Victimology A necessary advancement in Human Rights jurisprudence

23, Nov 2017 | CJP Team | Join us

Victimology is a science which establishes a relationship between a victim and violators of law. It also deals with the rights of the victims in any criminal trial or proceedings and also with the rights of the accused. The concept of victimology emerged in the 20^th century during the closing of the World War II, where some criminologist took upon themselves to understand the relation between the criminal and the victim and obtain a better understanding of a crime its origin and its implications. This lead to the U.N charter for victim’s right which was similar to the European convention on the compensation of victims of violent crime.

Victim: The Forgotten Man

The victim is the forgotten man of our criminal justice system. He is the one who sets the law in to motion but later goes into oblivion. The victim’s right act of U.N. defines a victim as a person against whom an offence has been committed, which has caused him certain amount of damage or loss or injury either on his body or on his property. Under the 2009 amendment of Cr.P.C. [1] “a victim” is defined as ‘a person who has suffered loss or injury caused by the act or omission for which the accused person has been charged.’ The amendment also provided that the Court may permit the victim to engage an advocate of his own choice who would assist the prosecution. These amendments were reflected in various judgments.

Constitutional Validity of Victimology

The concept of victimology is a relatively young branch of academic research whose main objective is to gain knowledge about the victim of a crime and the amount of power abused by the accused. However the concept of victimology was recently added in the Indian Constitution. It was recently when the Supreme Court gave a new direction to the art 21 of the Indian Constitution, because of which the concept of compensation to the victim was added under art 21 of the Indian Constitution. The fifth law commission of India in the 42^nd report dealt with the concept of compensation to the victims of crime in India. The law commission referred to the “three patterns” concept of compensating the victim which is seen the code of criminal procedure of France, Germany, and (Former) Russia. The pattern includes:

• Compensation by the state.
• Compensation by the offender by means of fines or paying certain specific amount.
• Offender’s duty to repair for its damages.

Further the 142^nd, 144^th, 146^th, 152^nd, 154^th, and 156^th report emphasized on the concept of compensation for the victims and made certain contribution towards it. As result, the Government of India after considering various reports and recommendations amended the Code of Criminal Procedure code in the year of 2009.

The Best Bakery Case

Prior to the amendment, a victim was considered as forgotten man of the criminal justice system. However, it was in the Best Bakery case led by Citizen for justice and peace (CJP) under the guidance of Ms. Teesta Setalvad where the concept of victimology was broadly discussed and was later incorporated in the Indian legal system. The best bakery case was the first case to be tried in a “Fast track Court” which was specially set up to try the cases of violence which occurred during the “Gujarat Carnage” of 2002. The case enabled the Supreme Court to create various tools and methods which would help to secure the fundamental rights of the victims of a crime and provided the victim the fundamental right to have a fair criminal trial.This case acted as a landmark for the Indian Judiciary system as it not only dealt with the heinous crime of genocide, but also with issues like impact of media, hearsay evidence, witness turning away from their statements etc. the judiciary tackled these issues in an intellectual manner and paved way for future legislation. This case also gave the victim, the right to be heard in criminal trial which was inserted in Code of Criminal Procedure by the 2009 amendment.

Approach of the Court

The 2009 amendment gave equal right to the victim to make grievances before the Court by means of appeal which was seen in Bikhabhai v. State[2]. In this case, the issue was whether a victim could file appeal against the any order of acquittal passed in the favor of the accused?

The Court held that under Section 372 of Cr.P.C., a victim can file an appeal against any order of acquittal given by the Court. But it can do so only if the State has not preferred such appeal or the appeal for leave filed by the State has not been entertained by the court. Also, a victim can file such appeal only at the time of final hearing of the appeal.

• The case of BalasahebRagnathKhade v. The State of Maharashtra[3] dealt with the doctrine of victim protection, victim representation and victim rehabilitation. In this case the issue was whether a victim is required to take or apply for a leave from the court?

The court held that under the proviso of Section 372, the victim is not required to apply for or obtain leave of the Court to file any of the appeals. Also the court held such appeals should be placed before the appropriate Court for hearing.

• The victim in order to file an appeal in Court has the follow the procedure prescribed under Section 378 of the Code. This decision was upheld in the case of Guru Prasad Yadav v. State of Bihar[4]. In this case, issue was whether a victim can apply for a leave without following the procedure for application prescribed under sec 378 of the Cr.P.C.?

The court held that a victim is required to follow the procedure of application of leave. The procedure for filing such apply has been prescribed in sec 378 of Cr.PC. a victim is bound to follow this procedure. If a victim doesn’t follow this procedure then such application won’t be accepted and entertained by the court.

• However, the judgment of Jagmohan Bhola v. Dilbagh Rai Bhola,[5] overruled the judgment Guru Prasad Yadav v. State of Bihar and provided certain relief or benefits to victim. In this case the issue was whether a victim can file an appeal against inadequate compensation or an appeal against conviction for lesser punishment without taking a leave from the high court for the same?

The court held that a victim can file an appeal against conviction for lesser punishment or an appeal against lesser punishment without taking any leave of the High Court. It was further held that as all the three circumstances are on the similar footing under Section 372, the victim is not required to take any special leave of the High Court for filing any appeal against inadequate compensation or for an appeal against lesser punishment.

• In the case of Roma Saini v. NirmalSaini[6], the Court dealt with the issue of limitation pertaining to filing of such appeals. In this case the issue was whether a victim’s appeal against inadequate compensation or conviction against lesser punishment made under section 372 of Cr.P.C, is subjected to any limitations?

The court held that under the provisions of 2009 amendment an appeal made by a victim is not subjected any limitation. A victim is not bound by any time period for filing an appeal in Court. Further, it held that an appeal made by a victim under section 372 of Cr.P.C. isnotsubjected to any limitation in respect of time within which it could be filed. Also he is not required to take prior leave for filing such appeal. The Court is bound to entertain such appeal.

• But it was the case of Ram Kaur v. Jagbir Singh[7] where the concept of “victim” ofa crime was clearly defined. In this case the issue was whether a legal heir or a close relative of a victim can file appeal against an order of acquittal or an appeal against lesser punishment?
• The court held that a person would be termed as a victim, if he/she “has suffered damage, loss or injury caused by the reason of the act or omission for which the accused was charged for.” As a result, near relatives and the legal heirs of the victim can be termed as “victim” of a crime as they have indirectly suffered due to the crime committed by the accused.Hence a legal heir of the victim or his close relative can file an appeal against the order of acquittal on behalf of the victim. However they can file an appeal against such order only if the victim has deceased or passed away. Further the court held that such appeal can be filed either by oral or by written means.
• It was in the case of SuhasMusale v. Sameer Nalawade[8] where the power of the High Court regarding the matters of appeal was discussed. In this case the issue was whether the high court can entertain such appeal filed by the victim and whether the High court has the discretion to entertain such appeal?

The court held that the High Court has the sole discretion to decide whether to entertain such matters of appeal or not. The case also threw light on the fact that there was a need to make certain changes under Section 384 of the Code as there was no procedure to summary dismissal prescribed under this session.

[1]Amendment number 21 of 2009

[2]CR.MA/5522/2009

[3]CRIMINAL APPEAL NO. 991 OF 2011

[4]CR. APP (DB) No.582 of 2011

[5]CRL.A. 793/2010

[6]CR.APP. 978 of 2010

[7]Crl. Appeal No.205-DB of 2010

[8]CRIMINAL APPEAL NO.991 OF 2011