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Association of Retired Senior IPS Officers (ARSIPSO)

This is with reference to my letter No. ARSIPSO/GS-BSD-4/2023 dated. 10/08/2023 on the 4th B.S. Das Memorial Lecture, which had to be rescheduled for unavoidable reasons.

The 4th B.S.Das Memorial Lecture to be delivered by Shri Anil Kumar Sinha, IAS (Retd.), on the subject Disaster Management: Creating Safer Communities, has now been rescheduled for October 14, 2023 as per the following:

Conference Room No. 2, India International Centre, Max Mueller Marg, New Delhi, October 14, 2023 (Saturday)



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FORGOTTEN VICTIMS - Sankar Sen, IPS (Retd.)

 
 

In our criminal justice system based upon Anglo-Saxon adversarial pattern, the victims of crime are very often forgotten and neglected. During the last 100 years, there have been far-reaching changes in criminal justice systems concerning the rights of the accused during the investigation of crime, prosecution of the offenders and punishment to the accused in the event of misconduct. Statistics on the offenders, details of arrest by the police administration and release of criminals from the penal institutions are all kept. But very often collection of various aspects of information relating to the victims remains neglected. When a citizen commits crime, he questions the authority of the state. In the process, the focus of the state shifts from the victim who has suffered loss and injury towards the offender. The victims are marginalized and the state stands for the victims to punish and prosecute the offenders.

After the II world war, the countries like France, Germany, U.K. and USA there emerged a progressive school of thought in criminal justice system which tried to shift the focus of attention to victims who deserve redress and very often fail to get it. The historical evolution of the penal system from private vengeance to the state administration of justice resulted in a criminal justice system in which the victims play a very secondary role.

According the U.N. General Assembly Resolution (General Assembly Resolution, 40/34, November 29, 1985) victim means person or group of persons who individually or collectively have suffered harm including physical or mental injury, emotional suffering, substantial impairment of the fundamental rights through acts or omissions that are violation of criminal laws operating in member states. The UN Declaration for Basic Principles for Victims of Crime and Abuse of Power was adopted by the General Assembly at its 19th Plenary Meeting on November 29, 1985. The Declaration emphasized the need for assistance to the victims of crime at all stages and specified basic standards of treatment for them.

INSENSITIVITY OF THE POLICE
In the prevailing criminal justice system in India, the victim faces various problems and handicaps. He is summoned to the court repeatedly. Inherent delay and frequent adjournments, expenditure in the court processes and uncertainty of getting justice in spite of all the ordeals are some of the issues, which confuse the minds of the victims. The most common and frequent problem faced by many of the victims while reporting a case is absence of receptive and sympathetic attitude of the police towards the victims. The traumatized victim comes to the police station with great mental stress. He is often treated with total lack of courtesy and sensitivity. Victims experience great difficulties in getting cases registered, and even after registration, investigation is done very carelessly and slip shod manner because of the multifarious commitments of police officers or due to ulterior motives. The presumption that the prosecutor adequately represents the victim is often not correct. It is contradicted by the reports of many victims. Very often, whether the offender will be prosecuted or not is influenced by considerations other than the interests of the victim. It is also known that prosecutors often do not disclose the impact of crime on the victim and his family to the sentencing authority.
In America, the growing perception is that the criminal law should be responsive to the needs of the victims was eloquently expressed by the President’s Task Force on Crime (1982), which asserted that “Victims, no less than the defendants are entitled to their day in courts. Victims no less than the defendants are entitled to have their views considered. A judge cannot evaluate the seriousness of a defendant’s conduct without knowing how the crime has burdened the victim”.


COURT PROCEDURES
Victims often find the court procedures as cumbersome and frustrating. The civil trial takes the form of offender versus the state. If the victim often feels that nobody cares for his suffering, it is actually so, because institutionally nobody does. The victim and the defendant have to stand as witnesses during the trial, but the victim unlike the defendant, can be subjected to severe cross-examination by the both the counsels. Research work on the subject done in various countries have shown that the victims demand not only compensation or the punishment of the offenders, they also wish to be recognized as important and necessary participants in the criminal justice system. To be heard is as important as being compensated.

Some kind of victims’ integration in the criminal justice process have been tried in many countries. In USA and parts of Canada, the right has been granted in the use of Victim Impact Statement (VIS), which is a statement made by the victim and addressed to the judge. It contains the description of the harmful financial, social, psychological and physical consequences of the crime on the victim. It also includes the statement concerning the victim’s feelings about the crime, the offenders and the proposed sentences. It has been argued in favour of the VIS that the effectiveness of sentence will increase if the court knows the feelings and agonies of the victim. But others have contended that victims may turn out to be vindictive and the objective approach of the court may be influenced by the subjective pressure of the victim. The research work done by the US Justice department, however, shows that less than 10 per cent of the victims reported crime in order to see that the offender is punished. Very often, the victims want compensation, help and consultation rather than heavy punishment. In United States, the Supreme Court ruled that consideration of VIS during sentence hearing was constitutionally permissible (Payne versus Tennesse, III S.Ct. 2597 (1991).

Research studies on victims participation in criminal justice process has also revealed that it has both negative and positive advantages. The advantages are, as some have argued, that the sentencing will be more accurate if victims convey their feelings and the criminal justice process will be more democratic and better reflect the community’s response to crime. But opponents have alleged that a gain for the victim is a loss for the defendants. Because victims are believed to be vindictive and unforgiving, it is assumed that their participation will result in harsher sentences . Some jurists have also opined that to bring victims back into the criminal process is to revert to the eye-for-an-eye system that inappropriately breaks down the distinction between civil and criminal law.

In USA, the President’s Task Force on Violent Crime in 1981, recommended the development of federal legislation that would establish federal Office for Victims of Crime in the US Department of Justice and federal funding to support state victim compensation programmes and local victim assistance programme. The Victims of Crimes Act-1984 established crime victims fund based on the collection of fines from the federal criminals. It also recommended the establishment of the Attorney General’s Task Force on Family Violence in 1983. Its 1984 report stimulated federal action requiring state compensation programs to cover victims of family violence who receive federal funds. It further recommended an amendment to the US constitution according victims the right to be present and heard at all critical stages of judicial proceedings.

COMPENSATION TO THE VICTIMS OF CRIME
International Covenant on Civil and Political Rights (1976), indicates that an enforceable right to compensation is conceptually integral to human rights. Article 9(5) of the Covenant lays down “any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. Switzerland had a scheme of compensation to victims of crime since 1937. Subsequently other states like UK, USA have passed victims of crime compensation schemes. In England, the penal reformer Margery Fry in 1960s propounded the concept that the state should provide financial reimbursement to the victims of violent crimes. New Zealand was the first state to adopt a victim compensation programme in 1963. Similar laws were passed Great Britain and different states in USA. The victim-oriented criminal justice gained international recognition with the adoption by United Nations of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This UN document encouraged other nations to pass laws expanding the rights of the victims. It has been suggested by some scholars that compensation schemes may be financed from fines or prison wages. This has already been done in Italy where under a 1974 Act, three-tenths of the prisoner’s earnings go to the victims of crime . However, these funds are not adequate. Besides deduction from a prisoner’s wages are liable to be detrimental to his rehabilitation and involve hardship for his family. A special compensation scheme for the victims of crime is the need of hour.

INDIA
In India, at present there is no comprehensive legislation except in the field of motor or factory accident for compensation to victims of crime. Only existing provision regarding payment of compensation to the victims is contained in the section 357 of Cr.P.C. It provides compensation for loss or injury caused by the criminal offence to the victim after fine is imposed by the court. It is however, not mandatory for the state to pay compensation to the victims of crime. Compensation can also be awarded only if the offender is convicted of the offence with which he is charged. The amount of compensation is not uniform. It varies from case to case. However, Section 357(3) of Cr.P.C. provides payment of compensation even if fine does not form part of the punishment. The amount of compensation the court can order is flexible enough to make it truly compensatory. In Hari Kishan and State of Haryana versus Sukhbir Singh (AIR 1988 SC 2127), the court observed that section 357 (3) is an important provision but the courts have seldom invoked its perhaps due to ignorance of the object of it. “The power of the court to award compensation is not ancillary to other sentence, but it is in addition thereto. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is indeed a step forward in our criminal justice system. We therefore, recommended to all courts to exercise this power liberally so as to meet the ends of justice in a better way”.

The 47th Report of Law Commission regretted that the courts do not exercise the statutory power as freely and liberally as could be desired. It also recommended the insertion of a clause in Indian Penal Code requiring the trial court to pass compensatory order payable out of the fine imposed on the victims of crime. It also suggested an amendment of section 357 of Cr.P.C. to make obligatory for courts to record reasons for not doing so in suitable cases. However, these suggestions did not find favour with the lawmakers.

In 1992, the government of U.P. through an amendment of to section 357 of Cr.P.C. provided that where the victim is a member of the Scheduled Caste or Scheduled Tribe and the person convicted is not such a member, then it shall be obligatory for the court to order compensation to the victims of crime. The person who fails to pay the compensation, is normally required to undergo the imprisonment in default of the said payment. However, there are many instances of default and the victims have suffered in consequence.

Sympathizing with the plight of victims under the Criminal Justice Administration, the Supreme Court and High Courts in India have evolved the practice of awarding compensatory remedies. The apex court’s decisions in Nilabati Behera versus State of Orissa {(1993) 2 SCC, 746} and Chairman Board versus Chandrima Das {(2000) 2 SCC 465} are illustrative of this new trend of using constitutional jurisdictions to do justice to the victims of crime. In 1985, the Indian Society of Victimology based in Chennai prepared a Bill for Victim Compensation and submitted it to the government of India. No follow up action so far has been taken on this. Malimath committee in its report “Reform in the Criminal Justice System” has suggested that it is an appropriate draft for initiating further action.

1 D. J. Hall, (1991) Victim Voices in Criminal Court: The Need for Restraint, American Criminal Law Review, 28, pp. 233-66)

2 V.N. Rajan, (1981) Victimology in India: An Introductory Study, pp.15-16


The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.

 
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