M R Shamshad

In a modern constitutional democracy, the criminal justice process is the responsibility of the government. This process encapsulates everything from the involvement of police to the date of registration of crime till the conclusion of a criminal trial by court. Ordinarily, in the course of a criminal case, there are three parties in the process, the accused, the victim; and the police as investigator, prosecutor and court of law, all rolled into one. The right of the victims in a crime was an issue not many were concerned with till now.

However, the Supreme Court, at least in two judgments made recently, one by Justice Adarsh Kumar Goel and the other by Justice T S Thakur, elaborately discussed the right of victims in the due course of a criminal justice process. These judgments should be duly appreciated as the Supreme Court found the need to introduce compensation as a necessary part of criminal justice process under a newly inserted provision in the Code of Criminal Procedure (CrPC). It further stated that compensation “is payable to the victim of a crime in all cases irrespective of conviction or acquittal” and “the offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependents”.

Accordingly, entitlement of monetary compensation, as part of the criminal justice process, it has become the incumbent duty of the trial court, more specifically, once the Code of Criminal Procedure has been added with Section 357A. This obligates State governments to prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents “who have suffered loss or injury as a result of crime and who require rehabilitation”. Till now, the trial courts and the High Courts have remained oblivious to provisions for monetary compensation. Recently, while concluding the Hashimpura massacre trial, despite a written request for compensation to the victims, the District Court did not pass any such directions. It instead put on record that, “It is very painful to observe that several innocent persons have been traumatized and their lives have been taken by the state agency. Nevertheless, the investigating agency, as well as the prosecution has failed to bring on record the reliable material to establish the identity of culprits”.

A ‘victim’, within general perception, is a person who has lost his life or suffered physical harm in a criminal assault. However, is it the only category in the criminal justice process that can be labelled as the “victim”? The CrPC interprets the term ‘victim’ as one who “suffered loss or injury as a result of the crime”. This definition of victim, as added in the CrPC in 2008, appears to be unmindful of the fact that the categories of potential victims are many. This restrictive meaning of a victim appears to be the outcome of a gradual and well crafted legislative process in which the intent appears to be to exclude a very large number of victims from the criminal justice process. Many of them had become victims due to the proactive action of the State machinery. However, in certain cases, the courts have not thought it appropriate to place the said victims on parity as recently the Supreme Court directed the State of Haryana, to make available monetary compensation as part of the package for the criminal justice process.

Our criminal justice process has, infrequently, seen some amount of compensation being made available to victims of a certain category like in the Uphaar cinema case, Union Carbide case etc. Although there are provisions for monetary compensation within the rule of law, they are applied rarely and selectively. The legislative intent inadvertently ends up depriving the large number of victims of the same criminal justice process. One can imagine, if an accused in a terror case has been put in judicial custody for many years, would he have the state’s utmost priority to come out clean and overcome the stigma of the criminal case. For them, to claim of monetary compensation, by taking a separate legal action, would be a remote anticipation.

In 2014, while examining the case resulting from the 2002 massacre at the Akshardham Temple, the Supreme Court recorded that “instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and imposed serious charges against them which resulted in their conviction and subsequent sentences”. The court also recorded that “neither the police officer recording the confessional statement nor the CJM followed the statutory mandate laid down in POTA”.

If this is the magnitude of victimization of innocent people, in the hands of the custodians of criminal justice process, why should those victims also not be entitled to monetary compensation, as part of the package of criminal justice process like the other victims, in addition to the initiating the action against the people who concocted the story of false criminal prosecution against innocent persons. The term ‘victim’, as defined in the CrPC, would cover the victims where the State may have failed to protect its one group of citizens from the assault committed by another group. On the other hand, the innocent people, who have to remain behind the bars and faced irretrievable harm and humiliation in the civil society, are the victims of the positive action of the state machinery.

Under such a circumstance, the victims feel alienated from the criminal justice process as the State takes on the burden of prosecution, leaving a very limited role for the victims as witnesses. In another set of facts, the victims are treated as accused till the court does not conclude the trial by declaring them innocent. That is why, in our system, the victims possess feelings of alienation and frustration. This needs to be addressed by the executive and the courts on a priority basis.

This article appeared in the Print Edition of the Millennium Post on 15th May, 2015
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