HUMAN RIGHTS OF THE VICTIMS OF CRIME IN THE CRIMINAL JUSTICE SYSTEM OF INDIA

Prof. D. Banerjea

The theme consists of three significant expressions, they are:

Human Rights Victims of Crime Criminal Justice System

The first question that arises at the very outset is:

What is understood by Human Rights?
The first documentary use of the term Human Rights was made in the charter of united Nations, 1945. One of the declared goals of the United Nations war to reaffirm faith in Fundamental Human Rights.

It is acknowledged that Human Rights are universal that belong equally to all people, because they are human beings. It is the modern name of what has hitherto been known as Natural Rights. Simply speaking, they signify the essential conditions for full development of Human beings.

The basic nature and special features of Human Rights have been identified. They are briefly outlined below:Human Rights are
a. b. c. d. e. f. g. Indivisible Universal Inter-dependent Inalienable Inherent Inter-related Available to all, irrespective of nationality, religion, gender, economic status, political affiliation, social standing and the like. h. They are Birth Rights, that is, the rights accrued from and acquired by birth i. They may be of individuals, and also of groups as for examples of children women, minorities and prisoners

Human Rights
j. Have definite linkage with human development k. They empower people to strive for realization of their full potential l. They improve governance m. They are founded upon the dignity of the individual. The essence of Human Rights is dignity of a Human Being n. They are supported and sustained by the Rule of Law.

Human Rights are not the bounties of the State or gifts of the Government. It is the duty of the State or the Government, as the case may be, to recognize and enforce them

At this stage, it is appropriate to appreciate the meaning of the term victims of crime. The victims of crime are those who have already suffered harm or are perhaps still suffering, directly or indirectly, as a consequence of crimes having been committed. The immediate family or dependants of the direct victims, who are adversely affected, are also included within the meaning of the term Victims. The plight of the victims does not end with the crime but it continues. It may even enhance, Subsequent to the crimes, they face the rigors of the reality, such as lack of support system, insufficiency of social assistance, and sense of insecurity. They also experience the complexities of police investigation, magisterial inquiry and criminal trial.

Criminal Justice System in India is not only a crucial component of the government but it is also an important instrumentality of the State for preservation of peace in the society and protection of the rights of the people. It is charged with the duty of maintaining order in accordance with law. Protection of the innocents and punishment of the offenders are the goals it attempts or endeavors to achieve. The internal security alone is no longer the only field of its operation. It is now called upon to play a positive role and to contribute its mite affirmatively towards social justice, economic development and national welfare, through impartial, fair and judicious enforcement of the Rule of Law

The Criminal Justice System is composed mainly of four vital organs, namely, (i) Criminal Courts, (ii) Police Organisations (iii) Correctional services and (iv) Prosecution machineries

Rights of the victims recognized under Cr. P.C (i) He/she may lodge an information with the Police, regarding commission of a cognizable offence (ii) He/she may file a complaint in the Court of Competent Judicial Magistrate, alleging that an offence (may be more), cognizable or Non-cognizable, has been to committed and inviting the Magistrate take action according to law vide see 190 (1) (a), read with 2(d) Cr.P.C.

(iii) He/she may figure as a witness in a complaint case during preliminary procedure U/S 200 Cr.P.C. (iv) He/she may be examined by the Police as a wilness u/s 161 Cr.P.C. during investigation. (v) There is scope for statements of the victims as witnesses being recorded by a Competent Magistrate u/s 164 Cr.P.C. (vi) The victim may appear as a witness in a
complaint case or be produced as a witness in a police case, at the hearing connected with an Inquiry or Trial.

(vii) In a complaint case filed by the victim, he/she may directly and actively participate in the prosecution but he/she stands on a different footing in a case instituted on police report. (viii) In a trial before the Court of Sessions, the Public Prosecutor is the only authority to conduct the prosecution (sec. 225 Cr.P.C.). The victim may engage an Advocate, but the latter will have no right of audience of his own. (ix) The victim may, as a person, who suffered harm in consequence of an offence committed against him/her, compound the offence, provided that it is compoundable u/s 320 Cr. P.C., with or without the consent of the Court.

(x)

(xi)

When the victim filed a complaint and the proceeding arising out of it is a summons case pending in court, he/she may withdraw the complaint, at any time before the final order is passed (vide Sec. 257 Cr.P.C). There is no provision for withdrawal of a complaint in a warrant or sessions case. The victim, if he/she is the complainant, may with the consent of the court, withdraw charge other than those on which the accused has been convicted by the court in that case. Vide Sec. 224 Cr.P.C.

(xii) The victim is entitled to participate in the meeting meant for working out a satisfactory disposition of the case, where the accused has voluntarily made an application for plea bargaining (vide Section 265 B, read with Section 265 C of the Code of Criminal Procedure). (xiii) That apart, the victim, if he/she happens to be the complainant, has to be associated with the process of plea-bargaining and given notice for hearing (vide Sec. 265 B Cr.P.C).

(xiii) The victim may be awarded compensation by the Court u/s 357 Cr. P.C., either out of the fine imposed by the court upon conviction of the accused or when fine does not form part of the sentence, by an additional order while passing the judgement of conviction. It is for the accused found guilty, to pay such compensation to the victim. The court has the power to grant compensation independently of the sentence inflicted. (xiv) The victim, if he/she is the complainant in a non-cognizable case may be awarded costs by the court if it convicts the accused.

The Supreme court of India, through its creative process of interpretation, has affirmed, even expanded, certain human rights of the victims. A few examples are given below. They are not exhaustive but illustrative Right of the wife of a missing person (her husband) to get compensation AIR 1984 SC 1026. Right of the mother of a child to get compensation from the government when the child was beaten to death by the Police. AIR 1990 SC 313

Right of the victim to lodge F.I.R 2002 S.C C (Cri) 1087 Right of the victim to an opportunity being heard

AIR 1990 SC 313

Right of the victims of sexual harassment at place of work to seek reliefs in terms of the guidelines the Supreme Court laid down in this behalf (1997) 6 SCC 241 Right of the Victim of rape to have camera trial (1996 (2) S.C.C 384).

Rights of the Victims of rape to legal assistance and compensation (1995 SC. (Cri). Right of the widow and children of the deceased (call him victim) to get compensation under Cr. P.C. AIR 1996 SC 372 AIR 1988 SC 2127 AIR 1975 Sc. 1625 Right of the victim to receive compensation from the State Government, because of his detention in prison for 14 years (1983 Cr. L.J. 1644)

Right of the victim to get compensation in a case where death was caused by the negligence of the Doctor (1996) 4 SCC 332 Right of the victim to be informed of the outcome of investigation and to raise objection to the final report submitted by the Police, asking for discharge of the accused (AIR 1985 SC 1285). Right of the victim to present a petition against withdrawal of a case. Such a right may be exercised by the father of the deceased victim. (2001 Sec (Cri) 59).

Right to get compensation from the Government against illegal detention and killing, of a person. 1995 Sec. (vi) 585 Right of a victim (here mother of a 9 year old child) to get compensation for assault by the police. AIR 1990 S.C 533.

It is evident that the miseries of the victims have not been adequately addressed or even left out of consideration. Victims are ignored, may, forgotten.
Right to access to mechanism of Justice Right to prompt redress through formal and informal procedures that are expeditious, fair and inexpensive iii. Right to plead iv. Right to know v. Right to the heard vi. Right to participate in the connected legal proceedings vii. Right to be informed of the progress of the case at all important stages viii. Right to be inpleaded ix. Right to be represented x. Right to file appeal/revision i. ii.

xi. Right to legal assistance xii. Right to financial support xiii. Right to medical aid xiv. Right to emotional and psychological care xv. Right to be protected xvi. Right to assist the Court in search of Justice xvii. Right to get compensation xviii.This right should not be confined only to cases resulting in conviction of the accused but ought to be extended also to cases independent of and without conviction. In appropriate cases, right to receive compensation from the State/Government has to be clearly recognized and effectively enforced

xix. Right to restitution xx. Right to rehabilitation xxi. Above all, rights to be treated with humanity and respect.

If these rights are to be promoted and protected, the imperative needs may be concisely put in the form of six reform oriented points of action. They are:
a. Enactment of a special law, specific to victims b. Constitution of appropriate authorities for implementation, when they do not exist or do not function effectively or are insufficient c. Establishment of victim compensation fund properly and adequately d. Conduct of sensitization programmes for the personnel of the C.J.S e. Involvement of the NGOs for pro-active participation in the process of implementation

f.

Organising awareness campaigns, highlighting the rights of the victims and appealing to the citizens for doing what they may in support of the rights of the victim

All these rights are crying to be fully accepted by the society, duly sanctified by law and firmly executed by the Criminal Justice System