Forums > Discussion Forum > Grievance Forum
Date: Wednesday, 14 August 2003
Time: 08:06:00 AM
The main concern of the Criminal Justice System, so far, has been offenders, their arrest, human rights, conviction, reformation and rehabilitation. The criminologists and Penologists are also primarily concerned with them. The victims of crimes have received very little attention from them. The rising trend of crime and violence in the society can't be explained by anxiety for the offenders alone. Unless victims, who are the foundation stones of the Criminal Justice System, are given their due, and are duly compensated and rehabilitated, the society can not be at peace with itself. It calls for a paradigm shift, as has taken place in some countries of the world, and enforcement, in spirit and letters, of existing provisions of law for compensating the victims of crimes. It also calls for some amendments in the existing provisions of laws and some legal and social engineering. Victims are the foundation stones on which the whole edifice of the criminal justice system is built ands rested upon. It is with them that the whole criminal justice process starts. If there were no victims, there would not have been a need for such an elaborate system, known as Criminal Justice System (CJS). It is they who set in motion the criminal laws of the land. Yet, like the proverbial foundation stones, they are not only forgotten but so far has been subjected the worst kind of neglect by the process they send forth. The time has come to give them the attention they deserve. And this is what the subject of victimology is all about. Cinderella is crying for attention!
Latin word "Victima" and Greek word "Logos" combine to give the term Victimology. "Victima" stands for one who is harmed by or made to suffer from an act or circumstances, agency or condition. "Logos" means speech, word, reason or account. So, victimology is a study of crime from the viewpoint of victims. Though the term was used, first time, in 1947 by a French lawyer Benjamin Mendelssohn, this branch of criminal administration is not of recent origin, as it might appear to be. When man, in the 'State of Nature', surrendered his right of personal vengeance, he expected and the State assured him that it will protect him from violations of his person and property. It was the 'Social Contract'. There are suggestions of it in Manu Smriti, the Bible-Book of Exodus, and the Code of Hammurabi. They all suggested that the victims of criminal acts should be compensated. Kautiliya, in his epoch making treatise Arthashastra, lay down that when a citizen suffers at the hands of either state or individuals, he should be compensated adequately. Necessary funds should be created even by imposing punitive fines. Public exchequer could provide relief to those who suffered owing to the failure of the state to protect them from predators. In early Roman law, criminal actions were indistinguishable from civil actions, in the sense that monetary compensation was chief remedy for injuries suffered.
As Holmes points out, "there can no justification for punishment as retribution if the criminal has made restitution to the victim party who has suffered because of his crime". As Shapland and others put it, relief by way of compensation is regarded as "a tangible expression of State's sympathy and concern for those who, though no fault of their own, suffer unjustifiable invasion of their personal integrity". With the lapse of time, the System (The Criminal Justice System) became criminal oriented. First, apprehend him and then punish him. His arrest, his human rights, his imprisonment, conviction, reformation and rehabilitation are more important considerations. Criminologists and penologists too have shown much concern and paid much attention to them, taking them to be victims of the situations and circumstances. They may be so in many cases. The victims of crimes occupy very little place in their concern. He is frequently the neglected party in the criminal justice system. He is almost consigned to oblivion. The victims of the crime are victims twice over-once when they suffer at hands of criminals and secondly, when they confront the insensitive police and judicial mechanism. In offences against property, material loss is suffered. They may suffer physical trauma as well in violent crimes. But in offences against person, they suffer some thing more--a very deep psychological scar. At the hands of police they, normally, receives a treatment they never deserve. It takes all efforts on their part to prove that they actually suffered. Protracted investigation, with all its ill effects, has its own toll on the poor victims. In courts, they have to run around all the minions of the system and that too for years without end. If a victim has suffered sexual harassment, which has also social stigma attached to it; he/she has to relive the trauma again and again. Conviction may still delude him/her. Following figures would speak for themselves. The total IPC crimes under investigation during 1997were 21,95,848. Only 11,68,251 of them were charge sheeted. 4,58,558 remained under investigation at the end of the year. If we look to the figures of cases disposed off by courts, during the same period, the picture would be still grimmer. Total number of IPC cases for trail, including pending cases, for the year1995 was 50,42,744, trail of only 7,63,944 could be completed and conviction could be secured in only 3,21,609 cases. 41,20,443 still remained pending under trail. So victims in the pending cases do not have even the satisfaction of just retribution by way of punishment to the persons who perpetrated crimes against them. And at end he is left high and dry-with no sense of satisfaction. Can this situation be so satisfying to them as to wean them away from private vengeance? Can it restore his confidence in the system? Definitely not. We are witnessing, in many parts of the country, a senseless killing of one group of people by another. To a great extent, it can directly be attributed to the failure of the system to assure the victims of the crime that there is no need for them to resort to personal vengeance. 207 persons got killed in Bihar between April 1995 and March 1999. This is but an example of victims reverting back to the right of private vengeance just because the State not only failed to protect but also to give to the victims a sense of just retribution in the shape of punishment to the marauders. A sense of betrayal seems to have taken over. Lower registration of the cases is the obvious outcome. If witnesses run hostile the system can't blame any body but itself.
In Indian criminal laws, there are provisions for payment of compensation to the victims of criminal acts. The fathers of the Indian criminal laws had "social harmony" in their mind. So they made provisions for compounding of certain types of offences. Section 320 of Cr.P.C. enumerates, in two Tables, offences, which can be compounded with and without the consent of the court after launching of the proceedings. The term 'compounding' stands for taking away cases from courts even after proceedings have ensued therein. The first Table of section 320 Cr.P.C. consists of offences, which are essentially "personal in nature", while the offences listed in second Table are of more serious nature having wider ramifications on society and can be compounded only with permission of the court. Section 358 of Cr.P.C. empowers a Magistrate to award a compensation not exceeding Rs.100 to an accused from a complainant for loss of time and expenses incurred on account on being groundlessly arrested at the instance of the complainant. Under section 359 Cr.P.C, the court may order a convict to pay reasonable cost incurred by the complainant in prosecution of a non-cog. Offence. Section 357 Cr.P.C. and section 5 of the Probation of Offenders Act are the main provisions which specifically empower the courts to order payment of compensation to the victims of crime. Sub-section (1) of section 357 Cr.P.C. lays down that "when ever a criminal court imposes fines, the court may, when passing out judgment, order the whole or any part of the fine recover to be applied:- (a) in defraying the expenses properly incurred in the prosecution; (b) in payment to any person of compensation for any loss or injury caused by the offence when, in its opinion compensation irrecoverable by such person in civil court; (c) when any person is convicted for any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to recover damages from the person sentenced for the loss resulting to them for such death and (d) When any person is convicted of any offence including theft, criminal misappropriation, criminal breach of trust, or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of stolen property knowing or having reasons to believe the loss of the same if such property is restored to the possession of the person entitled thereto". Sub-section (3) of section 357, inserted for the first time in 1973 is positive step toward compensating the victims. Under section 5 of probation of Offenders Act the court in its discretion may require the offender to pay 'reasonable compensation' to the aggrieved for' loss' or 'injury' cause to him and 'costs' of the proceedings. The compensation and costs so ordered are recoverable as fines in accordance with section 421 read with section 431 of Cr.P.C. by attachment and sale of moveable property of the offender and/or as arrears of land revenue from his moveable or immovable property or both. Whatever provisions are there, they are seldom used for the benefit of the victims. The Honourable Supreme Court of India has lamented this fact in N. B. Panth vs. State (AIR 1977 SC 892), Sarwan Singh vs. State of Punjab (AIR 1978 SC 1525) and Guru Swami vs. Tamilnadu (AIR 1979 SC 1177). It urged the subordinate court that "requirement of social justice demands that heavy fines should be imposed on the accused who has the capacity to pay in lieu of reduction of sentence to compensate to the victims of crimes". In Hari Kishan and State of Haryana vs. Sukhbir Singh (AIR 1988 SC 2127), the court observed that section 357 (3) is an important provision but the courts have seldom invoked it. Perhaps due to ignorance of the object of it". The power of court to award compensation is not" ancillary to other sentence, but it is in addition thereto". "This power", the court observed, "was intended to do some thing to reassure the victim that he or she is not forgotten in the criminal justice system. It is, to some extent a constructive approach to crime. It is a measure of responding appropriately to crime as wells of reconciling the victim with the offender. It is indeed step forward in our criminal justice system. We, therefore, recommend to all court to exercise this power liberally so as to meet the end of justice in a better way". In Palaniaappa Gouunder vs. Thailand (AIR 1977 SC 1323), it, however, caution that the fine imposed on an accused sentenced to death or life imprisonment must not be excessive. The pathetic state of affairs can be imagined from the example of use of various sections of CR.P.C. And other sections of laws for the benefit of the victims in the Districts. Of Hazaribag, Koderma and Chatra, Bihar (now Jharkhand). It the year 1997-98 (till December '98), fines, pending Realization was Rs.304860. Fines imposed between Jan. 98 to Dec. 98 came to Rs. 2,46,745. As against it, realization came to Rs.2,38,645 only. No figure could be had regarding payment to the victims but it was reliably learnt that hardly any compensation was paid to the victims.
The 47th report of Law Commission also regretted that the courts do not exercise the statutory power as freely and liberally as could be desired. The commission had not only recommended insertion in the IPC of clause requiring the trial court to pass compensatory order payable out of the fine imposed to the victims of crime but also suggested an amendment in section 357 of CR.P.C. to make it obligatory for courts to record reason for not doing so in suitable cases. But it did not find favour with the lawmakers.
The above give glimpses into the provisions of laws concerning compensation to the victims of crimes and the pathetic implementation of the same by the courts of law. There are no other forms of legislation in our country to compensate the victims of the crimes. Announcement of compensation by Government to the victims of mass murders, arsons etc. are examples of knee-jerking reactions of the state. Moreover, they are highly discretionary in nature and are quite ad-hoc. Human Rights Commission is doing a yeoman's job in the field of compensation to the victims of crimes. But a great deal of efforts has to be made by the victims or some body on their behalf to secure compensation. The compensation provisions in the Fatal Accidents Act of 1855, the Indian Motor Vehicle Acts and Workman's Compensation Act are accidental and civil in nature. But it is not so in many countries of the world. New Zealand came out with legislation in the year 1963. Followed by U.K. in1964, Netherlands, Norway Germany and Tasmania in1976, France and Canada in 1977. They all aim to compensate victims of the criminal offences from public funds.
We are talking, so far, of only monetary compensation to the victims of crimes. But victimology does not consist of providing only monetary compensation to the victims of crimes. In fact, victimology, in broader perspective, should not only aim at providing monetary relief to the victims of crimes. It should aim at reducing grief, trauma and hardship caused to the victims of the crime. Attempt should be made for complete rehabilitation of the victims. In the aftermath of violent crime, victims must often cope with physical pain, psychological trauma, financial loss, and court proceedings "that all too frequently seem impersonal and confusing." The 7th U.N. Congress on the prevention of crime and the treatment of Offenders, 1985, adopted a declaration of Basic Principle of Justice for Victims of Crime and Abuser of Power which was finally adopted by the General Assembly at its 19th Plenary Meeting on Nov.29, 1985. The declaration emphasized the need for assistance to the victims of crime at all stages and specified basic standards of treatment for them. So now a paradigm shift has to take place, (and is gradually taking place) in favor of victims and complete rehabilitation thereof, so that they are not only reconciled with the offenders but the society as a whole. The Criminologists are also trying to study crime from the point of view of victims and not the criminals alone. A realization is gradually dawning on them that unless victims are duly compensated and completely rehabilitated, they can't be persuaded not to revert to personal vengeance. The problem of crime can't be fully kept under a leash without a better cooperation of the victims. Nor can the society be made more humane with the rehabilitation of offenders alone. But nothing tangible seems to have been achieved, so far, in our country on this front. What can be done about it? A multi pronged action plan has to be launched for helping the victims of crime. It calls for some 'social and legal engineering'. Crime is a social problem, so it has to be the responsibility of the whole society. Hence, victim support scheme can't be any exception to it and it too should have community participation - involving police, leading citizens and NGOs. A team can be formed and it could be named "Victim Crisis Management Team" The members of this team should intervene immediately after a violent crime has taken place. It should visit the victim(s) thereof, rendering all possible assistance starting from medical help, to transportation, legal advice, monetary and legal help and counselling etc. The members of the team can be drawn from amongst advocates, doctors, physiologist, social workers, NGOs, religious institutions and philanthropists. The best person who can work as a" nodal person" can be the Beat Police Officer. The mechanism of its working can be worked out by the members as it will be, basically, a voluntary organization. But police has some extra role to play. It has to put-up an example by giving a decent treatment to the victims of the crime and by maintaining a positive stance towards the other members of the Team. FOP should also be associated.
In the courts, victims are the prime witnesses too. They are mostly ignorant about the procedures and formalities of the courts. So, they are quite at loss when they have to face the courts. Fear and frustration born out of it can be seen on their faces. Hence, a "Witness Assistance Team" would go a long way in reducing their difficulties and overcoming their emotional anxiety and trauma associated with testifying in the courts of law. The team should consist of the chairperson of the Free Legal Aid Committee (FLAC), Assistant Public Prosecutor, a member of the bench and member of NGOs. The Chairperson of the FLAC can work as the nodal person of this team. The team can encourage victims to cooperate with the prosecution. It can explain to the victims the need and importance of their cooperation for the successful culmination of criminal proceedings. It can explain to the victims the need and importance of their cooperation for the successful culmination of criminal proceedings. It can further explain to them their right to receive dignified and compassionate treatment from the Criminal Justice System. The procedure of the courts can be explained to them. They can be advised of the rescheduling of the trials, saving them of great harassment, both physical and fiscal. They can also be helped in refreshing their memory of the details of the crimes because trails take place after a long gap of time. It can also provide, with the cooperation of the bench, a decent place for the witnesses to wait in the court premises. Certain amendments are also needed in the present previsions of laws concerning compensation to the victims of the crimes. Firstly, the monetary limit of Rs. 250, as laid down in Section 320 of Cr.PC should be further enhanced to make it more meaningful. Secondly, the limit of Rs. 100 in Section 358 of CR.PC should be enhanced further so as to make it real deterrent. Again, as suggested by 47th report of Law Commission, an amendment should be made in sec. 357 of Cr.PC to make it obligatory on courts to record reason(s) for not awarding compensation to the victims. Courts should make liberal use of Sec. 357 of Cr.PC.
The main hurdle in the way of compensation to the victims is financial. But it is a common knowledge that quite a formidable sum is realized by way fines in the country. A portion of it can be earmarked for the rehabilitation of victims. Further, like some countries abroad, can State not, to the remaining extent, provide fund for rehabilitating victims? What is needed is the concern of the State for them because the time has come now when this vast chunk of the society cannot be left feeling cheated by the System. Certain amount of "engineering", by the triumvirate of the criminal justice system, is also called for. What I mean by engineering is the concern and effort by them towards the betterment of the lot of the poor victims of crimes. I am sure, if they apply their brilliant minds to the problem, victims are certain to gain. Educating the members of police force, bar and bench in victimology would be another step in this direction.
Anil Kumar Singh,
IPS (Rtd.), Patna.
203, MIG Road No.4,
Hanuman Nagar, Patna-4