Criminal Victimisation and Justice Administration in India

Mudit Jain[1]

It is known that the forces which govern the application of criminal law are relevant to theories of crimino-genesis and theories of formal social control. However, primary concern should be the victim, his/her recovery, rehabilitation and recompense.

The UN-Declaration (1985)[2] provides that ‘victim’ means “those who individually or collectively have suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states including those prescribing criminal abuse of power. Victim also includes the immediate family, dependents etc.”[3] According to Cr.P.C., ‘victim’ means “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”[4]

In the theories of criminology, when given a certain actus reus and mens rea, the characteristic of the victim shouldn’t play any role in determining the gravity of a wrong committed i.e. a murder should be considered a murder irrespective of whether the person killed is a male or a female, black or white, a child or an adult, etc., and hence, the punishment it merits should be same.[5] This is the retributive theory of punishment.[6] But India does not solely rely on retributive theory and has more reliance on reformation, wherefore, it was once stated by the Apex Court that “Legally, a witness has no obligation whatsoever unless they agree to testify… But the community has a legal and moral responsibility to respond to criminal victimization in order to preserve order and protect the community.”[7]

The Indian statutory conditions are in a very dilapidated state in this regard. There is neither any statutory scheme nor any comprehensive legislation for providing compensation to the victim.

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Despite that, the Courts have on several occasions provided compensation to the victims. In cases like Rudul Sah,[8] the Supreme Court enunciated that monetary compensation could be awarded for the violation of fundamental rights, hence, evolving the principle of compensatory justice in the human rights jurisprudence.

To overcome the shortcomings of the judicial administration, the courts have also evolved the concept of PIL. Any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Art.226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this Court under Art.32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.[9]

Further, S.357A was inserted in the Cr.P.C.[10] which envisages a comprehensive ‘victim compensation scheme’ in recognition to the right of the victim of a crime to compensatory justice.[11] Many other provisions of Cr.P.C. like Ss.357(1), (3) & (4), 358(1) & 359(1) and also S.5 of the Motor Vehicles Act, 1988 and S.5(1) of the Probation of Offenders Act, 1958 etc. provide for compensatory relief to the victim.

India doesn’t have any uniform sentencing policy. There exist absolutely no guidelines regarding the same. It is despite the fact that the ‘Malimath Committee’ in 2003 and several others have often stressed on bringing certainty in awarding sentences.

In cases like Dhananjoy Chatterjee alias Dhanna v. State of West Bengal,[12] the Supreme Court has stressed on the retributive aspect of punishment and yet in a plethora of cases, the Hon’ble Court has propounded the theory of correction and reformation.

There are several other problems associated judicial administration and criminal victimization, which the victims face, the worst being related to the institution of police and their non-fulfilment of duties. The problem arises when there occurs a non-registration of the First Information Report (FIR) by the police. It’s highly disappointing that such ill-practices still continue, despite the advent of S.166A of the IPC, which has made the registration of FIR mandatory and clause(c) of the same makes its non-compliance as a punishable offence.

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It has been clearly held that ‘credibility’ or ‘reasonableness’ of any information as provided by the informant to the police is not and should not be the condition precedent for the registration of an FIR,[13] still sometimes the police refuse to register the FIR on the aforementioned grounds. 

Thus, it would not be wrong to conclude that the already vulnerable victims are becoming victims of the criminal justice system itself.

The need of the current time is to integrate victim’s rights in the legal framework which would involve incorporation of international norms and standards relating to rights of victims for protection, participation and reparation in the Indian Criminal Law. The lacunae in the Indian penal laws because of which justice becomes an illusion to the victims of crimes have to be removed so as to ensure a victim-oriented criminal justice system wherein the victims, particularly the poor, marginalised and the under, privileged are given an opportunity to vindicate their rights.[14]

[1] Student.

[2] The United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,General Assembly 29 November 1985 (A/RES/40/34).

[3] Id. Arts. 1 & 2.

[4] The Code of Criminal Procedure, 1973 §. 2(wa).

[5] Joshua Kleinfeld, A Theory of Criminal Victimization, 65 Stan. L. Rev. 1087,1089 (2013).

[6] George P. Fletcher, The Place of Victims in the Theory of Retribution, 3 Buff. Crim. L. Rev. 51, 51 (1999).

[7] Mohan Lal & Anr. v. State of Punjab, AIR 2013 SC 2408.

[8] Rudul Sah v. State of Bihar and Anr., AIR 1983 SC 1086.

[9] S.P. Gupta v. Union of India & Anr., AIR 1982 SC 149.

[10] The Code of Criminal Procedure (Amendment) Act, 2008

[11] N.V. Paranjape, Crime and punishment 192 (2016).

[12] Dhananjoy Chatterjee @ Dhanna v. State of West Bengal, (1994) 2 SCC 220.

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[13] State of Haryana v. Bhajan Lal, AIR 1992 SC 604.

[14] Supra 10, 198.

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