Chapter: 24

VICTIMS AND FAIR TRIAL

NITHYAPRASATH. S
Student, Third Year Chennai Dr. Ambedkar Government Law College

SANDHIYA .M
Student, Second Year, Chennai Dr. Ambedkar Government Law College, Pudupakkam

ABSTRACT
Generally during the process of administration of criminal justice the victims are ignored and they are
just treated as the witnesses and evidence of the crime. While the offenders of the crime enjoy the protection of
law that they are treated as innocent until the guilt is proved without any reasonable doubt but in the case of
victim of crime he does not attract those kind of protection from the law. By the way of Constitution, IPC
through Criminal law Amendment Act 2013 and through Criminal Procedure Code, 1973 the legislation has
came with some rights and protection. Under section 357 of the Crpc, the court has the power to issue
compensation to the victim. According to UN declaration the victim needs to informed about the various
information and development of the proceeding and they should be treated with dignity and should not be
objectified in order to access to fair justice. The presumption of innocence of accused person, the judges must to
impartial, independent, protection from double jeopardy are some of the principle which is embedded in our
Constitution, Crpc and few other legislation which ensures fair Trial. The concept of fair trial must be ensured
in order to derive justice. In this paper the Authors will be discussing about the various rights and schemes
available under the legislations and suggestions to ensure justice to victims and fair trial.
Keywords: Victim‟s compensation scheme, Victim‟s Rights, Fair Trial, Justice, dignity

P-ISBN- 978-93-88996-72-3, E-ISBN- 978-93-88996-73-0

 Contemporary Indian Laws: Issues and Challenges

INTRODUCTION
During ancient times the justice for wrongful acts was in the hands of the victim but with
growing time it becomes difficult for victim to collect evidence and produce the offender before the
court of law, so that the concept of private justice was put back by public justice where the
investigation and prosecution for crimes are look after by the state instead of victim. In our criminal
justice administration system the accused were given more importance and the victims were
marginalized, they are just treated as the witnesses and evidence of the crime. By the end of 20 th
century for the protection of victims of crimes the UN declaration of basic principle of justice for
victims of crime and abuse of power was introduced, which sets minimum standards and norms to
acknowledge the major need of the victims, which follows as

1. Access to justice and fair treatment

2. Restitution for the victims

3. Compensation

4. Assistance for the victims.

Many countries with the assistance of this UN declaration 305 have launched exclusive
legislation to deal with the requirements of the victims in criminal justice administration system.

Research Methodology

The authors have used doctrinal research methodology to address the concept to justice to
victims of crime and fair trial. The authors have come across many judicial precedents, Law
Commission Reports and legislature to deal the concept.

Objective

 To identify the position of victims in Indian Criminal Justice Administration System

 To ensure fair trial in administration of criminal justice

 To improve the victim‘s social conditions

 To ensure victims fairness and ensuring their participation in court proceedings

Role of victims in Indian Criminal Justice Administration System

In its 154th report Law Commission of India306 stated that in a crime the victims are the worst
suffers and they have no role in the proceedings of the court, so it recommended that they have to be
given certain rights and compensation and there is a need for victim oriented motion in criminal
justice administration system. It also recommended that the victim should receive prime concern in
response to a crime. Malimath Committee 2003 307, in its report on ‗Reforms of Criminal Justice
System‘ recommended for the participation of victims of crime in criminal justice system at various
stages of the proceedings and it also recommended for the expansion of compensation to the victims
of crime. In response to these recommendation certain amendments were took place in the code of
Criminal procedure.

Definition of victims

Definition of victims in the code was introduced in 2008 after the recommendations of
Malimath committee report. Section 2(wa) of the Code of Criminal Procedure defines victims as a

305 Declaration of Basic Principles of justice for victims of crime and abuse of power, 1985, available at: <
https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-
abuse> ( visited on May 10, 2023)
306 Law Commission of India, 154th report on Protection and facilities to witnesses, (1996)
307 Malimath Committee report on Reforms of Criminal Justice System, ( March 2003)

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person who has suffered any loss or injury as a result of act or omission for which the accused has
been charged for the offence. The definition covers his/her guardian and their legal heir under the
expression victim.

The definition of the term victim in UN declaration looks broader in approach when
compared to definition of victim under section 2(wa) of the code 308. It recognize victims of crime
under two categories namely,

1. Victims of crime and

2. Victims of abuse of power

Unfortunately either the Malimath committee or section 2(wa) of the code failed to address
the victims of abuse of power where under this category the victimization is a result of state action.
The major drawback in our scenario is that the expression victim is limited to only their guardians
and their legal representatives and another stumbling block is our criminal justice administration
system is that the injured party won‘t be treated as victim unless the accused or offender is charged of
the offence. In Ram Phal v. State309, the Delhi High Court held that the expression victim in section
2(wa) of code does not restrict to only bodily injuries or harm but it must also include harm caused to
the mind.

FAIR TRIAL IN INDIA

A trial is the process of examining an offence by a judicial body it provides an opportunity for
the wrongdoer to show his innocence, and it is conducted by a fair lawyer in the presence of the
accused and presided over by a neutral judge all are treated equally unless found guilty.

In India the definition of fair trial is not defined in any statutory provisions but it was
guaranteed by the other legislations such as under Article 21, 20(1), 20(2), 39A of the Indian
Constitution. In the case of Babu Singh v. State of Uttar Pradesh, Justice Krishna Iyer stated "Our
justice system, even in serious instances, suffers from slow motion syndrome, which is fatal to a "fair
trial," regardless of the final verdict and speedy trial is also a part of fair trial 310.

PRINCIPLES OF FAIR TRIAL

1) Presumption of Innocence

The Latin legal maxime" Ei incumbit probatio qui dicit, non qui negat", which states that the
burden of evidence is on the party making the assertion rather than the one making the denial,
Section 101311 strengthens the presumption of innocence by stating that anyone who wants a court to
rule on a legal right . In the case of Dataram Singh v. State of Uttar Pradesh 312, the court ruled that
even if a person is found guilty, their freedom cannot be taken away permanently. Only after the guilt
is established may this freedom be violated.

2) Right to Open Trial

Section 327 of the code calls for open courts for public hearings, but it also gives the
presiding judge or magistrate the discretion to refuse entry to the court to anyone in particular or to
the general public if indecent material is being disclosed, there is a chance of a disturbance, or for any
other reasonable reason. State of Punjab v. Gurmit 313, the court held that the undue publicity is

308 The Code of Criminal Procedure, 1973

309 Ram Phal v. State and ors, CRL.A. NO. 1451/2012
310 Shourya Kackar, ‗The Concept of Fair Trial Under CRPC‘, S. Bhambri & Associates, Available at: <
https://www.sbhambriadvocates.com/post/the-concept-of-fair-trial-under-cr-p-c> (visited on May 10, 2023)
311 Indian Evidence Act, 1872
312 Dataram Singh vs State of Uttar Pradesh, Criminal Appeal NO 227/2018
313 The State of Punjab V. Gurmit Singh & Ors, 1996 AIR 1393

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evidently harmful to women victims of rape and other sexual offenses so Section 327(2) provides that
the inquiry conducted in camera.

3) Autrefois Acquit and Autrefois Convict

Article 20(2)314 of the Constitution says that ‗no one can be prosecuted and punished for the
same offence more than once. Section 300(1) of the Criminal Procedure Code also upholds this
principle. In the case of Thomas Dana v. the State of Punjab 315 claim the protection the rule against
double jeopardy, it is necessary to show that there was a previous prosecution and that the accused is
being punished for the same offence again.

Victims role in Pre Trial Process

UN declaration in its clause 4 recommends to treat victim of crime with compassion and
respect. As per section 154316 of the of the CrPC, the Victim of a cognizable offence can give the
information of the offence to the police officer, who should reduce in writing and the victim can get
the copy of the First Information Report but it is happening in every cases where they are not still
sensitized to under the pain, trauma and agony of the victim.

If the officer fails to record the information given then the victim is can send the information
in writing to the superintendent of police. Where in the case of offences against women it is obligatory
for the police officer to record the information of the offences, erring officer shall be liable for
punishment under section 166A of IPC. Under section 19(1) or 20 of the POCSO act the erring police
officer will attract criminal sanction up to one year of imprisonment and fine under section 21 in case
of failing to record the information of the offences. In the case of Lalita Kumari v. Government of
UP317 the Supreme Court held that in all cognizable cases the registration of FIR is mandatory, in
failing cases the victim can directly reach the Magistrate and can report his complaint.

Reporting procedure in case of sexual offences

In case of any acid attack, sexual harassment or rape are attempted or committed against any
women then the information under section 154 of CrPC should be recorded by only women police
officer. If such victim is either physically or mentally disabled, then such information shall be
recorded at the residence or any other convenient place with the help of special educator or
interpreter and such recording shall be videographed 318.

Role of victim in investigation Process

During the process of investigation victims have no right to seek information until the charge sheet
is filed. Under section 169 of the Code the victim or informant have the right to receive notice in case
of police filed a closure report or Magistrate decides upon the report submitted under section 173 of
Code not to take cognizance of the offence. The victim or informant may prefer protest petition in
case the officers files a closure report.

Victim’s right to participate in trial

During the process of trial the role of victim is limited to only prosecution witness but in our
country even the accused person has the right to legal representation as a fundamental right. The
state appoints the prosecutor and he take the full charge of the case, so the victim have no say in lead
over the prosecution.

Section 24(8) proviso, 301(2), and section 302 of the Code of Criminal procedure ensure a

314 Constitution of India, 1950

315 Thomas Dana v. the State of Punjab, 1959 AIR 375
316 The Code of Criminal Procedure
317 Lalita Kumari v. Government of UP, Criminal Appeal No. 1410of 2011
318 Amitesh Deshmukh, ―victim rights in criminal justice system: A Comparative Analysis‖, 11 RJSH 10 (2020)

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vital right to the victim, where it allows the victim to step into trial through his pleader and he has the
limited role in prosecution but he has to act under the supervision of the public prosecutor. With the
prior permission of the court, the pleader so appointed has the right to submit written arguments.
During the process of trial the pleader equipped by the victim shall act as a watch advocate to protect
his interest.

In the case of J.K. International v. State, Govt. of NCT of Delhi 319, the Supreme Court held that
even the prosecutor appointed by the state is the only person authorized to conduct the prosecution,
the victim appointed pleader is not debarred in the conduct of prosecution who is aggrieved by the
offence.

Victim’s right to appeal

An amendment provision was added to section 372320 in 2008 which ensured the right to
appeal by the crime victim, where a victim may favor an appeal under the following situations as
follows

1. Against the order of acquittal of the accused

2. Against the order for conviction for lesser offence

3. For inadequate compensation

But this provision does not guarantee the right to appeal for the enhancement of sentence
which is still the privilege of the state under section 377 of the Code of Criminal Procedure.

Victim’s right to compensation

Section 357, 357A of the Code of Criminal Procedure provides compensation to the victims of
crimes. Section 357(1)(b) of the code provides compensation to victims of crime through the fine
imposed on the accused for the loss or injury by the offender. Section 357(3) of the code provides
compensation even the fine does not form the part of sentence. Rather punishing an offender the
payment of compensation would be a token relief to the victim of crime.

Limitation to section 357 of the code

a) If the offender is not convicted or sentenced then the compensation cannot be provided

b) Payment of compensation from the fine is recoverable by the crime victim in a civil court

c) If the period for the appeal is still pending or until the appeal is disposed the payment remains
suspended

d) Order under section 357(3)321 of the code will be failure if the offender does not have any
financial assistance.

Victim Compensation Scheme

Section 357A of the Code directs the state government to prepare a scheme for compensation
to the victims of crime in coordination with the central government. If the court makes any
recommendation it shall award a quantum of compensation from the district or state legal service
authority to the victims. On analyzing the scheme prepared by various states, it came to know that
the amount fixed by them is very less with the nature of the offence. For the loss of life the maximum
compensation varies between one lakh to five lakhs. In the case of Laxmi vs Union of India 322 the
court showed it distress on the schemes prepared by the state governments which provided

319 J.K. International v. State, Govt. of NCT of Delhi, Case No.: Appeal (crl.) 222 of 2001
320 The Code of Criminal Procedure, 1973
321 The Code of Criminal Procedure, 1973
322 Laxmi vs Union of India, 2014, SCC (4) 427

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inadequate amount and directed them to pay 3 lakhs after care and rehabilitation cost for the victims
of acid attack and it also ordered to pay a sum of 1 lakh to provide immediate medical assistance
within 15 days of occurrence of crime.

Restitution and assistance to the victims of crime

Section 357A(6) of the Code provides the victims immediate first aid facilities and medical
benefits free of cost on the certificate of authorization from the police officer or from magistrate or
from any other authority as it deems fit. Section 357C323 of the code imposes a liability on the hospitals
either public or private hospital to provide first aid or medical treatment for free of costs for the
offences covered under section 326A, 376, 376A- 376E of the IPC. In case failing to provide treatment
they have to face the legal consequences under section 166B of the IPC. In the case of Laxmi v. Union
of India324 the Supreme Court directed to establish Criminal Injuries Compensation Board (CICB)
under District Legal Service Authority.

Victims and judicial process

In the case Bodhisattwa Gautam v. Subhra Chakraborty325 the Supreme Court recognized the
payment of interim compensation to the crime victims.

In the case of Roy Fernandes v. State of Goa326, the court directed that the accused will attract
sentence if he fails to pay the compensation ordered.

In the case of Rudal Shah v. State of Bihar327, the Supreme Court directed state government to
award compensation for illegal embodiment of the victim for many years in the prison. By this way
the Supreme Court has recognized the compensation of the Victims of Abuse of Power.

In the case of Bhim Singh v. State of J&k328, the petitioner was illegally detained in the police
custody. Under fundamental rights under Article 21 and 22(2)329 was violated by the action of the
state. In this case the Supreme Court ordered state government to provide compensation to the
petitioner for the violation of his fundamental rights.

In the case of Nilabati Behera v. state of Orissa330 the SC ordered to pay compensation to the
mother of deceased where the deceased was killed by the police in custody. Further in the case of
State of Punjab v. Ajaib Singh 331 the SC upheld the order of the High court that even in the case of
acquittal of the accused the Court ordered to the respondent to deposit a amount of 5 lakhs to the
dependants of the victims of crime.

CONCLUSION
In India proactive judiciary played a major role in recognizing the right of the victims of
crime in criminal justice administration process. In fact judiciary marched ahead the legislature and it
was supported by 154th Law Commission Report and Malimath Committee Report which contributed
a major role in recognizing the rights of the victim of the crime and later through the amendments in
the Code of Criminal Procedure the legislation has addressed the plight of the victims and now they
are not just seen as the informants or witness of the prosecution, they have certain procedural rights.

323 The Code of Criminal Procedure, 1973

324 Laxmi vs Union of India, 2014, SCC (4) 427
325 Bodhisattwa Gautam v. Subhra Chakraborty, 1996 AIR 922
326 Roy Fernandes v. State of Goa, Criminal Appeal no. 1108 of 2002
327 Rudal Shah v. State of Bihar, (1983) 4 SCC 141
328 Bhim Singh v. State of J&k, AIR 1986 SC 494
329 Constitution of India, 1950
330 Nilabati Behera v. state of Orissa, AIR, 1993, SC 1960
331 State of Punjab v. Ajaib Singh, 1953 AIR 10

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