CHAPTER—4 VICTIM AND VICTIMOLOGY The concept of victim is an ancient one it is apparently clear that in early human civilization the victim’s themselves choose the offender's punishment and, if possible inflicted it. Revenge was the driving force of such individualist justice, and deterrence was its chief aim. With the development of the complex social structure, as the family, the clan, and the tribe developed the guilt for offences and the responsibility for avenging them was transferred from individual to group. Thereafter followed the period of compensation and restitution in term of money or goods. With the spread of cities commerce and banking and the development of legal institutions, the state gradually made itself the sole arbiter of disputes, the creater and enforcement of law and the defenders of the peace. As the modern state slowly envolved, the compensation that once had been enacted to counter balance the benefiting the state and inteded to punish the offenders. The interest of the victim were subordinated to those claimed by the government the representative of the community's larger Concerns. Thus, criminal justice system has always mobilised and proceeded against the accused, but the victim has not ever the least control over the criminal fate nor over the process leading to the disposition of the case. However, concept of crime is closely linked with existence of the victim. The victim has not separate entity. 123,Victim as define is Black's Law Dictionary is “The person who is the object of a crime or tort, as the victim of a robbery is the person robbed”! The Government code of CALIFORNIA defines the victim as any person who sustains injury himself, or pecuniary loss as a result of physical injury or death of another person on whom he is financially dependent and which is the consequences of an act considered to be a public offence.” According to Compensation Act of state of NewYork, "Victim" means a person who suffers personal physical injury as a direct result of crime.’ While widening the scope of the concept in modern context, K-P. Krishan and D.R.Singh observe "The victim is not necessarily an individual it can also be a collective entity like a corporation., or even a whole race of nation. The provisions of substantive criminal law will usually indicate when they are intended to he protected; For example, in the case of genocide, victims are not only those individual members of the national racial and or religious groups whose destruction had been the object of the crime., but also the groups as such" In other words victim may be a person against whom a crime is committed or who happens to be suffered from the crime.* eee am esas eh p.164. > Tid. p. 192 “ KP. Krishan and D.R Singh : Victim or crime, social change, September 1982, p.48 124VICTIM AND VICTIMOLOGY Further, "VICTIMOLOGY" drives from the Latin word “VICTIMA" and the greek word "LOGOS". "VICTIMA" has two basic meanings. One implies the leaving creature sacrified toa diety, or offered in performance’ ofa religious rite. The second meaning is that used in criminology and related fields. It refers to the person suffering, injured or destroyed by the action of another which may be due to some uncontrollable, quality in himself-in pursuit of an object, or purpose, in recompense of a overpowering emotion or as a result of events or circumstances. In other words "VICTIMOLOGY" basically refers to the study of the victim. If criminology could be described in a nut shell as the ‘science of crimes criminal, victimology could similarly be defined as the ‘science of crimes and their victims'.’ Every victim is not a victim of crime. There are victims of epidemic earthquakes, stroms, natural disorter tempest catastrophes and the like. Such victims may be? termed as crimeless victim & and are not subject of discussion. To be a victimin of crime there must be a commission of crime. If an act is not regarded or taken as crime, () The Historical Background History of the victim is as old as the crime itself and we have never yore, the victims of crime were paramount figures on the stage at criminal Betting. There are reference in MANUSAMRITI, the Book of Exodus, and HOMER'S Ilied to 5 Isreal Drapkin, Emilioviano : “Victimology : A new focus, Vol V. Lexington Books, Massachusetts, pla” 125compensation being paid to victims or criminal offences. Even before the introduction of Anglo-Saxon system of criminal justice in India the victim was not completely neglected.° According to SIR HENRY MAINE, The penal law of the ancient communities is not the law of crimes, it was a law of wrongs".” However in ancient Hindu Law punishment of crimes, occupied a important place than compensation for wrongs. The historical origin of the victims dominant in criminal procedure lies in the middle age and is plainly evident in the system of “compensation [compensation] in the Germanic common laws. The basis of primitive and early western law was personal reparation by the offender or the offenders family to the victim. When political institutions were largely based upon kinship ties or tribal organization and when there was absence of a central authority to determine guilt and the kind of punishment, same forms of revenge, blood fued, vendetta, pecurriary compensation were common practices. In the earliest history of mankind social control was in the hands of the individual primitive man who was alone in his struggle for existence. He alone-faced the attacks form outside. He had to * VIN. Rajan : Victimology in India, Ashish publishing House, New Delhi, 1995, p.5. ran ‘Nath Sen : General Priciples of Hindu Jurisprudence, Allahabad Law Agency, Allahabad, 1984, p-335 * Stephen Schafer : Compensation and Restitution to Victims of crime, Appleton-century-cafts, New Ye 1968, pp.3 to 12 126AND IMU) take law in his own hands. In fact he made the law-and he was the victim the prosecuter and the judge. He carried out the punishment in the form of revenge aimed at deterrence and compensation was exclusively personal. The primitive period mirrored the struggle for survival. It was probably not the idea of responsibility but rather the security of his power and the prevention of future crimes that guided the victim to ruthless retaliation and aggrevisely acquired compensation. Attack was the defence against attack and the state of war between the criminal and his victim made the sufferer a doer and converted criminal to victims.’ When the first primitive groups were firmly established,, the social control was maintained by kindered. An offence against individual was an offence against his clan of tribe, and although the punishment to be exacted from the offender was neither codified nor always standarised by offence., some form of restitution or compensation was invariably involved in the inter-relationship between the victim and offender. An individual did not punish another individual , families took revenge on families. This can be considered the origin of the concept of collective responsibility. Injury to the person was scale in accordance with the seriousness of the trespass and the social evaluation of the aggrieved party. The determination of damages involved five critical factors? the nature of offence the relative class positions of litigants? The solidarity and the behaviour of the two kinships groups involved in the dispute., the personal tempers and reputations of two principles * Stephen Schafer : The Victim and his criminal, Random House, New York, 1968, p.6. 127VICTIM AND VICTIMOLOGY and the geographical position of the kin groups." Early reference to compensation are sporadic and do not offer, clear information. The death fine Greece is referred to more than one in Homer; thus; in the 9th book of the ILIAD AJAX, in reproaching, Achilles for not accepting the offer of reparation and made to him by Agamemnon, reminds him that even a brother's death may be appeased by a pecuniary fine, and that the murderer having paid the fine, may remain at home free among his on people. Not only in the time of Greeks, but in still earlier ages when the Mosaic dispensation was established among the Hebrews; traces of restitution are apparent. "That dispensation, in its penal department, took special and prominent cognizance of the injured person as against the offender". For injures both to person and property restitution or reparation in some form was the chief and often the only element of punishment, Among Semitic nations the death fine was general and continued to pervail in the Turkish Empire. '’ In India according to tenents of Hinduism,, restitution and atonement were the ways of punishing the criminals. It was said that he who atones is forgiven NARADA was probably the _ first to recommend compensation to the victims by the offenders in order to expiate his sins. A mention may be made to the SMRITI for prescribing © id "bid 128corporal punishment and money compensation to victims, or his family for theft, assault, adultery, rape and manslaughter." KOUTILYA, in his classic work “ARTHASHASTRA records that when a citizen suffers at the hands of predator both the ruler and community were supposed to rally to help the victim. Necessary funds were raised by collecting punitive fines or from the public exchequer to provide relief to those who have sufferd owing the violation of law. In the SUSTRA period, the settings of compensation was treated as a royal right. For murder the offender was obliged by the king to compensate the relatives of the deceased or the king or both. In the time of Manu, compensation was regarded as a penance, Hence, it could be given to the priests. In all cases of hurting a limb, wounding’ or drawing a perfect cure,, or on his failure both full damages and "fine to the some amount. He who injured the goods of another,, whether. acquainted or unacquainted with the owner was required to have satisfaction to the owners and pay a fine to king equal to damage."* Where the offenders against society paid for his crimes with "AN EYE FOR AN EYE"; "A TOOTH FOR A TOOTH", he paid as an object of victims vengeance not, in compensation for the victims injury. The 48th and 49th books of the digest [LIBRI TERRIBLES] do not contain any clear reference to the consideration of the victim's role in case of or to restitution or "2 DAR Singh : Development of victimology in India, Indian Journal of Criminology, vol 13, No2, July 1985, Bp 144-145, "> “Manu Smriti VIIL, p. 287. 129ENA AE ONE eet compensation. There are some vague passage that indicate a persumption that in certain cases the judge might consider the civil claim within the scope of the criminal procedure. Because of the increasing importance of economic goods the delictual conditions started to change and the system of responsibility was transformed. Blood-fued faded out and phyical retribution began to be replaced by financial compensation. The Criminal and his victim introduced the redemption of revenge and submitted the judgement of guilt to negotiation."* However, it was only recognised towards the end of MIDDLE, AGES that the concept of restitution was closely related to that of punishment, and it was temporarily merged in penal law. In several systems, for example under the early American law, a thief in addition to his punishment, was ordered to return to the injured party three times the value of his stolen goods, or in the case of insolvency his person was placed at the disposal, of the victim for a certain time. Criminal justice served only his private interests, No other aspect of crime could compete with this concept in this privately owned and privately administered criminal law. It was indeed the GOLDEN AGE OF THE VICTIM. He had almost dictatiorial power over the settlement of the criminal case- No other time in the history of crime has the victim occupied such at advantageous position in criminal procedure. The victim was merely injured party, he was not thought to be involved in any psychological intricacies of crime causation, and pushed his very Stephen Schafer : The Victim and his criminal, Random House, New York, 1968, p.p. 11-16. 130advantage? as the object of a crime that was allegedly caused only by the criminal,, During that time it seems inconceivable that the victim's relationship with the criminal could have helped to develop or precipitate the crime- The “GOLDEN AGE" of victim had been an era when his possible participation in any wrong doing was not taken into consideration. (a) Victim: The Hibernation Period Tallack observes "It was chiefly owing to the violent greed of the feudal barons and medical acclesiastical powers that the rights of the injured party were gradually Infringed upon, an finally to a large extent, appropriated by these authorities, who exacted a double vengeance upon the offender, by forfeiting his property to themselves instead of to his victim., and then punishing him by the dungeon, the torture the stake, or the gibbet. But the original victim of the crime was particularly ignored. No other possible aspect of the victim’s role was taken into consideration and the victim became the “Poor Relation” of the criminal law. After Middle Ages., restitution as a concept separate from punishment seems to have been on the wane. Little as we know about crime, today even less was known then. The decline in the penological importance of restitution and non-recognition of the victim's functional role in crime gained support from the endeavor to find different bases of penal and civil liability, Generally speaking tort is an offence only against individual right, while the crime is an offence against the state. Crime means only the offender and his 131offence the victim's relationship to the crime viewed in a civil rather than in a criminal context. Court practice in the 16th and 17th centuries made possible the so called "Adhensive Procedure, which opened the way of discretion by a court concerning the victim's claim for restitution, within the scope of the criminal proceedings. Penal code of the 19th century also seem to give same support to the idea of restitution in the-form of adhensive procedure. This procedure appears in about half the laws of Fedral GERMAN states. Later on, the situation got worse and even in German law of criminal procedure., the idea of restitution was kept alive only by the- force of tradition.'° At the INTERNATIONAL PRISON CONGRESS held in STOCKHOLM in 1878, SIR GEORGE ARNEY, chief justice of NEWZEALAND and WILLIAM TALLACK proposed — general return to the ancient practice of making reparation to the injured. RAFFAEL GAROFALO raised the question at the International Prison Congress held in ROME in 1885 and wrote that reparation to the victim is "Matter of Justice and Social Security’ Today s victim cann't seek satisfaction on his own hands. At the time, though the state is not concerned with his precipitative caustive part in the criminal offence. Where there is no system of state compensation civil procedure and civil execution genera they offer the victim insufficient compensation. While the "Stephen Schafer : Compensation and Restitution to Victims of Crime. Appleton-century-crafts, metre **Raffado Grafalo : Criminology, 1914, p. 435 132punishment of crime is regarded as the concern of the state the damage to the victims is regarded almost as a private matter, it recalls the lonely man of the early days of social development, who by himself had to take revenge against those who harmed or otherwise wronged him. In the cases where the victim compensation the system either is not fully effective or does not work at all. The victim is lose ground. If one examines the legal system of different countries; one rarely finds instances where the victim of crime can be certain to except fully restitution. In Ancient civilizations the victim of an offence was the central figure in any criminal setting. "The victim had a vital say in matters connected with restitution or retribution. But slowly, as one A civilization give way to another, private revenge gave way to public justice. With the government taking responsibility for melting out justice, the offender has became primma dona and the victim is completely forgotten. ‘What happens to the victim if the survives an offence and he reports his victimization to the police? His misery restarts. He enters the gateway to the criminal justice system. He is faced with interrogations, delays, postponements, court appearances, loss of earnings, wastage of time and frustration and the painful realization down on him that the system does not live up to its ideals and does not service him-it services only itself and its minions. It the victims happen to be woman, her lot is much worse. 133(b) The Revival of the Victimology It is a parody on the vagaries of criminal justice systems of the developing world that there has been no conceptual study or empirical research regarding the victims of crimes. Even in the developing world such studies were not under taken, till 1947. But the bad experience of second world war acted as a catalytic agent for thinking minds in the criminological field to concentrate their thought processes on the vital elements for whose benefit, for whose protection, and for whose peaceful existence, organized society established systems of criminal justice, namely the victim It was only in recent times, that the criminal justice policy makers in the west began to pay alteration to the victims of criminal offences. Several countries in western and southern Europe, the United State, Canada, taking the lead given by Newzealand in 1963 have Legislated for payment of compensation to victims of crime front public funds. In India, the government sanctioned two pilot projects for the first time in 1980, one on the study of victims of homicide in Delhi and Banglore and the other on the victim of FATAL MOTOR VEHICLE ACCIDENT IN DELHI, These were maiden efforts at the institute of criminology and Forensic science in New Delhi. Then a seminar was organised on 'VICTIMOLOGY' from 9th-11th March, 1991 at Department of Criminology University of Madras, which was attended by eminent Criminologists, Jurists, Police Officers, Politician; Lawyers and Administrators. It's a little attention paid towards the victim at crime, "THE UNKNOWN MARTYR OF THE SYSTEM". In 1341985, a seminar on "Compensation to the Victim of Crime" was organised in VIGYAN BHAWAN IN NEW DELHI, Therefore the man in the street., who live exposed to crime victimization at any time in his life; in any part of the world, is being heard and cared for. No society calling itself a civilized welfare state have justification for ignoring the victims of crime. The universalistic interpretation of crime and revival of victims importance are in their early stages. They face a struggle to achieve further development and recognition. The revival of the victim importance includes the concept of viewing him and his offender as social phenomena that can be under stood only through their relations to their social environment and to each other.” (I) Defining A Victim Though legal institutions have developed over the past centuries the position of the victim has worsened the primary change has been in the status of the criminal which has led to continual increases in victimization. By itself, victim liability would not yield the tragic is same as it was experiencing to day the legal position of victims is same as it was at the turn of the century, victims have been made almost solely liable for any cost they incur. Too much attention has been paid to offenders and their right to the neglect of victims and the witnesses who testify in court 1 ‘Stephen Schafer : Victimology the victim and his criminal, Random House, New York, 1968, pp. 24.25, 135against them. The criminal justice system has long been notably indifferent to the plight of crime victims. Prosecuting attorney wants victims and other witnesses to be have effectively in court to tell their story and to persuade the court of defendant’s guilt, victims tend to be treated more likely pieces of evidence than like human beings. There is no institutionalized means by which crime victims can control decisions regarding either the prosecution or disposition of their case, although efforts have been made to include the victims opinion regarding the proper sentences in probation reports for the judge’s review waiting for their case to be heard victims may find themselves sitting near the offender and his family and friends, and perhaps, will under go abuse or threats the situation is often worsened by the offender who threatens more serious harm if the victim can not be certain they are safe in many cases threats are made by the offenders friends, relatives etc. One thing that has puzzled the public and policed is the senseless violence that often accompanies the cobbering of old people victims have been raped, beaten, set on fire locked in closets and tortured to death if 40 lakh to 60 lakh people were victims of any single disaster carthquake, fire or flood — the entire nation would react immediately under those circumstances collective action is organized. But crimes are inflicted on one individual at a time in thousands of scattered events over the nation even though there are more casualties due to crimes with a greater number of deaths and seriously injured each year than casualties caused by natural disaster, it is very difficult for a collective response disaster, to be made. A danger of being victim ofeee crime is continuous persistent and wide spread, while a natural disaster that endangers people in small and defined area is episodic and short of duration’® Our law commission and other pre- legislative organs have not diverted their attenti0on towards that who cares, what happens to victim or how he is tossed about on the torrents of the criminal justice system high judicial personages important law officers and jurists and law teachers have taken great pains to emiolerate the condition of the accused deriding at cries of legitimate child of the crime and the criminal. (III) Victim Offender Relationship Almost all the crime involve an injury physical mental, financial or moral done by one individual to another crime upsets the balance between the criminal and victim. The revival of the victims importance tends to involve among other things, the criminal victim relationships as a partial answer to the crime problem while compensation or restitution deal with the victim role and the possibility of correction of the criminal in the post crime situation the criminal - victim relationship may point to the genesis of a crime and to better understanding of its devolvement and formation victim- offender relationship is one of the most important notions in victimology , Mendelssohn calls the victims and his offender the “penal couple”. '* Robert Reiff : The Invisible Victim, Basic books, Inc Publishers, New York, 1971, p.1. 137VICTIM AND VIC LIMULOGY For Schafer victim-offenders relationship may contain the origin of victimisation. The marital status of the offender and that one person is the spouse or a friends of an acquaintance or just a stranger may contain the seeds of crime married person of both sexes are more often victims than persons in any other marital status, it has also been observed that legally divorced individuals are less often victims of the violent crimes than those who are in other relationships with the criminal.” President commission on crime found that a primary group relationship seems more important in crime against person, especially in homicide cases. It was further found that 80 percent of the murder and aggravated assault victims belonged to primary group relationships in England little over 40 percent of murder are suspected to be committed by husbands in 25 percent of 20 female murder cases, the suspect was either a relative or a lover.” WOLFGANG States that when a man is killed by a woman, he was most likely to be killed by his wife” and it is also found that a woman was more likely then a man to kill her mate . according to Schafer,” Female criminal commit violent crimes against their spouse three times more often than do males , and nine times more often against their children”. " Stephen Schafer : Introduction to criminology, Reston Publishing company, Inc, Reston Virginia, 1976, pp.151-158. ® President's commission on crime, Report of the president's commission on crime in the District of Columbia, Washington, D.C. 1966. ® Marvin E, Wolfgang: Patterns in criminal Homicide, university of Pennsylvania press, Philadelphia, 1958, p.213, 138——— According to Hentig the relationship between the victimizer and the victim are very intricate. The victim, one who suffers and the Victimizer, one who harms appear in victimization in a close interpersonal relationship and the victim plays determine role with the victimizer.” For CHo, “the victim and the victimizer should be understood in terms of victimization incidence and relationships. Both “affinity” and “propinquity” factors should be considered for differentials in participations, commitment and involvement in victimization. Though not intended for creating an impression on that the victim and victimizer are “guilty by association” we are suggesting that the interaction and the relationship should be understood objectively rather than assumed to be hallmark of the victimizer.”* The victimizer and the victim act on each other directly by sharing a common place, or indirectly by symbolic relationship. Hence, the victim can be viewed as a dependent variable by examining the conditions which predispose certain kinds of person to victimization . for Hudson and Galway “the central thrust of the study of victim criminal relationship is that some variable extent the officially labeled victim of criminal act may directly share in responsibility for the victimization “ there fore the performance of the victimizer should be seen a shared responsibility . form this point of view , who may take on the role of victim or victimizer in ® Hans Von, Honting: The criminal & His victim, Yale university Press, New Heave, 1948. ® Cho, Sung Tai: “Criminality, victim, and victimizer, victimology: A new focus, Vol 1. Drapkin & ‘viano (Eds) Laxington Books, Massachusetts, 1974, p.p. 93-98. 139UMMULUGY particular situations may have more to do with sheer chance than with anything else. The role of the victim may be of varying nature in different ways a victim can contribute to the victimization in a study conducted by separovic, the statistical profile of the murder — victim relationship, the victim precipitated one out of four homicide cases. HOROWITZ and AMIR found that the victim precipitated one out of five rape cases.” According to Fooner if “A person has not acted with reasonable self-protective behavior in handing his money, jewelry or other valuable and has become the victim of robbery, he cannot be considered an innocent victim he has created a “temptation”. “Opportunity” situation, giving the criminal incentive and help. Victim precipitation is culture time and place bound according to FATTAH and VIANO, the personal qualities of the victim has major role in this selection of their victims for SUTHER LAND thieves’ have own” code of Ethics. They generally follow same rules in the selection of their victims, A large firm or government are both considered by many targets for victimization, the impersonal character , the wealth and the indirect harm are likely to facilitate victimizations.”* * Joe, Hudson & Buri Galway: Concerning the victim, charies C.Thomas. Publihser, Springfield, 1975, 12 V.V. Devasia, Leelamma Devasia: Criminology Victimology & Corrections, Ashish publishing. House, New Delhi, 1992, p.95. * Ibid p.96 140SILI EM AND VINE IV. Victim, S Position In Criminal Justice System The present position of the victim under the criminal justice system is best explained by justice Krishna lyre in the following words:~ Tears shed for the accused are traditional and trendy but what has the law done for the victim crime the unknown Martyred.”” In the broader perspective MICHAEL FOONER, an eminent criminologist has summed up the victim‘s position as the History of crime and punishment in the whole civilized world reveals a steadily increasing concern with the treatment of the situation of the victim.”* In this context another eminent Indian author MAHMOOD BIN MOHD. Has observed: Broadly speaking the agencies concerned with administration of criminal justice are the legislature, the police, the courts and the correctional services. The legislature provides the broad framework legislation with in which all other agencies operate the police is concerned with the enforcement of law. The court with the administration of justice and correctional services with the treatment of the criminal the attention of all these agencies is focused on the criminal who holds the centre of the stage all the time.” Gustice) V.R. Krishna Iyer: The criminal process and legal Aid, Indian Journal of criminology. P.10, ® Published in “Science, Sep 2, 1966, Vol 153, No.3740. Mahmood, Bin Muhammad: Victim in criminal Justice, social change, Jan 1980, p.5. 141a Our system of dispensing justice through the current instruments of substantive and objective laws has become acquainted. Even a slight deviation in vision can result in an alarming distortion to the native and the artless victims of crime or lawlessness the entire legal system is a spider ‘s web, spun to enable the petty offenders to creep through and the dare devils to break through our system of justice has completely ignored the victims of crime in its biased concem for the rights of the offenders. Victims not only suffer financial losses but often pay injuries sustained. They and their witnesses are intimidated by the offenders who readily released on bail. The victims have to liquidate their assets mortgage their homes or sustained they and their witnessed on bail, the victims have to liquidate their assets Mortgage their homes or sacrifice their health while the offender escapes responsibility for the have he has caused the judges do not give although they should as much weight top the interest of the victims as they give to the truth finding process and prevent the courts from doing justice the hold of the state on the violaters of law is slippery and shaky its attitude towards the victims is callous . The victim, form the moment of commission of the crime to the date of conviction , is taken as a call —boy attending on the convenience of the criminal justice agencies the problem and parole authorities do not need him or heed him: The police treat the victim as an unavoidable nuisance, not providing sympathy, support substance or protection. He is 142summoned to the police station at odd horns and kept there for long periods often insinuations are hurled at him. The next phases are arrest and an application for bail. Prosecution does not consider the victims apprehensions, he does not opposes the bail application vigoursly and seldom conveys to the court his fear and pleas. At the trial the prosecutor often does not bother to know the full facts from the person who has been actually through the nightmare and who has suffered the murderous assault or has been an eye- witness to a crime. After a few casual question by the prosecutor the examination-in chef is quickly concluded the quailing victim is exposed to cross examination ‘s sallies and offensive insinuations. The defense is allowed to question, the victim, on incidents going back to his childhood, but neither the jury nor the judges are ever informed that the offender had prior convictions for similar offences and that he had been to prison for several times for other offences if he is found guilty the sentences given is not just and does not reflect how terrible the crime was the offender is out of custody after some months or a year. The victim is left to reflect on how lightly —or lavishly the victimizer is being treated by the system that is called justice. During the course of trial the accused is treated as a privileged person and is provided with all possible help including a defense counsel if necessary at the cost of the state. Even after conviction emphasis is laid on reformation and the stress is put on humanization of prisons and more humane treatment to offenders the victim have been contributed by the sufferer a tax payer. but the sufferer “s anguish is 143that he or she must try to repair all that the victimizer had destroyed. What can not be repaired must perforce be endured the wheel of criminal justice system moves not with the commission of a crime. In the administration of justice it is of prime importance that justice should not only be done. It but must also appear to have been done it is one of the cardinal principal of criminal law that every one is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before an impartial and competent court justice and reason would suggested that such person should not only be allowed but also be given all the facilities to move the machinery of law against the alleged culprits according to CR.P.C. Any person can approach a competent judicial magistrate and lodge a complaint with him regarding the commission of an offence.°° Here the criminal process is marked at the instance of the victim of the crime. The invocation is completely discretionary at the instance of such a person. ‘A magistrate taken the cognizance of an offence on a complaint examines upon oath the complainant (victim complainant) and the witness present, If any.*” A victim complainant intending to initiate criminal proceedings in respect of an offence has two course open to him. He may lodge a first information report before the police if the offence is cognizable one or he may lodge a complaint before a competent * Section 190'of Criminal Procedure Code, 1973, * Section 200 of Criminal Procedure Code, 1973 144i judicial magistrate irrespective of whether the offence is cognizable or non — cognizable. In a trial of a warrant cases if the proceding are initiated on a complaint and if the offence is compoundable or non cognizable, the court has discretion to discharge the accused if the complainant is absent on the date of the hearing.” In summon case the magistrate has the power to acquit the accused in the event of non appearance of the complainants on the day of the hearing.®* (a) Arrest Of Accused Person And Investigation By Police Police is the first agency for administration of criminal justice and is considered to be the first line of defence against crime. They occupy a strategic position in respect to social defence .No society can exist without the support of an organized police force, whom police fails to arrest, prosecutor fails to charge and court fails to convict, further crime may be encouraged. If the police decide to pursue the case the collection of evidence is the next step. This may include physical evidence. Although the actual incidence of such drastic steps is rare investigation texts advise police to cut up rugs if an arrest is not made immediately and if the victim does not know the offender he or she communally, be asked to report to police station to view photos and line —ups or to help make a composite sketch.** * ‘Section 249 of Criminal Procedure Code, 1973 ® Section 256 of Criminal Procedure Code, 1973 * Kathorine W. Ellison and Robert Buckhout Psycology and criminal Justice. 1981, p. 44. 145VICTIM AND VICTIMOLOGY In many instances the case ends here while some crime of violence, robbery and crimes against property to be informed of a progress or disposition of their cases. (b) Pre-Trial Detention And Bail Provision for pre-trial detention of suspects and for release on bail very from system to system. A consideration that frequently affects the decision whether to release a suspect is the estimation of the danger of his tampering with the evidence including exerting pressure on the victim . Criminal procedure code speaks much for the right of the accused during the period for pre-trial and under trial detention. Day by day the law on bail is becoming liberal and the court is prone to release the accused on bail as soon as the accused is out of gates of police lock-ups or judicial lock-ups , it is believed half of the case goes infamous of the accused the victim feels intimidated on the sight of the accused. (c) Prosecution If a suspects is identified and arrested and necessary material evidence is collected against the accused the case passed up to the hands of the prosecutor, because the prosecutor serves the state not the victim is secondary to winning the case the unco-operative victim who fails to appear may find him or herself facing contempt of court charges of detained as a material witness even with speedy trial provision attorneys for defendants particularly those out on bail, may have their clients waive the right knowing the delays cause victims, witnesses to become frustrated and fail to appear leading to 146VICTIM AND VICTIMOLOGY the case being dropped for non — prosecution. Even if the cases has been “continued” several times the victim is expected to be present each time a new trial date is set. In each of these instances the victim may be required to take time off form work. The accused has the tight to chose his or her own counsel. Victims have no chose our the prosecutor with whom they must work and may have to as many as a half dozen assistant prosecutors. He is put to grueling cross examination by defense counsel. In other words the victim’s place in the criminal justice system is first as “gate keeper” regulating entry of many cases into the system. After that the victim serves as evidence that a crime has occurred and that the accused was the offender, although a crucial part of the process, the needs of the victim often have been secondary to those of the adversary system in battle over the fact of the accused. (d) Conviction and Sentence When an accused is found guilty and convicted the court has to pass sentence on him according to law. In India the court has to abide the mandatory provision of section 360, 361 on releasing the accused on probation of sections 235(2) and 248 (2) on sentence hearing under the new Cr. P.C. and the probation of offenders act, 1958. Victim has no say at any stage in the process : There is a tradition in most countries to the effect that neither pardon nor amnesty may jeopardize the right of the “Third Parties” including of course victims. 147VICTIM AND VICTIMOLOGY (v) _ Victim Compensation In India A number of countries of world have introduced a scheme of compensation to victims of crime , but the position in India does not appear to be satisfactory thought there are provision in a number of acts for payment of some compensation to the victim either by the trial court or by a specially set up claims tribunal. It is a harsh reality that under the present legal system in India, the entire payment by way of fine is taken by the state leaving the victim to his own plight, although there are some provisions in the CODE OF CRIMINAL PROCEDURE, 1973 empowering the criminal to order for the payment of compensation to the victims of crime, form the fine imposed by the loss caused by miscarriage of justice and further the amount paid is limited to the amount of fine imposed and ordered only, if the accused is convicted. Thus, plainly speaking our criminal justice system hardly provides for any reparation for the injury and derives the victim to the time consuming, expensive and tedious civil litigation for relief. Hence, our criminal justice system invariably avoids the proverbial call that justice should not only be done, it should be punitive or protective but it ought to be restitutive. Yo be precise, section 250, 357, 358, 359 of the CODE OF CRIMINAL PROCEDURE only deal with compensation which is not at all conducive to the modern concept of victim’s restoration of the loss caused by the accused. 148VICTIM AND VICTIMOLOGY (a) Compensation Under Section 250 of the Cr .P.C Section 250 of the code is designed for payment of compensation to those accused against whom complaints are brought in the court with any reasonable ground of accusation. Apart from providing that compensation up to the amount of fine which the magistrate can award to the accused, it lays down the procedure governing such proceeding. The section requires that the offence must be tribal by a magistrate. Therefore where, the offence is exclusively tribal by a court of session compensation order under section 250 can not be passed. This section is mainly designed to safe-guard the interest of the victims of false accusation. Such victims are not victims of personal injury or financial loss in traditional sense. This section is a check on malicious prosecution and a remedy for victims of such prosecution . (b) Victim Compensation Under Section 357 Of The Cr .P.C Section 357 of the code of criminal procedure , 1973 corresponds to sections 545 and 546 of the old code. The law commission in its 41" report proposed the omission of the word ‘substantial’ from old section 545 (1)(b)- sub section (3) of the section 357 as newly added, and subsection (4), though new also incorporates part of the provision of sub-section (1) of the old section. Section 357 provides for the award of expenses or compensation to the prosecution or other person ‘out of? fine levied on the accused. The new sub section (3) provides for payment of compensation even in cases where the fine does not form a part the sentence section 357 reads as follows: 149VICTIM AND VICTIMOLOGY When a court imposes a sentence of which fine does not form a part the court may when passing judgment, order the accused person to pay , by way of compensation , such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been compensation may be awarded only by the trying court, but also by the high court in revision so sentenced. The award of compensation should be a part of sentence and order made upon a conviction of an offence and should be found upon a statement of the loss damage of expenses ascertained at the trial the order should be made when passing the judgment when compensation is awarded under section 357, it should be clearly state on the order whether the payment out of fine is intended to defray the expenses incurred in prosecution or to make compensation for the injury caused by the offence committed .In awarding compensation, no sum in excess of the loss actually suffered by the complaint should be ordered to be paid. Where a complaint can not recover compensation in a court, compensation can not be awarded to him under clause (b), but a sum may be awarded to him under clause (a) to defray the expenses of the prosecution .A court can not awards compensation for alleged offences other than those which from the subject of the injury in the case in which the order is made, compensation under this section can be ordered only if the accused is convicted and sentenced. It is rather surprising that the power of the court to grant the amount of compensation under section. 357(3) , he can do so with out an apparent limit and the amount of compensation in such a case even 150VICTIM AND VICTIMOLOGY be Rs 10,000 or Rs 50,000 depending upon the loss or injury to the victim. The supreme court has laid down some guidelines for the award of compensation. In this context it has been held that it the duty of court to take into account the nature of the crime , the injury suffered the justness of the claim of compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation. It was further observed that section 357 empowered the courts to award compensation to victims while passing judgment of conviction. This power is intended to do some thing to reassure the victims that he or she is not forgot on by the criminal justice system . (c) Compensation Under Section 358 of the Cr .P.C, Section 358 of Cr. P.C. provides the following : (i) Whenever any person causes a police officer to arrest another person, if it appears to the magistrate that there was no sufficient ground for causing such arrest the magistrate may award compensation not exceeding one hundred rupees to be paid by the person to causing the arrest to the person so arrested for his loss of time and expenses in the matter , as the magistrate may thinks fit. (ii) In such cases, If more persons than one are arrested the magistrate may, in like manner award to each of them such compensation not exceeding hundred rupees , as such magistrate thinks fits and. 151VICTIM AND VICTIMOLOGY (iii) all compensation awarded under this section may be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such terms not exceeding thirty days as the agitate directs unless such sum is sooner paid under section 359 Cr P.C. when any complaint of non cognizable offence is made to a court, the court may on conviction of the accused, order him to pay to the complainant in whole or impart, the cost incurred by him in the prosecution, in addition to the penalty imposed upon them . (d) Police atrocities and compensation by the Court :- For a long time after independence the Courts in India continued to give primacy to the doctrine of “sovereign functions” and rarely granted relief in petitions filed against the state for vicarious liability for excesses. The turning point came in 1978 in Maneka Gandhi’s* case when the Supreme Court held that any state action affecting life and liberty of the people assured under article 21 of the Constitution has to be “right, just and fair, and not arbitrary. fanciful and oppressive”. Thereafter, there was progressive judicial activism for protection of human rights In the first phase, the Supreme Court in Nandini Satpathi v. P.L. Dani* upheld the right of an accused to secure the services of a lawyer of his choice at the time of police interrogation. In first Sunil Batra’’ case putting bar-fetters on, and handcuffing. of prisoners °S Maneka Gandhi v. Union of India AIR 1978 SC 597 * AIR 1978 SC 1025 * Sunil Batra v, Delhi Adminstration, AIR 1978 SC 1675 152VICTIM AND VICTIMOLOGY was regarded a kind of torture, cruel or degrading treatment in terms of Article 5 of the Universal Declaration of Human Rights and prescribed procedural safeguards. In the second Sunil Batras case,” the Supreme Court considered solitary confinement of prisoners as a human perversity which should be avoided and issued suitable guidelines. In Hussainara Khatoons cases™ of the Supreme Court made provision of legal aid at state cost compulsory in cases of poor and indigent accused under trial in criminal cases, for seeking bail and also for defence at the time of trial. As the impact of Supreme Court’s decisions did not produce the desired effect, in the second phase the Court ordered the state to pay compensation for wrongful desertion excessive torture and custodial deaths. In Rudul Shah V. State of Bihar®®, the petitioner was kept in jail for nearly 14 years after his acquittal, on the ground of insanity. The Supreme Court ordered the petitioner’s immediate release and directed the state to pay him Rs. 35,000 as companion for deprivation of his liberty. In Gauri Shankar Sharma v. State of U.P.*!, two police-men were sentenced by the Supreme Court for severely beating a suspect for extracting a confessional statement, and his deliberate torture on non-payment of bribe, resulting in custodial death. Expressing their deep concern on custody deaths, the Court observed “Deaths in police custody must be seriously viewed for otherwise we will help take stride in the direction of % Sunil Batra v. Delhi Adminstration, AIR 1980 SC 1579 3° Hussainara Khatoon v, Home Secretary. State of Bihar AIR 1979 SC 1360 * AIR 1983 SC 1086, * AIR 1990 $C 709 153VICTIM AND VICTIMOLOGY police raj.” In Nilabati Behera (Smt.) v. State of Orissa,” the Supreme Court while ordering compensation of Rs. 1.5 lakh by the state to the petitioner for custodial death of her son aged 22 years, reiterated that compensation for contravention of human rights and fundamental freedoms as guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights In the third phase, the Supreme Court directed that besides recovering the compensation amount from erring police officials, they should also be prosecuted. In Arvinder Singh Bagga v. State of U.P.,® the Supreme Court ordered that compensation of Rs. 10,000 each to be paid to the lady and her husband be recovered from the concerned police officers, and the SHO, SI and 10 to be prosecuted for illegal arrest, causing humiliation and torture of the petitioners in police station for no fault of theirs. Finding little improvement, in Khedat Mazdoor Chetna Sangath v. State of M.P.“ the Supreme Court directed the C.B.1. to impartially investigate and prosecute officers, however, high for torturing and handcuffing innocent tribals. In Inder Singh v. State of Punjab" while deciding a habeas corpus petition against alleged abduction of seven persons by senior police officers and sundry policemen, the Supreme Court directed the Director of C.B.I. to personally-conduct inquiry in the case. On January 18, 1996", the Supreme Court sentenced a senior Haryana LP.S. Officer to AIR 1993 SC 1960 © ‘AIR 1995 SC 117 “AIR 1995 SC31. ® AIR 1995 SC 312. “© Times of India, January 19, 1996 154AND V: x imprisonment for 18 months for perjury and Contempt of Court ina case of illegal detention and abduction of two children from Agra in 1992. Again on May 9, 1996,*” the Supreme Court, on the report of C.B.1., sentenced another senior L.P.S. officer of Assam to three months’ imprisonment for “covering up” unnatural death of an undertrial prisoner three years ago. Then, on May 13, 1996, again acting on the C.B.I. report, the Supreme Court ordered the State of Punjab to pay Rupees 10 lakhs as compensation to the parents for abduction and murder of an Advocate, his wife and two years’ old child and falsely Implicating an innocent person, and also pay Rs. 2 lakhs to the latter as compensation for the sufferjng caused to him due to false implication and remaining In jail since 1993. In spite of severe strictures passed, fines imposed and imprisonment ordered by the Supreme Court on police personnel for violation of human rights there is no abatement in reports about illegal detention of innocent people at police stations, harassment of complainants by non-registration of FIRs, extortions of bribe and indiscriminate use - of third degree methods during interrogation of suspects leading to custody deaths.** The importance of affirmed rights of every human being needs no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial Times of India, May 10, 1996 * Soo 1996 Cri LJ. Journal Section 125 at pp. 126, 127. 155VICTIM AND VICTIMOLOGY violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. The award of compensation in the public law administration is without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim for the tortious acts committed by the functionaries of the State.” In Harbans Kaur v. Union of India,” that was a case where one person was called to the Police Station through the constable and thereafter, his where about was not known. A habeas corpus petition was filed and the claim for compensation was made and the Supreme Court directed an enquiry to find out whether the petitioner was mercilessly beaten in police custody which, ultimately, led to his death. © DK, Basu v. State of West Bengal. AIR 1997 $C 610 5 1995 (1) SCC 623 156VICTIM AND VICTIMOLOGY ics of cases relating to custodial deaths and There are a s medical negligence in which the apex court and various High Courts have awarded compensation.*! 5. See Nilabati Behera v. State of Orissa. AIR 1993 $C 1960 (1993) 2. SCC 746 (1993) 2 SCR 581 1993 (2) UI (SC) 503 (2) 1993 (2) Scale 309 1993 (2) U) 94 1993 Cri UJ 2899 1993 (2, CCR 107 (SC) 1993 (2) AC) 787 1993 AIR SCW 2366; State of MI’. v. Shyam Sunder Trivedi, (1995) 4 SCC 262 1995 (4) ft (SC) 445 1995 (3) Scale 343 1995 AIR SCW 2793 1995 (2) SC) 451 1995 (3) CCR 36 (SC) 1995 SCC (Crl) 715; People’s Union for Civil Liberties-v. Union of India AIR 1997 SC 1203 1997 (3) SCC 433 ; 1997 (2) fe (SC) 311 1997 (1) Scale 706 ; 1997 (1) Crimes 190 (SC) ; 1997 CCRIB7 (SC) ; 1997 @) Supreme 429 ; 1997 AIR SCW 1234; Kaushalya v. State of Punjab, 1996 (7) Scale (SP) 13; Solgabai Sunil Pawar v. State of Maharashtra, 1998 Cri U) 1505 Born) ; 1998 (2) Mah U) 410 ; 1998 (@ Rec Cri R 564 1998 (1) Born UR P 448: Savitri Behera v. Stale of Orissa, 1998 Crl U) 4716 (On); Chanchala Swain (Smt) v. State of Orissa, 1997 (1) On UR 384 ; 1997 (B4) Cut UT 86; Sudha Rasheed (Mrs.) v. Union of India, 1995 (1) Seale 77 (SC): Nasiruddin v, State, Criminal Writ No. 585, of 1996 decided on December 16, 1997; D.K. Basu ¥. State of West Bengal. 1997 Crl U) 743 : AIR 1997 SC 610 ; 1997 (1) SCC 416 ; 1997 (1) [F (SC) 1 ; 1997 AIR SCW 233 1997 (2) Bom CR 656 1997 @) Cu) Uk 1631; Geeta (Smt) v. Lt. Governor, 1999 Crl U) 1099 at p. 1101 Del); D.B.M. Patnaik v. Stare of A.P., AIR 1974 SC 2092 1975 (3) SCC 185 1975 (2) 5CR24 1975 Cr U) 556 1974 Cr UR (SC) 605 1974 SCC (Crl) 803; Ghandabai Yadav v. State of MP.. 1997 Crl U) 3844 1997 Crl ‘Uk (MP) 44 ; 1997 (1) Jab U) 287 (MP); Dharmishtaben Narendrasinh Zala v. State of Gujarat. 1997 x1 U) 3866 1997 @) Cu) UR 1043 1997 (1) Cu) Ut] 600 1997 G) CCR 308 (Cu); Jagruti v. S.C. Uiaudhari.P1 1998 Cri U 3251 (Ca)) 1998 Cr1 Uk (Cu)) 18; Samii Lactha v. State of Gujarat. 1998 Cal U) 2146 (Cu)) 1998 (3) Cu) LR 2365 1998 (1) Cu) UK 992; Praful Kumar Sinha v, Stare of Bihar, 1994 Supp (3) SCC 100 1994 SCC (Cr1). 1666; Kamini Bala Tukdar (Smt) v. State of Assam, 1997 Crl U) 874 (Cau) 1997 (il Cau Uk 16; Supreme Court Legal Aid ~ Committe v, State of Bihar. 1991 G) SCC 482 1991 (2) AC) 1034 ; 1991 SCC (Cri) 639 1991 Cr LR (SC) 657; Jacob Goorge (Dr) v. State of Kerala, 1994 (3) SCC 430 1994 (3) JT (SC) 225 1994 Cri U 3851 1994 @) Scale 563; T’aschim Banga’ Khet Mazdoor Samiry v. Stare of West Bengal, AIR 1996 SC 2426 996 (4) SCC 37 1996 (6) JT (SC) 43 1996 (A) Scale 282 1996 (4) AD (SC) 360 1996 (4) Supreme 260 1896 (2) CCC 286 (SC) 1996 @) CLIT 343 (SC) 1996 Lab IC 2054: 1996 3) $C) 25 : 1996 (6) SLR 346; Manju ihatia (Mis) v, New Delli Municipal Corporation, AIR 1998 SC 223 ; 1997 (6) SCC 370 1997 (5) [F (SC) 574 1997 (4) Scale 350; Christian Community Welfare Council of Iudin (Regd) v Government of Maharashtra, 1996 (1) Bom CR 10; Soubhagya (Smt) v, Chief Secretary, State of Kamataka, 2001 Cr1 U) 238 (Kant); Shyama Devi v. National Capital of Delhi, AIR 1999 Del 264 ; 1999 (49) DR.) 86; Lawyer's Forum for Human Rights, Calcutta v, State of West Bengal. 1997 Cr; U) 1 762 1997 (101) Cal WN 604 ; 1997 (1) Cal HIN 485 1997 (1) Ca) U) 258 1997 @~ All Cr, LR 303 1997 (2) East erl C259; Canga Devi v. Commissioner of Police, 1992 (48) Del UT 714 Del); Kamla Devi (Smt. v. Government of National Capital Territory of Delhi, 2000 Cr U) 4867 (Del) IDB); Kewal Pat) v. State of UP.. 1995 (3) SCC (600 : 1995 Cr, UJ 2920 : 1995 AIR SCW 2236 : 1995 (2) Scale 729 1995 (2) U) 291 1995 (2) Crimes 304 ; 1995 (3) COR I (SC) ; 1995 SCC (Cr1) 556 : 1995 @) SC) 540; Dhanno (Smt) V. Union of India, 2001 Cri U) 4119 Deb (08); Murti Devi v. State of Delhi, 1998 (9) SCC 604 ; 1998 (9) (SC) 48 ; 1998 SCC (Cri) 1330; Chandania v. State of UP.. 2001 Cri UF 2090 (All) (OB); Anguri (Smt) v. State, 2001 Cr1 U) 3697 Del) (DB); T. joiey (Smt) v. Union of India, 2000 Cr1 U)'766 (Gaul 1DB) Suguna (Smt) v. State of Karnataka, 2000 Cr U 4408 (Kant); Madina (Mst. v. State of Ralasthan, 2000 Cni UF 4484 (Rai) 157