“Victimology” Revisited by Lakhimpur Kheri

Introduction

“The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.”

—Supreme Court of India in Mallikarjun Kodagali v. State of Karnataka¹

In Andrews v. Director of Public Prosecutions², Lord Atkin observed:

“There is an obvious difference in the law of man slaughter, between doing an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal.”

Victimology came into focus on the international scene in the later decades of the twentieth century. The first international symposium on victimology was held in Jerusalem in 1973 which suggested payment of compensation to victims as an integral part of the criminal justice system. Maguire and Corbett noticed the changing trend, as much more than a symbolic assurance to the victim, that the community was sorry about what had happened to him. A.S. Goldstein felt the need for redefining the role of victims in criminal prosecutions.³ The need to accomplish attitudinal changes was highlighted by Joanna Shapland (Fiefs and Peasants)⁴ and it was felt in certain quarter by that the victims should be heard on sentences⁵. But there are inherent and institutional limitations to active victim participation, as noticed in R. v. Chief Constable for Kent and Crown Prosecution Services⁶.

The Paris Penal Congress, 1895 felt that a portion of the earnings of a prisoner during detention should be paid to the victim by way of reparation. Von Hentig said:

“Payment to injured party will have a stronger inner punishment value, than payment to a neutral State. Correctional restitution would be a correctional instrument through which the criminal would understand his social responsibility.”

Internationally, the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, which was adopted vide the United Nations General Assembly Resolution 40/34, was a landmark in boosting the pro victim movement. The Declaration defined a “victim” as someone who has suffered harm, physical or mental injury, emotional suffering, economic loss, impairment of fundamental rights through acts or omissions that are in violation of criminal laws operative within a State, regardless of whether the perpetrator is identified, apprehended, prosecuted, or convicted, and regardless of the familial relationship between the perpetrator and the “victim”.

Other international bodies, such as the European Union, also took great strides in granting and protecting the rights of “victims” through various Covenants. Amongst other nations, the United States of America has also made two enactments on the subject i.e. (1) the Victims of Crime Act, 1984 under which legal assistance is granted to the crime victims; and (2) the Victims’ Rights and Restitution Act of 1990. This was followed by meaningful amendments, repeal, and insertion of new provisions in both the statutes through an Act passed by the House of Representatives as well as the Senate. In Australia, the legislature has enacted the South Australia Victims of Crime Act, 2001. In Canada, there is the Canadian Victims Bill of Rights.

In India, Section 357⁷ CrPC and Section 5⁸ of the Probation of Offenders Act, 1958⁹ are powerful legislative devices to ensure justice to victims. Section 357 CrPC enables the court to award compensation. In addition to fine, which in certain cases is limited, Section 5 of the Probation of Offenders Act provides for atonement of his wrong.

In Hari Singh v. Sukhbhir Singh¹⁰, the Supreme Court awarded compensation of Rs 50,000 to the victim, whose power of speech was impaired as a result of the injury suffered by him, observing:

“… It is a measure of responding appropriately to crime as well as reconciling the victim with the offender…. We therefore recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.”

Recent amendments to the CrPC have recognised a victim’s rights in the Indian criminal justice system. A Committee on the Reforms of Criminal Justice System in its Report in 2003, suggested ways and means to develop a cohesive system in which all parts are to work in coordination to achieve the common goal of restoring the lost confidence of the people in the criminal justice system. The Committee recommended the rights of the victim or his/her legal representative “to be impleaded as a party in every criminal proceeding where the charges punishable with seven years’ imprisonment or more.” It is pertinent to mention that the legislature has thoughtfully given a wide and expansive meaning to the expression “victim” which “means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir.”

The abovestated enunciations are not to be conflated with certain statutory provisions, such as those present in special Acts like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989¹¹, where there is a legal obligation to hear the victim at the time of granting bail.

Let us now go through some milestone judgments of the Supreme Court pertaining “victimology”:

The Supreme Court of India as early as on 3-10-1979 in Rattan Singh v. State of Punjab¹² through the words of V.R. Krishna Iyer and P.N. Singhal, JJ. in para 6 of the judgment had touched upon the topic “victimology”, opining that victims of the crime do not attract the attention of the law. Victim’s reparation is still the vanishing point of criminal law in India, held the Court.

On 17-2-2012, the Supreme Court in Labh Singh v. State of Haryana¹³ speaking through Dipak Misra, J. held, it is not exclusive right of accused but is a collective requirement of society and victim is also entitled to it. One cannot afford to treat the victim as an alien or a total stranger to the criminal trial. Criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context (paras 60, 62 and 64). A-1 was more than 82 years in age, A-2 and A-3 were 72 and 62 years in age, respectively. They had already undergone part of the sentence. The incident was 27 years old. Thus, sending them to jail after a lapse of about 27 years in the facts and circumstances of the case would not be justified. Each of the appellants was directed to pay Rs 1 lakh to the injured persons within two weeks. Vide Sections 357 and 357-A¹⁴ compensation was awarded to the victims, with a reduced jail term for the appellants.

In Lakhan v. State of M.P.¹⁵ on 5-12-2012, the sentence awarded by courts below for offence punishable under Section 308¹⁶ r/w Section 149¹⁷ IPC was modified by reducing the same from three years RI to one year’s RI and enhancing fine amount from Rs 500 to Rs 25,000 each with default imprisonment for six months; all sentences to run concurrently. The amount of fine so deposited was directed to be distributed equally to each one of the injured victims.

On 3-5-2013, the Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra¹⁸ held mandatory duty of criminal court to apply its mind to question of awarding compensation in every case. The power is not ancillary to other sentences but in addition thereto. Use of word “may” in Section 357 CrPC held, does not mean that court need not consider applicability of Section 357 in every criminal case. The court must also disclose that it has applied its mind to such a question by recording reasons for awarding/refusing grant of compensation.

On 3-5-2013, another two-Judge Bench of the Supreme Court in Mohd Ishaque v. State of W.B.¹⁹ speaking through K.S. Radhakrishnan, J. on Section 357 CrPC held that half of the money recovered as fine is to be paid to the wife of the deceased as compensation.

In Swarn Kaur v. Gurmukh Singh²⁰, the Supreme Court ordered each of the accused to deposit the fine amount within three months failing which they would suffer imprisonment for a further period of one year. Out of the fine amount, the appellant son and wife of the victim shall be paid a sum of Rs 2 lakhs.

On 4-7-2014, the Supreme Court while deciding State v. Sanjiv Bhalla²¹ held that while awarding compensation to victims, exercise of discretionary power by application of mind is necessary and reasons for decision must be recorded.

On 9-10-2014 the Chief Justice’s Bench of three-Judges in Mofil Khan v. State of Jharkhand²² observed:

“On the consideration of rights of victims and incidental victims like family and co-sufferers, the judiciary has a paramount duty to safeguard the right of the victims as diligently as those of the perpetrators and the society too is an incidental victim of crime.”

On 6-10-2015, the Supreme Court in Satya Pal Singh v. State of M.P.²³ held that under Section 372 proviso²⁴ read with Sections 378(3)²⁵ and 2(wa)²⁶ CrPC, legal heir of deceased falls within definition of “victim” and has locus standi to prefer appeal before High Court against order acquitting accused or convicting him/her of lesser offence or imposing inadequate compensation passed by trial court. The Court explained the object of victim-oriented approach to the statutory right conferred upon the victim.

On 2-12-2015, a five-Judge Bench of the Supreme Court headed by then Chief Justice in Union of India v. V. Sriharan²⁷ considered Article 21²⁸ of the Constitution of India’s “procedure established by law” and held that the punishment imposed in accordance with law does not in any way violate Article 21. Moreover, CrPC has sufficient guarantees and protection at the sentencing stage.

On 10-8-2018, a three-Judge Bench of the Supreme Court in Nipun Saxena v. Union of India²⁹ directed the Committee preparing victim compensation scheme for women to make similar scheme for compensation for sexual assault on children.

In Mallikarjun Kodagali v. State of Karnataka³⁰ (“Mallikarjun Kodagali”), the Supreme Court went into the scope of Articles 14³¹ and 21 of the Constitution and the victims’ rights to safety and crime/cybercrimes/police protection/bodily integrity. Steps like victim impact statement, victim impact assessment, must be given due recognition so that appropriate punishment is awarded to the convict. Right of victim as per Section 372 proviso (introduced w.e.f. 31-12-2009) and Sections 2(wa), 2(d) and 378, “nature”, “scope” and “applicability” being,

(1) a substantive right;

(2) available against orders of acquittal rendered after 31-12-2009; and

(3) for exercising which right, no leave is required to be sought.

There is victimisation of the victim of crime both prior to the trial and during the trial. There is a need to balance the rights of the victim with the rights of the accused. Both legislature and judiciary have addressed the rights of victim. But a lot remains to be done. What follows in a trial is often secondary victimisation through repeated appearances in court in a hostile or semi-hostile environment in the courtroom. Today, the rights of an accused far outweigh the rights of the victim in many respects. The courts have provided solace to the victim with monetary compensation. But that is not enough. The courts have done and are continuing to do their best for the victims of crime (para 3).

Reports and recommendations of Law Commission and amendment to Section 372

In recent times, four reports have dealt with the rights of crime and the remedies available to them. The 1st Report³² discusses issues of victims of crime, compensation to be paid to the victim and rehabilitation of the victim including the establishment of a victim assistance fund (Mallikarjun Kodagali³³ para 14). The 2nd Report³⁴ recommended that a 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 the substantive chapter on justice to victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered (Mallikarjun Kodagali³⁵, paras 15 and 16). The 3rd Report³⁶ suggested that a victim should be impleaded in the trial proceedings (Mallikarjun Kodagali³⁷, para 19). The 4th Report³⁸ recommended that against an order of acquittal passed by a Magistrate, a victim should be entitled to file an appeal before the Revisional Court. It was also recommended that in complaint cases also an appeal should be provided in the Sessions Court instead of the High Courts (Mallikarjun Kodagali³⁹, para 20). It is apparently, on the basis of the four reports and other material that Section 372 CrPC was amended on 30-12-2009, w.e.f. 31-12-2009 (Mallikarjun Kodagali⁴⁰, para 21).

On 15-3-2019, while deciding State of H.P. v. Vijay Kumar⁴¹ adequacy of sentence and compensation to victim of acid attack was dealt with by the Supreme Court, in this case. Both the accused were directed to pay Rs 1.5 lakhs each as additional compensation to the victim in addition to Rs 25,000 already paid by each of them. The State was ordered to pay further compensation as admissible under the victim compensation scheme.

On 22-4-2019, while delivering the judgment in Kumar Ghimirey v. State of Sikkim⁴²dealing with the Protection of Children from Sexual Offences Act, 2012⁴³ (POCSO Act), the Supreme Court dealt with the sustainability of plea in reduction of sentence under Sections 9⁴⁴, 10⁴⁵ and 5(m)⁴⁶/6⁴⁷, holding that the offence committed against the minor girl child of 7 years in age cannot be viewed lightly.

On 5-7-2019 in Naval Kishore Mishra v. State of U.P.⁴⁸, the Court under Section 2(wa) CrPC held the plight of the deceased being unmarried and victim being real brother thus would fall under the category of legal heir of deceased (paras 6 and 7). Under Section 372 proviso read with Section 378, the appeal against acquittal by victim, held, has to be dealt with as a regular appeal after insertion of Section 372 proviso (w.e.f. 31-12-2009). Rejection of leave to file appeal is irrelevant for maintainability of appeal of victim, after the said amendment.

In Alarming Rise in the Number of Reported Child Rape incidents, In re⁴⁹, on 1-8-2019, while dealing with this suo motu writ petition in child rape cases under Articles 21 and 32⁵⁰ of the Constitution, the Supreme Court directed appropriate medical treatment, interim compensation of Rs 25 lakhs and security to the victim and family members. Frontiers of this suo motu action was expanded to include victim compensation, protection, witness protection and other connected issues.

On 3-10-2019, a three-Judge Bench of the Supreme Court, while deciding Ravi v. State of Maharashtra⁵¹, under Article 21 of the Constitution observed that in imposition of the sentence, of great importance is the standpoint of a “victim” which includes his/her guardian or legal heirs as defined in Section 2(wa) CrPC.

On 20-11-2019, the Supreme Court in Rekha Murarka v. State of W.B.⁵², while clarifying the law under Sections 301⁵³ and 225⁵⁴ read with Section 24(8) proviso and Section 311 CrPC on the extent of right of victim’s counsel to assist the prosecution, held, the same is not restricted only to assisting Special Public Prosecutors rather, assistance given by the victim’s counsel is meant to be given to the prosecution in general, regardless of who exactly is leading it and further held that extent of assistance of victim’s counsel to the Public Prosecutor and manner of giving it would depend on the facts and circumstances of each case (paras 7 to 12 ).

It is in this context that the judgment of the Chief Justice’s Bench of the Supreme Court on 18-4-2022 in Jagjeet Singh v. Ashish Mishra⁵⁵, popularly known as the Lakhimpur Kheri case, is to be viewed. In holding that the victim of a crime ought to be heard at all stages of a trial, the Supreme Court judgment is cause for celebration for victim rights’ advocates. While denying bail to Ashish Mishra, the Court made sharp remarks legitimising the claims of victim to participate in the criminal justice process. In this case the Supreme Court cancelled the bail granted by the High Court of Allahabad stating that denial of victims’ right to participate in the proceedings and irrelevant consideration cannot be approved. The challenge was laid on an order dated 10-2-2022 passed by the Lucknow Bench of the High Court of Allahabad, whereby Respondent 1 has been enlarged on bail in a case under Sections 147⁵⁶, 148⁵⁷, 149⁵⁸, 302⁵⁹, 307⁶⁰, 326⁶¹ r/w Sections 34⁶² and 120-B⁶³ IPC as well as Sections 3⁶⁴, 25⁶⁵ and 30⁶⁶ of the Arms Act, 1959⁶⁷.

On behalf of the appellants, it was vehemently contended that the High Court had erred in overlooking several important aspects, and instead placed undue weightage on issues such as the absence of any firearm injury. It was pointed out that the complainant/victims were disconnected and were not heard by the High Court. It was stated that their application for rehearing the bail application was also not considered by the High Court. On the other hand, it was argued that the respondent-accused was never in the Thar vehicle and was instead at the Dangal venue. The counsel for Respondent 2, i.e. State of Uttar Pradesh argued that a bail hearing should not be converted into a mini trial. It was highlighted that the State Government, under the ambit of the Witness Protection Scheme, 2018, had provided adequate security, including armed personnel, to all the “victims” and witnesses.

The Supreme Court pointed out that the following questions fall for consideration:

A. Whether a “victim” as defined under Section 2(wa) CrPC, 1973 is entitled to be heard at the stage of adjudication of bail application of an accused?

B. Whether the High Court overlooked the relevant considerations while passing the impugned order granting bail to the respondent-accused?

C. If so, whether the High Court’s order dated 10-2-2022 is palpably illegal and warrants interference by this Court?

First, the victim as defined in Section 2(wa) CrPC becomes a victim only after an accused has been charged with the offence. The judgment overcomes this bar to provide the victim with the right to be recognised as a victim immediately after the occurrence of the offence.

Second, a victim not being a complainant, has been deterred from several substantive pre-trial rights under CrPC including the right to approach the superior police officer in case of a refusal to register an FIR, the right to be informed about the progress of the investigation or the decision not to investigate, and the right to be informed on the filing of the final/closure report. The judgment states that the complainant and victim are two different entities in the law, but simultaneously states that the victim has “unbridled participatory rights” right from the stage of the investigation, which means the victim must have all rights that a complainant has, and much more.

Third, the Court observed that the participatory rights of the victim extend all the way to the stage of appeal or revision.

These observations have the effect of securing a gamut of rights for the victim at the trial stage including the right to be informed of the proceedings, the right to protection, the right to speedy justice, the right to present arguments and written submissions, the right to examine witnesses, the right to be heard at sentencing and the right to be compensated and restituted.

The best way to tackle the challenges is to give legislative recognition to the principle of participation which has received the judicial stamp of approval. There is an urgent need to amend the CrPC in order to facilitate the recognition of victim rights and to create a statutory framework enabling the same.