Unfortunately, our criminal justice system has not made any adequate arrangements for the victims of crime, violence who suffer loss, injury, death and deprivation, etc., at the hands of the perpetrator.
The law on the subject provided in Section 357 of the Code of Criminal Procedure regarding payment of compensation to the victim after conclusion of criminal trial is found inadequate. Moreover, it was seldom pressed into service by the trial court excepting in few cases. So far, the victim was a forgotten story in the justice process and the State was only satisfied by punishing the offender through its prosecution wing.
Thus, it was felt on all hands that there must be sensitivity on the part of functionaries of the criminal justice system towards the victims of crime from the inception when law was set into motion, during trial and afterwards on determination of guilt of the offender. It is gratifying that Section-357 was amended in 2009 and in pursuance of the mandate of Section-357 (A), some States including Odisha have framed “The Victim Compensation Scheme” making provision for compensation for child victims who are sexually abused being victims of rape, trafficking and acid attack. The State has constituted a “Victim compensation fund”. The State legal Services Authorities and District legal Services Authorities have been empowered to give compensation to the victims in terms of the direction of the court.
The Malimath Committee on Criminal Justice Reforms and, earlier, the law Commission of India suggested award of compensation to the victim for his or her social rehabilitation, which is the State’s responsibility. The Malimath Committee suggested that the victim has the right to participate during trial, can engage lawyer and oppose bail and file appeal if dissatisfied with the quantum of punishment. The judge-made laws in this regard handed down by the Supreme Court and different High Courts in exercise of their writ jurisdiction has also undoubtedly strengthened the law on the place of victim in criminal jurisprudence. The Supreme Court had also earlier directed constituting a victim’s compensation fund by the State and emphasised the need for compensation and rehabilitation of the victims particularly in sexual violence cases.
In the areas of compensatory jurisprudence besides Rudal Saha case which is a path breaking judgment, in many other cases like Nilabati v State of Orissa, Saheli v Delhi Police Commissioner and Chandrima v State of West Bengal, the Supreme Court directed for payment of compensation to the victims. The court even ordered that the compensation amount be realised from the offenders and erring public servants found guilty of such crimes and excesses. The case of Chandrima is an example where the apex court while awarding compensation to the Bangladeshi woman who was gangraped in the Howrah railway yard did not accept the plea of Sovereign immunity claimed by the railway officials accused of the offence.
It’s gratifying to note that in the case of Khatri v Bihar, popularly known as the Bhagalpur blinding case, the Supreme Court for the first time raised the significant Constitutional question that where the State deprived a person of his life or personal liberty in violation of the right guaranteed by Article 21, the court under Article 32 gave monetary compensation to the aggrieved. The question involved is ‘exploration of a new dimension of the right to life and personal liberty’. An important question considered by the court in Khatri was: Would the State be liable to pay compensation for acts of its servants outside the scope of their power and authority affecting the life or personal liberty of a person and, thus, infringing Article 21IJ The court answered in the affirmative, saying that otherwise Article 21 would be reduced to nullity. The case of Rudal Shah versus Bihar was an extreme case of administrative laxity where the court in a writ petition for habeas corpus awarded damages against the State for breach of the petitioner’s right of personal liberty because he was detained in jail for 14 long years despite his acquittal by a Sessions Court.
It is worthwhile to note that recently the concept of plea bargaining has been added to the pages of CrPC providing for disposal of a criminal case by amicable settlement where the accused is charged of offences where the punishment is less than seven years of imprisonment, provided the accused is prepared to submit to the court his plea of guilt out of his free will, agreeing for a reasonable compensation to the victim. Similarly, the Domestic Violence Act, 2005 has provision for compensation to the victim of domestic violence. It has been made clear that the authority deciding such cases should be alive to the provision of compensation to the victim of domestic violence and for her rehabilitation in the family or elsewhere.
In this backdrop, it is worthwhile to note that in 1985, the United Nations adopted the declaration on basic principles of justice for victims of crime and abuse of power. The declaration recognised four types of rights and entitlements to victims -- Access to justice and fair treatment which includes prompt redress, right to be informed of benefits and entitlements under law, right to necessary support services throughout the judicial proceedings and right to protection of privacy and safety; Right to restitution - return of property lost or payment for any loss suffered as a result of the crime; Compensation - when compensation is not fully available from the offender or other sources, the State should provide it at least in violent crimes which resulted in serious bodily injury, for which a national fund should be established; Personal assistance and support service including material, medical, psychological and social assistance through governmental, voluntary and community-based mechanisms.
So far, the victim was a forgotten story in the criminal justice system and the functionaries like police, court and correctional services were also not very much concerned to provide relief to the victims in any from whatsoever. The State gets satisfied only in punishing the offender through its prosecution system. If this prevailing state of affairs continues, time will come when people will take law into their own hands and there will be private vengeance and the society will go back to the days of Code of Hammurabi which believes in retributive criminal justice, i.e., “tooth for tooth”, “eye for eye” and “nail for nail”. So, the trial court should be cognizant to this new legislative safeguards and relief provided in Section 357 (A) of CrPC and apply this provision freely so as to do complete justice to the victim while convicting the offender.
Concluding, one important aspect is the necessity of change of mindset of the functionaries of the criminal justice system to develop a victim-friendly attitude.
(The writer is a former Special Judge, CBI, Bhubaneswar and Prof of law, lal Bahadur Shastri National Academy of Administration, Mussoorie)