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Chapter V

Criminal Justice Delivery System in India:


An Analytical Overview
5. 1 Introduction
In the last chapter the researcher discusses in detail the Indian
Constitutional and legislative safeguards to protect the rights of victims of
crime. The researcher tries to analyse these provisions in detail and to
interprete these provisions to know the applicability of such provisions to
protect the interest of victims of crime. The Constitution of India takes
utmost care and caution to protect and help victims of violation of human
rights.

The Code of Criminal Procedure is the main procedural law to


protect the rights of victims of crime. The Code have various provisions
to deal with victims of crime, the researcher analyses these provisions in
the last chapter with an intention to find out the specific provisions
related to victims of crime. Along with this Code, the researcher also
gone through with Indian Penal Code and Indian Evidence Act to know
the various provisions which have concern to victims of crime. To study
the procedural laws and substantive law is essential to have a complete
glance to know the various provisions related to crime victims.

The researcher has already discussed the constitutional and


legislative mechanism to protect the rights of crime victims in the last
chapter; in the present chapter the researcher tries to trace out the various
hurdles while implementing the legislative provisions to protect the rights
of crime victims. The Indian legislative mechanism always tries to give
justice to victims by punishing the offender with appropriate punishment.

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Hence, in this chapter the researcher intended to find out various
loopholes in the existing criminal justice system and to give appropriate
suggestions to uplift the status and position of victims of crime.

To trace out the hurdles in the path to give justice to victims, it is


essential one to know the nature of Indian criminal justice system. We
know that there are mainly two types of criminal justice systems in the
world i.e. adversarial criminal justice system and inquisitorial criminal
justice system. To know the position and status of victim, it is essential
one to study the features of these two crimial justice systems. Both justice
systems insist upon right adjudication of the accused and protection of the
innocent. But there are basic differences as to rules of procedures in each
of these systems. Each system has its own merits and demerits while
giving justice to victims of crime.

5. 2 Adversarial Criminal Justice System


The system followed in India for dispensation of criminal justice is
the adversarial system of common law inherited from the British Colonial
Rulers. The accused is presumed to be innocent and the burden is on the
prosecution to prove beyond all reasonable doubt that he is guilty. The
accused also enjoys the right to silence and cannot be compelled to reply.
This right is guaranteed by Constitution of India in the form of
fundamental right1 and also a universally recognised right of the accused
under Art. 14 of the International Convention on Civil and Political
rights.
In the adversarial system truth is supposed to emerge from the
respective versions of facts presented by the prosecution and the defence
before a neutral judge. The judge acts like an umpire to see whether the

1
See Art.20 (3) of Indian Constitution.

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prosecution has been able to prove the case beyond reasonable doubt. The
trial is oral, continuous and confrontational. At the heart of the trial lies
the principle of orality, which provides that evidence should generally be
received through the live, oral testimony of witnesses in court.2
In the adversarial system, the parties use cross-examination of
witnesses to undermine the opposing case and to discover information
and other side has not brought out. Hence we can say that, parties in the
adversarial system enjoy a high degree of freedom of proof, which largely
extends to the manner in which witnesses are cross-examined. As the
adversarial system does not impose a positive duty on the judge to
discover truth he plays a passive role. The judge neither takes part in
investigation nor gives any instructions to prosecution.
As the researcher already discussed each system has its own merits
and demerits, the adversarial system insists upon strict adherence of
proceduaral law which results into less room for the state to be biased
against the accused. It provides ample opportunity to uncover the truth in
a laboratory of courtroom. This model allows both parties to fully air
their grievances and reach a final solution by a disinterested and impartial
judge. The main advantage of this system is that there is not a direct
involvement of the judge in the investigation otherwise it will lead to his
predisposed to a formulation of the critical propositions. As the
adversarial system does not impose a positive duty on the judge to
discover truth he plays a passive role. Along with this the individual’s
right to privacy is best preserved under it.
The main disadvantage of this system is that, the system is heavily
loaded in favour of the accused and is insensitive to the victims plight and
rights. Another thing is that in most of legal cases in this system do not go
to trial; this can lead to great injustice when accused has an unskilled or
2
Jonathan Doak, Victims Rights, Human Rights and Criminal Justice, Hart Publishing, (2008), p.34.

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overworked attorney. It fails to accurately resolve complex technical
issue such as science, technology or tax or accounting regulations. Too
much insistence on procedure may lead to unnecessary delay and that is
the reason justice delayed results into justice denied. When we discuss
about the role of victim then we found that, victim act as a mere witness
as he don’t have any place under the entire procedure of criminal justicve
system.
In the adversarial criminal justice system owing to the
conceptualization of crime as an offence against the state, the criminal
justice system is traditionally viewed as a system to facilitate a conflict
between the state and the accused.3 The victim is thereby inherently
excluded.
5. 3 Inquisitorial Criminal Justice System
The inquisitorial model basically relates to Romano Germanic
System of Law, which is also known as civil law system or continental
law system. It aims to attain justice with the composite effort of the
prosecutor, the police, the defense lawyer and the court. The court can
play active role in procuring evidence, in the investigation of the case and
the examination of the witness.4
In this system power to investigate rests primarily with the judicial
police officers (Police/Judiciare). They investigate and draw the
documents on the basis of their investigation. The judicial police officer
has to notify in writing of every offence which he has taken notice of and
submit the dossier prepared after investigation to the concerned
prosecutor. If the prosecutor finds that no case is made out he can close
the case. If however he feels that further investigation is called for, he can
instruct the judicial police to undertake further investigation.
3
Ibid.p.35.
4
Prof.Madhav Prasad Acharya, The Adversarial v. Inquisitorial Models of Justice, Kathmandu School
of Law Journal,(vol.1), 2014,p.44.

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The judicial police are required to gather evidence for and against
the accused in a neutral and objective manner as it is their duty to assist
the investigation and prosecution in discovering truth. The main feature
of this system is that, the exclusionary rules of evidence hardly exist and
at the same time hearsay evidence (rules) is unknown.
The main feature of this system is that the accused is presumed to
be innocent and it is the responsibility of the judge to discover the
truth.The statements of witnesses recorded during investigation are
admissible and form the basis for the prosecution case during final trial.
The important thing is that before the trial, the judge, the accused
and the victim are entitled to participate in the hearing. However the role
of the parties is restricted to suggesting the questions that may be put to
the witnesses. It is the judge who puts the questions to the witnesses and
there is no cross-examination as such.
The evidence regarding character and antecedents of the accused
such as previous convictions or conduct are relevant for proving the guilt
or innocence of accused.When we discuss about the main advantage of
this system then we can not ignore one thing that to prove the case, the
standrad of proof required is the inner satisfaction or conviction of the
judge and not proof beyond reasonable doubt as in the adversarial system.
Victim plays an important role at every stage of the case.
The disadvantage of inquisitorial system is that there is lack of
chances of fair trial and another thing is that participation of the court in
the investigation of the case may lead to biased attitude while deciding
the case. Right to privacy of the accused is denied and the accused is
exposed to express everything which he need not express keeping in view
of merit of case.
The inquisitorial system followed specially in civil law countries
like France, Germany, Newzealand, Italy and Austria and the countries

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like United Kingdom, United State of America, India and other common
law countries followed the adversarial criminal justice system. In India
there is contrary views about the model, the various High Courts of India
expressed their views about the present criminal justice system. The High
Courts of Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana
have said that the present system is satisfactory. The High Courts of
Jarkhand and Uttaranchal have opined that the Adversarial System has
failed. The High Courts of Bombay, Chattisgarh, Delhi, Himachal
Pradesh, Kolkata, Madras, Madhya Pradesh and Orissa have expressed
that the present system is not satisfactory. Some of them say that there is
scope for improving the Adversarial System by adopting some of the
useful features of the Inquisitorial System.5
The majority of High Courts give stress on to make some changes
in the existing criminal justice system. The former President of India,
Dr. R. Venkataraman also made observation about present system:
“The Adversarial System is the opposite of our ancient ethos. In
the panchayat justice, they were seeking the truth, while in adversarial
procedure, the Judge does not seek the truth, but only decides whether the
charge has been proved by the prosecution. The Judge is not concerned
with the truth; he is only concerned with the proof. Those who know that
the acquitted accused was in fact the offender, lose faith in the system”.
The judge should play active role to find out the truth, he concerns
only about the proof as the evidences which lead before him on that basis
he decides the case. The judge doesn’t have any role in the matter of
investigation though he acted neutrally to decide the case. The Supreme
Court has criticized the passive role played by the judges and emphasized

5
See Justice Mallimath Committee Report on Reforms of Criminal Justice System, vol.1 (2003), p.27.

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the importance of finding truth in several cases. It is the duty of a court
not only to do justice but also to ensure that justice is being done.
The researcher in nutshell tries to discuss the features of adversarial
and inquisitorial criminal justice system. In India there is voice on the
part of jurist, law Comission and even some of the High Courts to include
some of the principles of inquisitorial model. To study these features are
essential one as the researcher inteds to explore and analyse the role of
the victim during criminal proceedings by way of comparing these two
systems. To study the status and position of victim under criminal
proceeding it is essential to analyse the interaction of the victims with the
constituent elements of the criminal justice system i.e. the police, lawyers
and courts and the role played by him at each stage of the criminal
process. Ultimately the researcher intends to suggest remedial measures
to enhance the role of victims during criminal proceedings and sensitise
the criminal justice system to the needs and expectations of the victims.
Victims of crime are important players in criminal justice
administration both as complainant/informant and as witness for the
police/prosecution. Despite the system being heavily dependent on the
victim, criminal justice has been concerned with the offender and his
interests almost subordinating or disregarding the interests of victim. In
the civil law systems generally, the victims enjoyed a better status in
administration of criminal justice. Towards the last quarter of the
twentieth century, the common law world realized the adverse
consequences arising from this inequitable situation and enacted laws
giving rights of participation and compensation to the victims.
The criminal justice system in India is excessively loaded in favour
of the accused.The main principle on which the system of legal
jurisprudence is based is to let ninety nine persons get away free than to

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have even one innocent man punished. This tenet, while preventing
injustice to one innocent, denies justice to ninety nine victims of crime.
The victims experiences with the professionals operating the system,
police, prosecution and court are not good that results into the formation
of definite attitudes on the part of the victim towards all of them. If
victims come to regard their treatment as too stressful, demeaning, unfair,
distorting of reality, too remote or too little concerned with their own
rights, feelings and interests or if decisions are made which are felt to be
unsatisfactory, it is possible that their faith shold be reduced and
ultimately lead to disenchantment, disinterest and future non- cooperation
by the victim.
The researcher tries to discuss the role of victim and his/her iteraction
with the different professional during the proceeding specially with
police, prosecution and the court. In the last chapter the researcher
discusses in detail the various provisions to give justice to victims of
crime. In this chapter the researcher intends to highlight the actual
problems which the victim face when he interacts with different agencies
involved in the criminal proceeding and ultimately which results into the
violation of human rights of victims.

5. 5 The Victim and the Police


The victims first contact with the criminal justice system is with the
police. When a person who has been the victim of a cognizable offence
gives information to the police regarding the same, the police is required
to reduce the information into writing and read it over to the informant.
The informant is required to sign it and get a copy of the FIR.6 If the
police refuse to record the information, the victim – informant is allowed
to send it in writing and by post to the Superintendent of Polcie
6
See Sect. 154 (1) & (2) of CrPC.

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concerned. However the provision mandates that the same needs to be
done by post. This creates a problem because of the time that this process
takes. Assuming that both the postal department and the Superintendent
of Police are efficient, a delay of forty-eight hours can reasonably occur.
This gives ample time to the accused to tamper with the evidence, and the
first information report under Section 154 of the CrPC would then
become fruitless. If the police refuse to investigate the case for whatever
reason, the police officer is required to notify the informant of that fact.7
Alternatively, victims are enabled by Section 190 of the CrPC to avoid
going to the Police Station for redress and directly approach the
Magistrate with his complaint. This is termed as a ‘private complaint’ and
the Magistrate is empowered to order investigation, under his or her
supervision.
This is a formal process and would require the victim to engage a
lawyer inorder to satisfy the formal requirements stipulated by the law. In
the context of filing the first information report the Indian law apears to
put the onus completely on the victim. If the case is a non-cognisable
one, the police are required to refer the informant to the Magistrate.
Hence; there arises a scope for misuse by the police, which have been
empirically recorded in India. The Malimath Committee Report records
the fact that informants are treated indifferently by the police and
sometimes threatened when they go to them with their grievances. The
facts are distorted in order to make cognizable cases non-cognizable.8
Here the researcher likes to give reference of French criminal justice
system that followed the inqusitorial model of criminal justice system.
Under the French criminal law if the police do not have jurisdiction to
investigate the offence reported, they are required to take the statement of
7
Sect.157 (2) of CrPC.
8
Malimath V.S. (2003), Report of the Committee on Reforms of the Criminal Justice System. Delhi:
Ministry of Home Affairs, Government of India.

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the victim and pass the statement to the competent authorities.
Incorporating this approach into the Indian criminal law would be
beneficial for two reasons. First, the police will become the single point
for the victim/informant to approach, which will address the problems
that the present is said to have. Second, the time of a Magistrate may be
better utilized, since instead of personally recording the statement of the
victim/informant, the Magistrate will have to peruse the recorded
statement and take a decision whether the case ought to be investigated or
not.
Another alternative, which is suggested by the Malimath
Committee Report, is that the distinction between cognizable and non-
cognizable offences in relation to the power of the police to investigate
offences should be removed, and it should be made obligatory on the
police to entertain complaints regarding commission of all offences and
to investigate them.9 I think this is not desirable as the rationale in making
this distinction is to keep the police out in certain situations. For instance,
all offences against the institution of marriage are non-cognizable
offences. The legislature seems to have intended that the Magistrate apply
his or her mind before permitting the police to investigate such a
complaint. Removing the distinction would nullify this objective. Hence,
the French system seems to be more practical and desirable.
The researcher discusses the problem of victim from the procedural
point of sense when they interact with police, but in generally also the
victims face several problems when they approach to police station to
register the case. Generally the victims are unwilling to report the cases to
police. They are not happy about the attitude of police men. The most
common problem suffered by many of the victims while reporting an
offence is the absence of receptive and sympathetic attitude from police
9
Ibid.

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towards the victims.10 Sometime, in addition to the unhelpful attitude, the
harassment of victim of crime by the police is not an uncommon feature.
In reality, the victims need cooperation and moral support from the
police and it is also not possible for police to trace the crime without the
help of victims. But in reality, the police do not necessarily value the
victim as an important part of criminal justice system and they do not
necessarily see their role as offering emotional support to victims.
When we discusses the relation between police and victim and how
the victims face several problems while interacting with police in India
we found that this problem is not restricted to India but worldwide the
victims of crime, more or less face the similar problems. In foreign
countries problems of crime victims vis-à-vis the police have received
more attention than India. The Declaration of Basic Principles of Justice
and Abuse of Power11 suggested several measures to improve police
response towards crime victims. The Declaration calls upon the member
States to treat the crime victims with compassion and respect for their
dignity. According to the Declaration, victims have certain rights which
must be protected to ensure that they get a fair deal in the criminal justice
process. The administrative process must respond sensitively to the needs
of victims by informing them about the progress of investigation in their
cases and by minimizing their inconveniences, providing protection and
security to their families against any intimidation and retaliation. The
Declaration further recommends that the police along with other relevant
agencies of the criminal justice system should receive training to get
sensitized to the needs of the victims.

10
Bharat B.Das, Victims in the Criminal Justice System, APH Publishing, New Delhi (1997), p.123.
11
U. N. Doc GA Res. 40/34 (1985).

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The International Association of Chiefs of Police (IACP),12 in its
policy declaration, expects police leaders to ensure that victims are
treated as “privileged clients” and also urges police force to “establish
procedures and train personnel” to implement the “incontrovertible rights
of all crime victims”. They are as under:

1. To be free from intimidation;


2. To be informed about the availability of financial assistance and
social services and how to procure them;
3. To be provided a secure area during interviews and court
proceedings;
4. To get back stolen or other personal property when no longer needed
as evidence;
5. To speedy disposition of the case, and to be periodically informed of
case status and final disposition, and also about the release of
perpetrator from custody;
6. To be interviewed by female official in case of rape and other sexual
offences, where ever personnel and resource capabilities allow.

The Council of Europe for Improvement of Victim Protection has


been equally emphatic in highlighting the plight and problems of victims
of crime. In 1981, the Council set up a Select Committee of Experts on
the Victim and Criminal and Social Policy. Apart from programs of
victim-assistance, some guidelines relating to police response to the
victims of crime framed by the Committee were approved by the Council
of Europe in 1985.Some of these are as under:

12
The International Association of Chiefs of Police (IACP) was founded in Chicago in 1893 as the
National Chiefs of Police Union.

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i) The victim should be treated in the police station in a sensitive
manner, so that he is not subjected to any additional emotional
damage.
ii) The victim should be apprised of the possibilities of receiving
financial, medical and psychological help from different
sources.
iii) He should also be advised about the restitutional claims and
compensation from the state.
iv) The right of victim should be protected and he should not be
subjected to secondary victimization i.e. additional damage
during the process of criminal justice.
v) Suitable measures to protect the victim and his family against
any possible threat from the offender should be taken.
vi) Informal procedures aiming at settlement of disputes between
victim and offender, without resorting to criminal justice
procedure, should be encouraged.

The Government in some countries has already enacted legislation


to protect the rights of victims of crime. For instance, in the USA, 44
States and the federal Government have legislated guidelines as to how
police and other officials in the criminal justice system should treat
victims of crime.13 These acts lay down that the police are responsible for
providing information to victims about the availability of emergency,
medical, compensation and other social services, returning property to
victims promptly, and informing the victims about the release of
defendants.
Police officers are trained to deal with the varying needs of the
victims of sexual assault, domestic violence and child abuse sensitivity.
13
See Victim Witness Protection Act, 1988.

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In Canada, the Royal Canadian Mounted Police and the Metropolitan
Police forces in Montreal and Toronto require the police personal to
respond to the cases of domestic violence and sexual assault in a sensitive
manner.
In India to deal with the cases of juvenile the special juvenile police
unit14 is set up as the juvenile needs a special treatment but unfortunately
due to lack of implementation of the provision the purpose is not going to
be served. To deal with the cases of sexual offences, the special
machinery is essential one. At the stage of filling of the case the police
have to give every kind of support including emotional support to victims
of sexual offence.
The process of criminal justice is set into motion when the victim
reports the incident to the police. The victim then becomes an important
source of information for the police to arrest the culprit and to conduct
investigation. The need to establish a healthy police-victim relationship is
essential not only to reduce the reluctance of the victims to report crime
to the police but also to improve the quality of investigation.
On the other hand it is equally true that, the police in India is
overburdened, often operates in high risk situations, lack of adequate
remuneration and appropriate training. Proposals and reports on police
reform have not borne fruitful until now. The proposals to strengthen the
material and human resources in the police, to have a more sustained
training policy must therefore be welcome as a real improvement for the
police system in India. Equally, the creation of an investigation and a law
and order wing could lead to more efficiency within the criminal justice
system, through the higher specialization and qualification of
investigation officers.

14
See Sect. 63 of Juvenile Justice Act, 2000.

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5. 6 The Process of Investigation and the Victim
The process of investigation is the part of proceeding to punish the
wrongdoer. To collect the evidence, to find out the truth, the investigation
is essential one to put all the matter before the court. In some cases the
special investigation officer is appointed by the competent court to
investigate the matter.
When we discuss the role of victim in the process of investigation,
the Code does not seem to give any role to the victim during
investigation. The statement of the victim, if he or she also happens to be
the informant, is recorded in the form of first information report. If the
victim is not the informant, then the victim will be independently
questioned by the police.
The term ‘investigation’15 is defined to include all the proceedings
which are essential for collection of the evidence, conducted by a police
officer or by any person authorized to do so by a magistrate. As soon as
the investigation is completed, the investigation officer has to forward a
report in the form prescribed in the Code to the magistrate. Hence,
investigation begins with the filing of the first information report and
ends with the submission of final report which is also known as ‘charge
sheet’.
If we carefully observe the definition of ‘investigation’ it is clear
that there is no reason why the police cannot involve the victim in the
process of investigation. In fact, assistance of the victim might help the
police to proceed the investigation in a proper way or direction. However,
practice reveals that once the statement of the victim is recorded, the case
is completely within the control of the police and they do not involve the
victim in the investigation process at all. The Malimath Committee report
suggests that the victim should play an active part in during investigation.
15
See Sec.2 (h) of CrPC.

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The objective of criminal justice system, according to the committee is to
find out the truth. Hence the victims involvement becomes very
important. The victim can assist the investigation in finding the offender
and in collecting the evidence to prove the commission of the offence by
the criminal. The committee also suggests that the victim should be
allowed to offer suggestions with respect to the investigation and should
be given the power to move the court for appropriate directions to ensure
proper investigation of the case. This is similar to French criminal justice
system, wherein, during the pre-trial inquiry the victim enjoys the same
rights of participation as the suspect. He or she may request the judge
d’instruction to carry out particular investigation and through his or her
lawyer, access to the case dossier is provided.
Section 157 of CrPC deals with the procedure for investigation. It
states that if it appears to the police officer that there is no sufficient
ground for entering an investigation, he or she shall not investigate the
case. However, if such a decision is taken, the officer is required to notify
the informant the fact the case will not be investigated. This seems to
have been provided to allow the informant to exercise the other options
available in the CrPC to set the criminal justice system into motion.
The next important section in the CrPC is Section 167, which states
that a person can be kept in custody for a period of ninety days, where the
investigation relates to an offence punishable with death, imprisonment
for life or ten years; and sixty days in all other cases. If the police do not
complete their investigation within the said period, the accused is entitled
to be released on bail, subject to satisfying the conditions prescribed. This
is another place where the victim can intervene and demand an
explanation from the police as to why the investigation has not been
completed on time. It would be desirable to incorporate a provision
mandating the police keep the victim informed of the progress of the

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investigation. If the victim can contribute in expediting the process, his or
her assistance should be taken.
Section 173 of the CrPC is a place where the informant is expressly
mentioned. Subsection 2 (ii) states that, at the time of filing the charge
sheet with the magistrate, the police officer shall also communicate the
action taken by him to the person who first gave the information relating
to the commission of the offence. Hence, the CrPC clearly involves the
informant in the investigative process in two situations – the first under
Section 170 under which a preliminary report is submitted to the
magistrate by the police, if they believe that an offence has been
committed and the second under Section 173 (2) (ii).
Once the charge sheet is filed, the magistrate may take cognizance of
the offence. In the event of the magistrate deciding not to take cognizance
of the matter, the CrPC is silent as to whether, as in Section 173 (2) (ii),
the informant should be notified or whether the informant has the right to
be heard. Taking note of this situation the Supreme Court clear this
ambiguity by way of their decision but the researcher will discuss the
case law in next chapter.
The investigation agencies have been given wide and unbridled
powers in investigation but the experience shows that a criminal case
mostly fail due to delay and latches in investigation. In number of cases
accused persons were acquitted due to faulty investigation. Hon'ble
Courts in various rulings has observed about such lapses in investigation
which was proved to be fatal in criminal trial. If the prosecution fails due
to faulty investigation, the crime victim never gets justice. If the police
have been given such a wide and unfettered discretion in investigation,
why not there be a clear provision fixing liability on state to compensate
the crime victim if the prosecution fails due to latches in investigation.

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Moreover, liberty should be given to state to reimburse itself by realizing
the amount of compensation from the erring Investigation Officer.
Another problem in investigation is lack of forensic laboratories and
modern equipments which create a major hurdle to trace the offender.
The report does not come in time and that creates delay in deciding the
matter. The investigating officers are not trained to tackle the offences
committed by using computer and other electronic devices. The things
which are seized during investigation are not kept properly and handled
properly. This is a time to give proper training to police officers and
increase forensic laboratories and modern equipments to trace such
offences to protect the rights of victim.
In this modern era, the nature of offence is going to be changed, so
the investigation authorities should upgrade the knowledge and try to
become more technosavy to trace the offender and give justice to victims
of crime and at the same time victims should be more careful to protect
ourselves.
Thus the victim is vital to the police throughout the recording,
detection and investigation of the case to the police. Yet the police do not
seen to be concerned to fulfill the victim’s need to be informed,
occasionally consulted and treated with dignity and respect. The victim
does seem to be seen as a very important participant in the criminal
justice system. We have two contradictory facts on the role of the victim
i.e. his practical importance and, in contrast, in apparent ignorance of and
an ignoring of his attitudes and his experience by those involved in
recording and investigating offences … the police.16

16
Bharat B. Das, Victims in the Criminal Justice System, APH Publishing, New Delhi (1997), p. 126.

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5. 7 The role and participation of the Victim in the process of Trial
The researcher already discussed the role of victim in the process of
investigation and tries to analyse the scope of victim in the process of
investigation with the help of relevant provisions under code of criminal
procedure. Here the researcher tries to throw some light on the process of
trial and whether the victim has any voice under the entire process of
trial. The debate in the context of participation of the victim in the trial
revolves around the issue of when and to what extent should the victim be
allowed to participate. In this part of the chapter, the researcher shall
examine the Criminal Procedure Code and the extent to which victims
are permitted to have a voice in the prosecution of crimes against them.
The term ‘participation’, in the context of victims, has been defined
to include ‘being in control, having a say, being listened to or being
treated with dignity and respect’17. But when we talk about the nature of
criminal justice system we found that in most of jurisdictions, crime is
considered to be an offence against society. It is also considered that
criminal liability imports stronger moral culpability than other forms of
legal liability. Hence crimes are distinguished from other unlawful acts,
by virtue of their public character18. This implies that the society is the
victim of such a crime and it is the duty of the society to restore the
balance disturbed by the commission of the crime. Hence, the State, and
not the actual victims, has the responsibility to prosecute offenders.
The Indian system classifies trials into those that are conducted by a
‘Court of Session’ and those that are conducted are by a ‘Magistrate’s
Court’. A Court of Session cannot directly take cognizance of any offence
exclusively triable by such court according to the First Schedule. A

17
Doak Jonathan, ‘Victims Rights in Criminal Trials: Prospects for Participation’, Journal of Law and
Society, (2005), Vol.32, p.295.
18
Edwards I., ‘The Place of Victims Preferences in the Sentencing of their Offenders’, Criminal Law
Review, (2002), p.699.

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competent Magistrate may take cognizance of such an offence and
commit the case to the Court of Session for trial.19 Even in respect of
other offences a Magistrate may commit a case to the Court of Session
under the circumstances mentioned in Sections 322 to 324 of CrPC. All
such cases shall be tried by the Court of Session according to the
procedure laid down in Sections 226 to 236 of CrPC.
The Public Prosecutor is appointed by the government for conducting
prosecutions, appeals or any other proceedings on behalf of the
government.20 The Code does not specifically mention about the spirit in
which the duties of the prosecutor are to be discharged. It does not speak
of the attitude, the prosecutor should adopt while conducting the
prosecution. The objective of a criminal trial is to find out the truth and to
determine the guilt or innocence of the accused.
The duty of the prosecutor in such a trial is not merely to secure
conviction at all costs but to place before the court whatever evidence is
possessed by the prosecutor, whether it be in favour of or against the
accused, and to leave the court to decide upon all such evidence whether
the accused was or was not guilty of the offence alleged.21 It is no part of
the prosecutor’s duty to obtain convictions by hook or by crook. The
prosecutor plays a very important role in the administration of justice.
A public prosecutor should be personally indifferent to the result of
the case. His duty should consist only in placing all the available
evidence irrespective of the fact whether it goes against the accused or
helps him, before the court, in order to aid the court in discovering the
truth. It would thus be seen that in the machinery of justice a Public
Prosecutor has to play a very responsible; the impartiality of his conduct
is as vital as the impartiality of the court itself.
19
See Section 209 of CrPC.
20
See Section 24 of CrPC.
21
Ghirrao v. Emperor, (1933)34 CrLJ 1009, Ram Ranjay Roy v. Emperor, ILR (1915) 42 Cal 422

211
The Public Prosecutors who conduct prosecutions on behalf of the
State have their own rules of conduct whose function is to place the
whole incident in a proper perspective to facilitate an objective decision.
The role of the prosecutor has already come in for considerable critical
comment on the ground that they are more inclined to be committed to
the idea of successful prosecution and conviction of the offender than to a
just and dispassionate presentation of the facts. This approach may satisfy
the higher principles of justice, but leaves the victim cold.22
The public prosecutor, in charge of a case may appear and plead
without any written authority, before any court in which the case is under
inquiry, trial or enquiry.23 More importantly, Sub-section (2) of the same
section makes a provision for the appointment of a pleader by a private
person. The powers of the pleader are restricted since the section states
that the prosecution will be carried out by the Public Prosecutor, and
pleader shall act under the directions of the Prosecutor. The pleader is
however allowed to submit written arguments to the court, if it so
permits, after the evidence is closed. Section 302 of CrPC goes a step
further. It states that any magistrate inquiring into or trying a case may
permit the prosecution to be conducted by any person, other than a police
officer below the rank of Inspector and who is not the part of
investigation. This thus empowers the victim to argue the case himself or
herself or through his or her pleader. The only limitation to this right is
provided in Section 225 of the CrPC. This Section states that in every
trial before the Court of Session, the prosecution shall be conducted by a
Public Prosecutor. Hence in a trial before the Court of Session, the victim
only exercise his or her rights to appoint a pleader, as provided by Section
301(2) of the CrPC.

22
S. Venugopal Rao, Victims of Crime, Allied Publishers Limited, New Delhi, (1989), p.22.
23
See Section 301 of CrPC.

212
When we try to analyse the view of competent court on this issue we
found the different views as in Thakur Ram v. State of Bihar24, the
Supreme Court of India ruled that in a case which has proceeded on the
basis of a charge sheet, a private party has no locus standi. It further ruled
that barring a few exceptions, in criminal matters the aggrieved party is
the State, which is the custodian of the social interests of the community
at large, and hence it is the duty of the State to take all steps necessary for
bringing the person who has acted against the social interests of the
community to book.
In Kuldip Singh v. State of Haryana25, the High Court of the
provinces of Punjab and Haryana ruled that the court has no role to play
as regards the victim hiring his or her own pleader, since the pleader’s
role is confined to briefing the Public Prosecutor. The court further ruled
that it comes into picture only if the counsel so appointed, seeks to submit
written arguments.
In All India Democratic Women’s Association v. State26, the High
Court of Madras ruled that Section 301 (2) of the CrPC gives a third
party only a right to assist the prosecution. The court held that the
prosecution of criminal proceedings is the primary responsibility of the
State and if third parties are permitted to intervene, then there will be a
number of associations to represent one party or the other in criminal
proceedings, and this would give rise to confusion and chaos.
The researcher will discuss the role of judiciary on this point in detail
in next chapter while analyzing the role of judiciary to protect the rights
of victim.
The next issue that needs to be examined, in the context of
participation of the victim in the trial, is whether the opinion of the victim
24
AIR 1966 SC 911
25
1980 CriLJ 1159
26
1998 CrLJ 2629

213
should be taken at the time of sentencing. In this context, it is relevant to
examine the victim personal statement (VPS) scheme set up in the United
Kingdom, under the Victim’s Charter.27 The VPS is intended to give
importance to the views of the victim with regards to prosecuting and
punishing offenders. The VPS is a statement written in the victim’s own
words. It gives victims of crime an opportunity to tell criminal justice
agencies and the courts about how a crime has affected their lives. It also
helps criminal justice agencies to understand fully the impact that the
crime has had on the victim so that they can make decisions about the
case. The VPS is optional. No pressure should be put on victims to make
one if they don’t want to. However, it is important that the victim
understands the benefits of making one.

The VPS can explain the impact of the crime on the life of victim or
the relative of victim which include any physical, emotional or
psychological injury they have suffered or any treatment they may have
received as a result of the crime. At the same time it is equally important
one that once the VPS is signed, it cannot be altered or withdrawn. The
VPS may be reported on in the media and it is possible that on rare
occasions victims may be cross-examined by the defence on the content
of their VPS. The most important thing is that the VPS should not contain
the opinion of the victim on what the sentence should be as this is for the
Magistrate or judge to decide.28
The American criminal justice system also have such practice which
is more or less equal to U. K. system, where the court allowed to the
victim to put his or her submission in the form of Victim impact
statements at the time of sentencing. Victim Impact Statements (“VISs”)
are statements read by, or on behalf of, victims of crime at the sentencing

27
United Kingdom Home Office , Victim’s Charter, (1996), London: HMSO
28
See www. Victimsupport.co.uk accessed on 15-04-2015 at 11:10 a.m.

214
phase of criminal proceedings. After the defendant has been found guilty
by the judge or jury, the victim is afforded the opportunity to make a
statement to the court regarding the impact of the crime on the victim and
her family. Typically these statements are offered by the victim to
encourage the maximization or enhancement of the penalty upon the
defendant. The statements are often filled with emotion, and the
defendant is not able to rebut the statements.29
The traditional view has been that victims are to have no role as
decision-makers or consultees in the sentencing process. The only extent
to which they may be allowed to participate is as information providers.
Conflicts are taken out of the hands of the victims to ensure impartial
justice and rationality. Hence it has been opined that the general principle
is that no weight should be given to victim’s opinions. This is based on
the rational that given the public nature of criminal offences, the
objectivity and rationality of the sentencing process has to be maintained.
On the contrary the accused has right to put his or her submission
before the court at the time of sentencing. The Code confers such right to
the accused in the form of pre-sentence hearing30. But the same right is
not conferred to victim or relative of victim to express their opinion on
sentence given to accused person.
Another provision of the CrPC that is worth examining in this
context is calling for records to exercise powers of revision.31 The Code
empowers a High Court or a Session Court to call for records of any
proceedings before an inferior criminal court to satisfy itself as regards
the legality, propriety or correctness of an order, sentence or finding of a
lower court. From the nature of the powers given to the revisional courts,
it seems to follow that the revisional court can act either on its own
29
See http: // Scholarship.law.berkeley.edu/bjcl/vol.2/iss1/3 accessed on 18-04 2015 at 04:32 p.m.
30
See Section 235(2) of CrPC.
31
See Section 397 of CrPC.

215
motion or on the motion of even a stranger who may be instrumental in
bringing to the knowledge of the revisional court a matter which
otherwise the revisional court may not have known.
The revisional court can interfere on information contained in the
newspaper or a placard on a wall or on an anonymous postcard, provided
it considers that the sufficient grounds have been established to justify its
doing so. At the same time the revisional court has to be loath to take
action on an application for revision presented by a third party on its own
responsibility and without authority from either of the parties. It becomes
the duty of the revisional court to see that a stranger to the proceedings
does not employ his information as an instrument of vengeance on the
accused or attempt to serve his own private end.32 The question whether a
stranger has a right to appeal in a proceedings initiated suo motu by the
court has been answered in the negative. However, the Supreme Court
ruled that the stranger’s revision petition would be maintainable.33
From the above discussion it is clear that, the victim has the right to
approach the court in ‘revision’ and point out an error in the inferior
court. There appears to be no rational in allowing the victim to intervene
at a later stage but not at the initial stages.34
The Malimath Committee Report has suggested quite a few changes
to the Criminal Procedure Code to give the victim a prominent role. It
suggests that the French system, wherein the victim becomes a party to
the proceedings at the stage of investigation itself, be incorporated in the
Indian law. It further suggests that the active participation of the victim in
the trial will be of great help in the search for truth, without
inconveniencing the prosecution. It suggests that the victim be permitted

32
Purshottam Vijay v. State, 1982 Cri LJ 243; see also, Shailabala Devi v. Emperor, (1933) 34 Cr LJ
1115; Pratap v. State of U.P., (1973)3 SCC 690.
33
K. Sudhakaran v. State of Kerala, (2009)4 SCC 168.
34
Satish M. and Chandra C., ‘Third Party Intervention in Criminal Litigation’, Supreme Court Cases
Journal (2005) Vol.2, p. 75-80.

216
to suggest questions that the court may put to witnesses; that the victim
be allowed to conduct the trial if the Public Prosecutor does not exercise
due diligence; that the victim be allowed to supplement the evidence
adduced by the prosecution and put forth his or her own arguments. The
committee also suggests that the right of the victim should extend to
prefer an appeal against any adverse order passed by the trial court. It
further suggests that, as in the case of the accused, the victim should also
be provided with a lawyer if he or she is indigent.

5. 8 Compounding of Offences and withdrawal from prosecution


Another area where the role of the victim comes into prominence is
in situations where the Criminal Procedure Code permits a premature end
to the trial. Section 320 of the CrPC deals with compounding of offences,
wherein the victim is allowed to withdraw the case filed by him or her.
This is allowed only with respect to certain offences, enumerated in the
said section.
Under certain circumstances it may be advisable to allow the
compounding of offences and to drop the criminal proceedings if there is
a settlement between the accused person and the victim of the crime.
Sometimes, the Public Prosecutor or the complainant may consider it
expedient to withdraw from the prosecution; and the court may allow
such withdrawal and put an end to criminal proceedings. Under certain
circumstances, the Magistrate himself may consider it desirable to stop
the proceedings, and the Code, subject to certain safeguards, allow it to
be done.
A crime is essentially a wrong against the society and the State.
Therefore any compromise between the accused person and the
individual victim of the crime should not absolve the accused from
criminal responsibility. However, where the offences are essentially of a

217
private nature and relatively not quite serious, the Code considers it
expedient to recognize some of them as compoundable offences and some
others as compoundable only with the permission of the court. The
compoundable offences are mostly non-cognizable offences are not
compoundable. Then again, the offences which are compoundable only
with the permission of the court are mostly cognizable offences, though
all cognizable offences are not so compoundable.
On the other hand, deals with the situations where the State can
withdraw from prosecuting the offender.35 The section implicitly makes
room for such considerations by enabling the Public Prosecutor to
withdraw from the prosecution of any person with the consent of the
court. The withdrawal from prosecution under the section may be
justified on broader considerations of public peace, larger considerations
of public justice and even deeper considerations of promotion of long-
lasting security in a locality, of order in a disorderly situation or harmony
in a faction milieu, or for halting a false and vexatious prosecution.36
The section provides for “the withdrawal from the prosecution” and
not “the withdrawal of the prosecution”. Withdrawal from a prosecution
means retiring or stepping back or retracting from the prosecution, in
other words, withdrawal of appearance from the prosecution or refraining
from conducting or proceeding with the prosecution. However, when the
court consents to such withdrawal from the prosecution, the accused
person shall be discharged or acquitted in accordance with the provisions
of clauses (a) and (b) of Section 321.37
The usage of this provision has been quite controversial as Section
321 does not mention whether a complainant or any other person can
oppose the application of the Public Prosecutor seeking permission to
35
See Section 321 of CrPC.
36
Subhash Chander v. State (Chandigarh Admn.), (1980) 2 SCC 155.
37
Public Prosecutor v. Mandangi Varjuno, 1976 Cr LJ 46 (AP).

218
withdraw from the prosecution. The Supreme Court has laid down the
guidelines that the State needs to follow when withdrawing from
prosecution. The issue that arises is whether the victim has a right to
oppose such withdrawal by the State. The Supreme Court gives answer to
this issue was in the case of Abdul Karim v.State of Karnataka.38 In this
case, the State sought to withdraw serious charges under the Terrorist and
Disruptive Activities (Prevention) Act, giving in to the demands of a
brigand who had kidnapped a popular movie star. The father of one of the
policeman killed by the brigand approached the Supreme Court, seeking
its intervention in this case. The State did not challenge the locus standi
of the petitioner and hence the court ruled on the merits of the case and
laid down guidance in that regard.
The Andhra Pradesh High Court in M. Balakrishna Reddy v. Home
Dept.39, has held that a third party who has suffered as a result of the
offence shall have the right to prosecute if the State withdraws the
prosecution. Thus the court implicitly recognized the right of the victim
to oppose applications filed by the State for withdrawal from prosecution.
The researcher discusses how the victim face various hurdles under
criminal justice system by elaborating the different provisions of Code of
Criminal Procedure as the Code confers various rights to victims of
crime but these provisions are inadequate to meet the ends of justice. The
researcher discuss the specific or technical problems, the victim may face
during the course of proceeding. Apart from this in general sense also the
victim may face various problems.
The length of time that needs to complete the trial varies from case to
case. If a case in which the plea is not guilty, the delay is for years
together. The proceeding is lengthy; it takes time for every activity as to

38
AIR 2001 SC 116.
39
1999 Cr LJ 3566 (AP)

219
record the evidence, to lead the witnesses, frequent adjournments the
victim has to wait for a long time. The victims may feel humiliated and
they disappointed regarding the trial of a case.
The victims generally have little idea of the progress of the case
through the various pre-trial appearances. Victims are usually almost
completely uninformed about the progress of their case prior to the trial.
The only information they may receive from official sources is in the
form of summons, but the summons is itself found to be uninformative as
it doesn’t contain any details of case, it states only about the presence of
the victim on particular date. Apart from this there is no any process to
give information to victim about the progress of case; this is serious
lacuna in the system that the victim is completely unknown about the
proceeding.
It is not that victims are apathetic about the progress of their case;
they are very much interested to know about the case or stage of case.
Some of them try to attend the court proceeding to find out what is
happening through official or unofficial sources. Most of them
experienced that either the police or courts are too busy to be bothered by
them or that it is not their place to find out, it is up to the system to
inform them. The victims don’t know which prosecution lawyer is going
to argue before court to give justice to them. There is lack of
communication gap between the prosecution lawyer and the victim or
relatives of victim.
The victims who attend the court for various reasons as it is not
restricted the role of victim to answering the questions in witness box or
listening to what is being said. There are the contracts they may have with
the police and the courts when being summoned to come to court. There
are different of experiences to wait outside the court room and the contact
they may have there with police officers, prosecution lawyers or counsel

220
or with the wrongdoer or offender. Even after giving evidence, there is
the problem of obtaining witness expenses and the main question is that
whether these expenses are sufficient to meet the costs of victims in
attending court. It is the duty of the State to care of these expenses by
taking review time to time so as to fulfill the needs of victim.
In court the prosecuting lawyer argue before the court and police
assist them in prosecuting the case. Victims who did attend the court for
to give witness or just to watch the proceeding out of their own interest
find that prosecutor and police officers did not act or support up to their
expectations. In general the impression creates that, the victim being
isolated and confused at court, not knowing what they may be required to
do or what they are allowed to do. They do not realize what it happening
around them and it is rare for anyone to explain it to them. Police officers,
when they were present did seem to make some efforts to take of victims
and try to boost their confidence.
In a study performed by Kelly40, found that rape victims felt they
were denied participation in and information about what they saw as
‘their’ case. Some of them also felt that the prosecutor not taking care of
to protect their interest. In such cases the victims of sexual offences need
different kind of treatment as emotional and mental support. The Indian
judiciary by way of their decisions gives directions to protect the interest
of victims of sexual offences.
There is considerable inconvenience involved for victims who
attend court which will definitely have a negative effect on potential
victims going to the court, even when they suffer due to crime. The most
important problems of victim during the trial is that there is no any
facility in the premises of court to fulfill their basic needs. Even the basic

40
D.P.Kelly, “Victims reaction to criminal justice response”, paper delivered at 1982 Annual Meeting
of the Law Society Association, Toronto, Dt. 06-06-1982.

221
amenities like shelter, seating, drinking water, toilets etc. are not
provided. A victim or a witness who has a single experience of attending
court for giving evidence would never again in his life time to be put in
that situation. This may include travel costs, loss of earnings, and
difficulty in finding replacement staff at work or finding someone to look
after children. The total financial burden sustained by victim is much
more in comparison to which they may get back from Government. The
amount which they may get from State is so meager, not sufficient to
meet their expenses. The Law Commissions in their reports suggested
that these expenses should be enhanced to encourage the victim and
witnesses to appear before the court.
There are also a number of other factors responsible for the
unwillingness of the victim to process the case through the criminal
justice system. The first is that the criminal justice procedure is time
consuming it takes indefinite time to decide the matter so ultimately it
results in to ‘justice delayed is justice denied’. The police take much time
for the investigation of case and this delay may be helpful to accused to
temper the evidence. Another reason is that there are frequent
adjournments due to this or that reason. The worst treatment of victims
arises from incompetence of the agencies who involved in the
proceedings such as distortion and swaying of evidence, concealing
material facts, overlooking relevant arguments, files disappearance,
failure to answer letters, failure to satisfy Court dates, decisions and
appeals. These are some of the major problems that have contributed to
the failure of the Criminal Justice System.
The prospect of the case and the experience of the victims who
report a crime is such that they may feel unmotivated to make the efforts
required to have a case prosecuted. Victimization studies of other
countries demonstrate that a majority of the victims even of serious

222
crimes do not report their victimization to police.41 Generally it is
experienced that victims who were serving as witness in criminal
proceedings found that the more experience a person had with the court,
the greater reluctance expressed about getting involved again.
The researcher discusses the role of prosecutor as he takes up the
case of the victim on behalf of the state. The emphasis of prosecution is
never on the personal concerns and problems of the victims. The
prosecution is committed to achieving successful prosecution, resulting in
conviction of the offender.
Contrary to the Indian conditions, the role of prosecutor in some
foreign countries, like the USA, is more favourably inclined towards
crime victims. Responsibilities of prosecutors towards victims, as per the
Report of President’s Task force report of victims of crime42 are,
I) To keep victims informed of the status of their cases, from the
initial charges lodged against defendants to the parole of convicts.
II) To bring to the attention of appropriate authorities the victims view
on questions of bail, negotiated pleas, dismissed cases, and dropped
charges, sentences, and restitution arrangements.
III) To protect victims from harassment, threats, injuries and other
forms of intimidation and retaliation.
IV) To resolve cases as quickly as possible without unnecessary
delays.
V) To help victims avoid needless waste of their time and money to
notifying them of court appearances and schedule changes.
VI) To assist victims in getting back stolen property recovered by the
police.

41
P.H. Ennis, “Criminal Victimization in United States: A Report of National Survey, National
Opinion Research Center, University Press, Chicago, (1967)., see also Law Enforcement Assistance
Administration, Criminal Victimization in United States (Vol.1), Washington D.C. Department of
Justice, (19740.
42
Final Report, Washington D.C.: U.S. Government Printing Office, (1982).

223
Apart from this report the US takes initiative to protect the interest
of crime victims. The US passed the Crime Victims Rights Act (CVRA)
on Oct. 30, 2004. The CVRA establishes the rights of crime victims in
federal criminal proceedings and provides mechanisms for victims to
enforce those rights. The CVRA gives victims a greater role in the
criminal justice process and significantly affects the way Department of
Justice Employees interact with crime victims.

In addition to the rights granted under the CVRA, crime victims


receive services to help them through the criminal justice process.
Pursuant to The Attorney General Guidelines for Victim and Witness
Assistance, victim service professionals in the various investigative
agencies and litigating components in the Department of Justice provide
numerous services to victims of federal crimes. These services begin at
the investigative stage and continue through the prosecution stage, post
conviction proceedings, and imprisonment. The services include
emergency assistance, counseling and social service referrals, assistance
with creditors, providing information about victim impact statements,
assistance with securing victim compensation, and restitution
information.

In U.K. also takes the initiative long back to protect the rights of
crime victims, as in 1964 itself they establish the compensation tribunal
to give compensation to victims. In 2001 in a report on “Criminal Justice:
The Way Ahead’, the policies consisting comprehensive guidelines for
rights of victim and their effective operation through the key components
of criminal justice system include a “better deal for victims and
witnesses.” More recently in 2013 the UK revised the Code of Practice
for Victims of crime which was launched in April 2006. The Code sets out
the services the victim can expect to receive from each of the criminal

224
justice agencies, like the police and the Crown Prosecution Service. The
Code makes it obligatory on the part of agencies who involve it the
proceedings to assist the victim at every stage of the trial.

In France also victims interest protected as victim is the part and


parcel of criminal proceeding. The victim enjoys a more formal status
and role within the investigation and trial phases in French criminal
justice system. The preamble to Criminal Procedural Code contains a
reference to the duty of the judiciary to guarantee the rights of the victim
throughout the criminal process, together with specific requirements in
the code to offer guidance and assistance to victims.

In France, all those who suffer damage on account of the


commission of an offence are entitled to become parties to the
proceedings from the investigation stage itself. He can assist investigation
on proper lines and move the court for appropriate directions when the
investigation gets delayed or distorted for whatever reasons. His active
participation during trial will be of great help in the search for truth
without inconveniencing the prosecution. He may suggest questions to
the court to be put to witnesses produced in court. He may conduct the
proceedings if the public prosecutor does not show due diligence. He can
supplement the evidence adduced by the prosecution and put forth his
own arguments. He would be of help to the court in the matter of
deciding the grant or cancellation of trial. He will adduce evidence in the
matter of loss, pain and suffering to decide on his entitlement of interim
reliefs and compensation by way of restitution.
Wrongful attempts to withdraw or close the prosecution due to
extraneous factors can be resisted if the court were to have the continued
assistance of the victim. For all these reasons and more, it is clear that if
the criminal proceedings have to be fair to both the parties and if the court

225
were to be properly assisted in its search for truth, the law has to
recognize the right of victim’s participation in investigation, prosecution
and trial.

In India also the Government of India takes the initiative to protect


the interest of victims and made several amendments in the existing
legislative framework but only question is that whether these changes are
sufficient to protect the rights of victim? The part of this movement the
Government of India appointed Justice Malimath Committee in 2000
with an intention to bring the reforms in existing criminal justice system.
The committee submits its report in 2003 and on the basis of this report
the Criminal Law (Amendment) Act, 2008 took place.

5. 9 J. Malimath Committee Report and Reforms in Criminal


Justice System

The Committee on Reforms of the Criminal Justice System was


constituted by the government of India, Ministry of Home Affairs by its
order dated 24 November 2000, to consider measures for revamping the
Criminal Justice System. The committee appointed under the
chairmanship of Dr. Justice V. S. Malimath, former Chief Justice of
Karnataka and Kerala High Courts, Chairman, Central Administrative
Tribunal and Member of the Human Rights Commission and other
members.
The terms of reference for the Committee are:
i. To examine the fundamental principles of criminal jurisprudence,
including the constitutional provisions relating to criminal jurisprudence
and see if any modifications or amendments are required thereto;
ii. To examine in the light of findings on fundamental principles and
aspects of criminal jurisprudence as to whether there is a need to re-write
the Code of Criminal Procedure, the Indian Penal Code and the Indian
226
Evidence Act to bring them in tune with the demand of the times and in
harmony with the aspirations of the people of India;
iii. To make specific recommendations on simplifying judicial procedures
and practices and making the delivery of justice to the common man
closer, faster, uncomplicated and inexpensive;
iv. To suggest ways and means of developing such synergy among the
judiciary, the Prosecution and the Police as restores the confidence of the
common man in the Criminal Justice System by protecting the innocent
and the victim and by punishing unsparingly the guilty and the criminal;
v. To suggest sound system of managing, on professional lines, the
pendency of cases at investigation and trial stages and making the Police,
the Prosecution and the Judiciary accountable for delays in their
respective domains;
vi. To examine the feasibility of introducing the concept of “Federal
Crime” which can be put on List I in the Seventh Schedule to the
Constitution.

The committee submitted its report to the Union Home Ministry on


April 2003 for further consideration and action. It is the first time in 150
years of Indian legal history that such wide-ranging reforms are being
proposed. The committee has suggested reforms in the existing criminal
justice system as they consider that “the criminal justice system is
virtually collapsing under its own weight as it is slow, inefficient and
ineffective” and that “people are losing confidence in the system”. The
recommendations however, have far reaching consequences for the rule
of law in India. The researcher intends to discuss only those
recommendations which are related to victims of crime and the
amendment took place on the basis of these recommendations.

227
The Malimath Committee made following recommendations to
improve the status of victim under the Indian criminal justice system.

1.The victim, and if he is dead, his or her legal representative, shall have
the right to be impleaded as a party in every criminal proceeding where
the offence is punishable with seven years imprisonment or more.
2. The victim may be made a party to assist the court in discovering truth.
He may be permitted to put questions or suggest questions to be put by
the court to the witnesses produced by the parties. He can also point out
the availability of other evidence that would assist the court in
discovering truth. On the victim furnishing such information the court
may cause production of such evidence as it considers necessary to
discover truth.
3. Active participation of the victim during investigation would be helpful
in discovering truth. He can assist investigation in finding out the real
offender and in collecting evidence to prove the commission of the
offence by the assailant. He can also offer suggestions for proper
investigation of the case. When the investigation proceeds on wrong lines
the victim can move the court for appropriate directions to ensure proper
investigation of the case.
4. The victim should have the right to be represented by a lawyer. If the
victim is an indigent person and is not in a position to engage a lawyer,
the State should provide him a lawyer. When the State has an obligation
to provide a lawyer to the accused, there is no good reason why the
victim should not be provided a lawyer at the cost of the State.
5. The victim or his representative who is a party to the trial should have
a right to prefer an appeal against any adverse order passed by the trial
court. In such an appeal he could challenge the acquittal, or conviction for

228
a lesser offence or inadequacy of sentence, or in regard to compensation
payable to the victim.
6. There is need for an officer equivalent to Probation Officer to take care
of victim interests in investigation and trial. He may be called Victim
Support Service Co-ordinator who may work closely with the police and
Courts to monitor, co-ordinate and ensure delivery of justice during the
pendency of the case.
7. Victims of rape and domestic violence etc. require trauma counseling,
psychiatric and rehabilitative services apart from legal aid.
8. Victim should get the compensation apart from the accused is
convicted, acquitted or absconded and it is the responsibility of State to
provide compensation to victims of crime or relatives of crime and State
should make such arrangement by providing funds to compensate the
victims of crime.

In nutshell we can say that the Justice Malimath Committee has made
some progressive and welcome recommendations to protect the rights of
victim. The rights include, right to participation, the right to produce
evidence, to ask questions to the witnesses, to know the status of
investigations and to move the court for further investigation, to advance
arguments, to participate in negotiations, and the right to appeal under
certain circumstances. Equally, the proposal for a Victim Compensation
Law enshrining the State’s obligation to compensate victims even when
the offender is not apprehended is a step towards a real protection of
victims of crime and human rights violations.
On the recommendations of J. Malimath Committee the amendment
took place in 2008, the researcher feels that, it is important one to analyse
those provisions which are inserted with an intention to protect the rights
of victim under Indian criminal justice system.

229
5. 10 The Code of Criminal Procedure (Amendment) Act, 2008 and
Rights of Victim
The Code of Criminal Procedure (Amendment) Act, 2008 brought a
radical and impactful change in the Indian Criminal Justice System by
introducing and redefining the rights of the victims. The victims were
conferred more rights and the major changes that took place have been
discussed below.
The most important thing is that the Code first time defines the term
victim as the term defined by inserting a new Section 2(wa). ‘Victim’
means a person who has suffered any loss or injury caused by a reason of
the act or omission for which the accused has been charged and the
expression ‘victim’ includes his or her guardian or legal heir.
The definition incorporated under this section widens the expression
‘victim’. The new definition includes a guardian or legal heir of the
victim and thus confers them with rights equivalent to a victim.
Appointment of an Advocate – A clause has been added to Section 301
(2) whereby a victim has right to engage an advocate of his choice to
assist the public prosecutor and who act as per the directions of Public
Prosecutor or Assistant Public Prosecutor, and may, with the permission
of the court, submit written arguments after the evidence is closed in the
case. In another way also a victim has right to appoint a lawyer of his
choice to assist the Special Public Prosecutor43 and his role is also same
as in earlier case.
Protection to Rape Victims – A proviso has been inserted in Clause (a)
of Section 26, which provides that any offence under Section 376 and
sections 376 A to 376 D of the Indian Penal Code shall be tried as far as
practicable by a Court presided by a woman. In Section 157, a second
proviso has been inserted in relation to evidence of rape, whereby
43
See Section 24 (8) of CrPC.

230
recording of statement of the victim shall be conducted at the residence of
the victim or in place of her choice and as far as practicable by the
woman police officer in the presence of her parent or guardian or near
relative or social worker of the locality. The said provision thus makes an
exception for the rape victims during investigation and confers them with
more rights. A new sub-section (1A) is inserted in Section 173 with a
view to provide that the investigation of the offence of rape of child shall
be completed within three months from the date on which the information
was recorded by the officer-in-charge of the police station. Also, a new
proviso has been added in Section 327(2), which provides that a woman
Judge or Magistrate should conduct the in-camera trial. The Law
Commission of India also made the above recommendations.44
Protection to Witnesses – The protection is conferred to witnesses of the
case and the person who tried to commit any threat to the witnesses such
persons are liable to be punished and a new Section inserted to make
provision for a witness or any other person on his behalf to file
complaints in relation to an offence under Section 195 A of the Indian
Penal Code.45
Right to Appeal – A new proviso has been inserted with Section 372
whereby the victim shall have the right to prefer an appeal against any
order passed by the Court acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation. Having regard to the
history of legislation and the case law it is strongly felt that the right of
victim limited to three categories is intended to be absolute and that it is
in consonance with the aim of the legislature to protect the victims.
Victim Compensation Scheme – A new Section 375 A was incorporated
in order to provide for the State Government to prepare in co-ordination

44
154th report, Law Commission of India.
45
See Section 195A of CrPC.

231
with the Central Government, a scheme called “victim compensation
scheme” for the purpose of compensation to the victim or his dependents
who have suffered loss or injury as a result of the crime. With the
introduction of this scheme the victim has been assured of a
compensation amount.
Earlier provision i.e. section 357 of CrPC was not able to serve its
purpose to compensate the victims or relatives of victims. The scheme is
based on Criminal Injuries Act, 1988 of Britain, whereby a Compensation
Scheme was incorporated to compensate the victims.46 Also, the Law
Commission of India in its 152nd Report and in the 154th Report suggested
this scheme. Thus, right to compensation becomes a reality for the victim
and this is bound to bring a radical change in the access to justice.

5. (11) Lacunae Existing in Our Criminal Justice System to Protect


the Rights of Victim
There are a number of issues, which have to be addressed and
included in our Criminal Justice System to reinforce and strengthen the
rights of victims. The Law Commission of India in its 154th report on
Code of Criminal Procedure, 1973 in the year 1996 and the Malimath
Committee on Reforms of Criminal Justice System, 2003 had also
highlighted some valuable points which are absent in our Criminal Justice
System. The major lacunae have been discussed below.
Right to Participate in the Proceedings
In the existing criminal justice system, a crime victim does not
have any significant role to play in the criminal process. The investigation
process is exclusively a police function and the victim has a role only if
the police consider it necessary. This is the time where victims need

46
Ss 126 – 142 of Powers of Criminal Court (Sentencing) Act, 2000; see also Part VI (Financial
Penalties and Orders)

232
assistance at most but the law is silent on it. Similarly, a
complainant/informant does not have any say if the Magistrate, on receipt
of a final investigation report (charge-sheet) from Investigating Officer
recommending dropping of the case, is inclined not to initiate action
against suspect / accused. The Code, in no way, requires the Magistrate,
to hear the victim / complainant/informant.47 However the Supreme
Court, plausibly realizing the statutory lapse mandated that a Magistrate
should not drop proceedings without giving notice to the parties adversely
affected. It is just and necessary that, the Apex Court asserts, these parties
should be heard before making an order of dismissal of the complainant48.
The existing law only envisages the prosecutor appointed by the
State to be the proper authority to plead on behalf the victim. However,
the Code does not completely prohibit a victim from participating in the
prosecution. A counsel engaged by the victim may be given a limited role
in the conduct of prosecution, that too only with the permission of the
Court.49 And a crime victim may be permitted to submit, with the
permission of the court, written arguments after the closure of evidence in
the trial.50 Thus, the Code restricts direct participation of the victims
lawyer in the trial.
Information to Victims
Owing to ignorance of law or lack of sensitivity, many police
officers at the police station level do not inform the victim of the action
taken by police relating to the commission of the offence reported to the
police station as per provisions of Section 173 (2) (ii) of the Code of
Criminal Procedure. Nor is there any statutory provision to inform the
victim of the progress of the case during trial by the prosecution. It is

47
K. I. Vibhute, Criminal Justice, Eastern Book Company, Lucknow, (2004), p. 381.
48
Public Service Commission v. S. Papaiah, (1997) 7 SCC 614.
49
See Section 301 (2) and Section 24 (8) of CrPC.
50
Ibid.

233
essential one that the police and prosecution may follow such procedure
to inform the victim of the progress of the case during investigation and
trial respectively.
Rehabilitation
The law fails to address the needs of the victim to be treated with
dignity, to sustained protection from intimidation, to readily access the
justice mechanisms, to legal aid and to rehabilitation.51 There is also no
statutory scheme recognizing the rehabilitative needs of the victim of
rape. The Malimath Committee on Reforms of Criminal Justice System
had recommended that victims of rape and domestic violence, require
trauma counseling, psychiatric and rehabilitative services apart from legal
aid. The object is to avoid secondary victimization and provide hope in
the justice system. At the police station level, with or without the
assistance of voluntary organizations, victim support services need to be
organized systematically if the system were to redeem its credibility in
society. The law fails to address the needs of the victim to be treated with
dignity, to sustained protection from intimidation, to readily access the
justice mechanisms, to legal aid and to rehabilitation. There is also no
statutory scheme recognizing the rehabilitative needs of the victims of
rape.
Legal Aid to Victim
There is no provision in the CrPC for providing legal aid to the
victim of a crime. Legal aid is available only to the accused.52 The Legal
Services Authorities Act, 1987 entitles every person “who has to file or
defend a case” to legal services.53 A victim of crime has a right to legal
assistance at every stage of the case subject to the fulfillment of the

51
S. Muralidhan, “Rights of Victims in the Indian Criminal Justice System”, 2004, also available at
http:// www.ierlc.org/content /a0402.pdf.
52
See Section 304 of CrPC.
53
Section 12(1) of Legal Services Authority Act, 1998.

234
means test and the ‘prima facie case’ criteria.54 The right of
representation by lawyer is a constitutional right of every accused55 and
there is no reason why it should not be available to the victim as well.
The Malimath Committee had also recommended that a victim has a right
to be represented by an advocate shall be provided at the expenses of the
State if the victim is not in a position to afford a lawyer.
Witness and Victim Protection
The Criminal Procedure Code recognizes some rights relating to
witness protection but is silent on the point of victim protection. Many
countries like the South Africa56, France57 and USA58 has set up
provisions for the victim protection. The Rome Statute also mandates the
Court to take appropriate measures for the safety of the victim.59
Bail and Withdrawal of Prosecution
In the granting and cancellation of bail, victims have substantial
interests though not fully recognized by the law. Criminal Procedure
Code may allow a victim to move the court for cancellation of bail,60 but
the action thereon depends very much on the stand taken by the
prosecution. Similarly prosecution can seek withdrawal at any time
during trial without consulting the victim61. Of course, the victim may
proceed to prosecute the case as a private complainant; but he seems to
have no right to challenge the prosecution decision at the trial stage itself.
The views of the victim are hardly heard while releasing an accused on
bail, even though the grant of bail will be materially prejudicial to his
interests, claims and security.

54
Ss.12 (10 (h) and 13(1) of Legal services Authority Act, 1998.
55
Article 22 (1) of Indian Constitution.
56
Witness Protection Act, 1998.
57
Art. 2-3, 85-91, 114-121, 371-375 Code of Criminal Procedure.
58
Victims of Crime Act, 1984.
59
Art. 68(!) of Rome Statute of ICC, 2002.
60
Section 439 (2) of CrPC.
61
Section 321 of CrPC.

235
Victim Impact Statement
The Code of Criminal Procedure confers a right of pre-sentence
hearing to accused to express his opinion about punishment but the Code
is silent regarding the right of victim to narrate about the loss which he
suffered due the act of accused. The victims also have some say or voice
realting to the quantum of punishment declared by competent court.
The researcher tries to discuss the various hurdles in the path to
give justice to victims of crime and also analyse the lacunae existing in
the criminal justice system especially after the Code of Criminal
Procedure (Amendment) Act, 2008. The amendment brought the number
of changes to protect the rights of victim but still it is essential one to
have more scope for victim to protect their rights and have a proper place
and voice under the existing criminal justice system.

5. 12 VICTIM RIGHTS VIS-A-VIS HUMAN RIGHTS


At first glance one would think there is much common ground
between the victim rights and human rights. Victimology has its main
focus and concern on the social, psychological, financial and physical
well being of victims, including victims of criminal acts and abuses of
power. When we try to trace the history of the international human rights
legal system we found that, it started by adopting general and wide-
ranging human rights Treaties62 as found in the International Bill of
Rights 1966.63 Following this, the international community proceeded to
develop more specific international instruments principally devoted to
certain categories of groups where there was a consensus that such a
group should be entitled to special human rights protection. Such groups

62
These were primarily the ICCPR and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
63
This also includes the 1948 Universal Declaration of Human Rights (UDHR) and the First Optional
to the ICCPR.

236
included refugees64, people who suffer from racial discrimination65 and
discrimination based on gender66, children67, Indigenous peoples68, people
with disabilities69, and people subject to torture or other inhuman
treatment or punishment70. Just like these other disadvantaged groups,
victims also have their own specific international instrument devoted to
advancing their rights and interests. This is of course what victimologists
refer to as the victims 'magna carta', the Declaration on Basic Principles
of Justice of Victims of Crime and Abuse of Power71. .
The Declaration is a specific instrument that solely concerns state
obligations towards a broad range of victims - victims of crime and abuse
of power
Another indication that victims rights are human rights is that there
are many examples of victims and their lawyers using the general
provisions of some prominent human rights Treaties to seek redress and
vindicate their rights. These provisions do not mention the word victim
directly, and consist of a number of commonly accepted human rights
protections, such as the right to life, the right not to be subject to torture
or inhuman or degrading treatment, the right to security of the person, the
right to privacy and equality before the law.
In the USA and Australia, State and Territory governments that
have the primary responsibility criminal justice have taken many steps to
ensure that the international standards articulated in instruments such as

64
The primary international instrument protecting such people is the Convention relating to the Status
of Refugees 1951.
65
The primary international instrument protecting such people is CERD.
66
The primary international instrument protecting such people is CEDAW.
67
The primary international instrument protecting such people is the Convention on the Rights of the
Child 1989 (CROC).
68
The primary international instrument protecting such people is the Draft Declaration.
69
The most recent international instrument protecting such people is the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities, General Assembly Resolution 48-96, 20
December, 1993.
70
The primary international instrument protecting such people is CAT.
71
G.A. res. 40/34, annex, 40 U.N. Gaor Suup. (NO.53) at 214, U.N. Doc. a/40/53 (1985).

237
the Declaration have become a reality. In the USA about 33 State
governments have passed Constitutional amendments to advance the
protection of victims' rights72, and all State governments have enacted
legislation in one form or another that covers the treatment of victims
during the criminal justice process.
In Australia, the South Australian government in 1985 instituted an
administrative 'Declaration of Victims' Rights' that provided for certain
rights of crime victims in relation to criminal justice and other processes.
In India, some rights of victim are set up as fundamental rights and
directive principles in constitution of India.
It is certainly true that traditionally human rights proponents have
tended to focus particularly on the duty of states to protect the rights of
people living under their control by preventing human rights violations
committed by the government itself or its agents. This is often referred to
as the 'vertical' operation of human rights. There is some evidence,
however, that human rights advocates and scholars are taking much more
notice of violations committed by individuals against other individuals,
and the resultant responsibility of states to prevent such violations, from
occurring. This is often referred to in the literature as the 'horizontal'
application of human rights. One obvious example is that many feminist
scholars have insisted that 'Crimes such as domestic violence and child
abuse, even though committed by individuals against other individuals,
should be part of international human rights considerations, primarily
because the state has not done enough to prevent such victimisation. Even
though the state might have criminalised such behaviour, the argument is
that it bears some responsibility for creating the type of male dominated
society where such crimes seem to flourish. The State also is responsible
for the criminal justice system that makes it particularly difficult for
72
See Karmen Andrew, An Introduction to Victimology, 5th ed., Wadsworth Publishing, (2004), p. 109.

238
victims to report such crimes, and where they do, to then proceed with
their further involvement in the system. At a theoretical level, the
argument is that the public/private dichotomy also pervades human rights
discourse, and the historical exclusion of individual wrongdoing from
human rights consideration has led to the marginalisation of the main
forms of harms that women and children face around the world. An
indication that such arguments are being taken seriously by the
international community is the agreement of the UN General Assembly to
the 1993 Declaration on the elimination of violence against women.73
In more recent times, owing to international criminal justice, more
victimologists are becoming aware of the needs of victims of government
wrongdoing, including the victims and survivors of international crimes
such as genocide and crimes against humanity. Logically there is a great
deal in common between victims of the typical domestic crimes (like
assault and burglary) and victims of international crimes, and it is thus
artificial to separate the two types of victims. Both types of victims are
likely to suffer similar psychological, social and financial losses,
although, if anything, the psychological losses for victims' of
international crimes are likely to be greater because these crimes are a
result of state policies. This means that, unlike most domestic crimes,
these crimes have been directly been sanctioned and even organised by
the state, and this is likely to produce an extra detrimental psychological
effect. Then, comes the arguments against proposition that victims rights
are human rights.
The important argument is that all victims rights clash with
accused and convicted person's rights. But in fact, the majority of victims
rights does not clash with the rights of accused people, and so for at least
these victims rights there is not problem in terms of offending these
73
Adopted on 20 December 1993, GA Res 48/104.

239
rights. For example, Sara Faherty74 classifies crime victims rights into
three groups. The first category is the general right to be treated with
respect and sensitivity, as well as 'minor conveniences' rights : such as
comfortable courthouse waiting rooms, on-site day care, transportation
services, and fewer time delays, along with needs such as protection from
intimidation by the offender.
Her second category is informational rights and the right to be
present during proceedings, rights that she also regards as of little effect
on the rights of accused persons, although they clearly impose a greater
burden on the state. Her third category of victims rights is 'participatory'
rights that she does acknowledge are much more controversial because
they may adversely affect the rights of accused and convicted persons.
Clearly under Faherty's classifications, two out of three of her categories
of victims' rights do not clash with the rights of accused people or
prisoners.
Well known victimologist Andrew Karmen classifies victims rights
more in terms of whose expense they may be. He refers to two primary
categories - those gained at the expense of accused persons, which clearly
may clash with the rights of accused persons, and those gained only at the
expense of the State. Victims rights in the latter category includes rights
to obtain information concerning criminal justice decisions and processes;
to be treated with respect, sympathy and understanding by criminal
justice officials; to call upon psychological and practical support and
services in the period following the offence; and to receive compensation
from the state in cases of criminal violence.75 Again, these rights
constitute the majority of victims' rights and do not generally clash with

74
Sara Faherty, Victims and Victims Rights, Chelsea House Pub. (1999), p. 120.
75
Ashworth A., ‘Victim Impact statements and Sentencing’, Criminal Law Review, (1993), p. 499.

240
the rights of accused persons, and are in the main supported by the
community and criminal justice professionals.
What is perhaps more likely to occur in many situation is that the
courts will interpret or read down the pro-victim measure in such a way
that does not infringe human rights, and the measure will be acted upon in
perhaps a much more limited or circumscribed manner. The overall effect
of this is that in such situation victims rights are subject to the rights of
accused persons, and there seems to be no problem with victims and
accused rights potentially clashing. Provided care is taken in introducing
victims' rights, they are able to coexist with the rights of accused persons.
One thing we should not forget that our judiciary administer our
criminal justice system. In India, we follow the Adversarial Criminal
Justice System and the important feature of this system is the ‘fair trial’,
where both the parties i.e. accused and victim get equal chance to put
their submission before the competent court. More important is that the
accused enjoyed more rights even the rights in the form of fundamental
rights to prove his or her innocence. So it is wrong to say that the victims
right might infringe the rights of accused persons.
Ultimately we can say that accepting the victims' rights as human
rights has important implications for crime victims and their advocates.
They will be able to approach courts, tribunals and other administrative
bodies, and government agencies and bureaucrats, with claims for various
rights found in international instruments and national legislation and
guidelines.
So, the human rights are thus victim's rights while they may have
different emphasis, they do complement each other and clearly those
working in both areas need to work together towards the goal of
achieving better outcomes for both accused persons and for victims of
crime.

241
The extent to which human rights are respected and protected
within the context of judicial proceedings of a State is an important
measure of its society's civilisation. Another important aspect is to what
extent the human rights of the accused and victim be protected. Over
emphasis on the protection of one interest is bound to have an adverse
impact on the other and therefore, an even balance has to be struck
between the two interests. The law and judiciary are entrusted to find the
dividing line so as to harmonise the two interests without causing
detriment to anyone. By and large the Supreme Court, of our country has
through progressive and humanistic interpretation, enlarged the rights of
the accused and victim of judicial administration with a view to protect
the interest of the innocent and sufferer and preventing abuse and misuse
of police powers.
It is one of the most important duties of the State and all its organs
to provide justice and correct institutional and human errors affecting
basic needs, dignity and liberty of human being. Fortunately, India has a
pro-active judiciary which always takes the initiative to protect the human
rights of various victims of crime. It can well be aspired that in the times
ahead, people have right to live with dignity, as a true human being,
without being victimized, will further be strengthened.

242