the central govt. honestly interested in providing compensation to victim before healing the wounds of concerned victim but really what looks behind the scene that judges wants their own rehabilitation after retirement and this is some what post retirement rehabilitation scheme for judges and its is nothing for victim of crime. In past judges worked like Horse and lived like Hermit but now situation change altogether judges do not believe in work but they also wants to enjoy fruits of free
J. S. RAJAWAT
Dy.Director Prosecution
Anti Corruption Bureau
Rajasthan, JAIPUR
Victim under the criminal delivery system
[1] Dy.Director prosecution A C B Rajasthan
[2] TOI Dated 2.12.11
[3] 7th U N Congress on prevention of crime, held in 1985
[4] Rudhal sah v. state of ihar 1983 Cr. L. J. 1644
[5] Sebestian M. hongary v. union of
[6] Rakhan ojha 1988 Cr. L.J 278
[7] Cr.P. C. 1974
[8] Inserted by criminal amendment act 2208
[9] Cr. P. C 1974
[10] Section 265 a-265 k . Cr. P. C ,inducted by amendment of 2005
[11] Article Victimology by J S Rajawat published in C B I Bulletin April 1993 P-8
[12] Section 357 A code of criminal procedure. Inserted by criminal procedure amendment Act of 2008
[13] TOI Dated 12th dec.2011
[14] Inserted by criminal procedure amendment 2008
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