ABSTRACT MAINSTREAMING THE VICTIMS OF CRIME AND THE WITNESSES TO IT
The Rule of law, pillars of democracy, evolution and enforcement of basic inherent human rights are determined by the fortification of the criminal justice system. The objectives of the criminal justice are curbing nefarious activities, maintenance of public order and peace, protection of the rights of victims’ as well as persons in conflict with law, punishment and rehabilitation of those adjudged guilty of committing of crimes and generally protection of life and property against crime and criminality. It is considered the primary obligation of the state under the Constitution of India. This Research article presents an elaborate and exhaustive study and analysis of the rights guaranteed to the victims of nefarious activities under the criminal justice system of India. Indian system of criminal justice is an emulation of the British model. The penal philosophy in India has accepted the concepts of prevention of crime and treatment and rehabilitation of criminals, which have been reiterated by many judgments of the Supreme Court. Victims are barely granted any rights under the criminal justice system, and the state undertakes the full responsibility to prosecute and punish the offenders by treating the victims as mere witnesses. The researcher in the later part of the research article makes an attempt to throw light on the first ever witness protection scheme approved by the Supreme court in the year 2018 in response to several PILs seeking protection of witnesses. Conclusively the paper seeks to analyse the nitty-gritty nuances of the criminal justice system with an emphasis on the rights of victims, victim’s compensation scheme in India and the protection of witnesses to crime under the penal system.
Keywords: Witness protection scheme, Rights of Victims, Criminal justice system, Right to restitution, victim compensation scheme.
1 INTRODUCTION:
“It is a weakness of our jurisprudence that the victims of the crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system which must be rectified by the legislature we can only draw attention in this matter.”[1]
-Justice Krishna Iyer
It is the victim who onsets the motion of the criminal justice system by means of filing of a plaint pertaining to the injustice meted out to him. The victim is the star witness of a crime but it is pitiable how Indian penal laws are nowhere victim oriented but accused oriented. Even in the grundnormi.e. the constitution of India in the Article 22 which lays down provisions pertaining to the rights of a person arrested and detained post being found guilty of an offence. Alas! But there is no such explicit provision for the victims for the rescue, rehabilitation and reparation. “Tears shed for the accused are traditional and trendy but has the law none for the victim ofcrime, the unknown martyrs?”[2] The words of Justice VK Krishna Iyer are befitted to aptly describe the plight of the victims in the criminal justice system in our country. Ironically despite being the star witness to the crime and the setter of the wheel of justice has barely any legal rights to be informed, present and heard within the criminal justice system. The victims are kept in dark regarding the ongoing court proceedings, the arrest or the release of the accused. The victims are bereft of the right to attend the proceeding of trials and they have no right to testify in the sentencing of court hearing process. Basically, the victim assistance programs are virtually inert or to be precise non-existent.
The term ‘criminal justice system’ relates to such agencies under the government who are assigned the duty of implementing the law, adjudicating crimes and rectifying criminal behaviour. They are regarded as an instrument for maintaining social control and their responsibility is to thwart societal behaviours that seem to be perilous by detaining and penalizing offenders or by averting the chances of such occurrence in future. The power of controlling crimes i.e. legal misbehaviour and penalizing criminal lies only in the hand of criminal system and other forms of communal control i.e. schools, churches, families deal with the moral misconduct. Hence, the objectives of criminal justice system are:
- To avert the crimes from occurring.
- To penalize offenders for the committing a crime.
- To rehabilitate the offenders of crime.
- To preserve tranquillity in the society.
- To prevent offenders of a crime to commit other offence in the future.
The drafting of the justice system has been done in such a way that it is more accused-oriented than victim-oriented and focuses on punishing and reforming the criminals, however, fails to take into consideration the corollary i.e. victims which can be considered as a loophole in our criminal jurisprudence. The pitiable victims are left unnoticed in mistaken empathy for the criminal. Their interests are not recognized by the state. The hypocrisy of our justice system is that the victims have become a “forgotten identity”. They are the one who place wheels to the justice system by providing information to the state agencies, in the absence of which the justice system would totally disintegrate. Hence, the responsibility falls upon the Courts to ascertain victim’s rights.
Although, there are legal provisions that exist for providing relief to the victims, there proper utilization is not made. The Court has been authorized to provide compensation to victims of crime, however, such authority is not liberally exercised. After observing such scenario, the Supreme Court in Hari Krishnan and State of Haryana v.Sukhbir Singh[3] judgement, addressed the matter and laid directions for the courts to make liberal use of Article 357 and provide appropriate redress to victims, specifically where there has been “an acquittal of victim on admonition, probation or when parties enter into compromise”[4].
It can be unequivocally apprehended that the apex court in consonance with myriad High Courts of the state fortified the rights of the grief stricken victim by invoking Article 21-a sine qua non of the golden triangle of fundamental rights which ensured a right to life and livelihood with dignity to the victims of a crime thus curbing the illegal detention of the aggrieved at the hands of the executive”.
WHO IS A VICTIM?
Victims has been described as “any person who, individually or collectively have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member States, including those laws prescribing criminal abuse of power”[5].
According to the Article 2 of the same declaration by the UN it is stated that a person falls under the ambit of the term “VICTIM” irrespective of the fact whether the “perpetrator is identified, apprehended, prosecuted or convicted and regardless of the fiduciary relationship between the perpetrator and the victim. The term “VICTIM” is also inclusive of the immediate kith and kin or dependants of the direct victim and persons who have been subjected to any torment in the due course of intervention to assist the victims in distress or to curb victimisation and victim oppression”.
According to Section 2(wa) of the Criminal Procedure Code, 1973 a “victim” is“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 includes within the term his or her legal guardian or legal heir. This was inserted into the Crpc only post the code of criminal procedure (amendment) act, 2008.
- PRO VICTIM PROVISIONS UNDER THE AEGIS OF THE CRIMINAL LAW SYSTEM OF INDIA
The Indian Constitution and Code of Criminal procedure, 1973 are an active proponents of the principle of victim compensation. Although, the Constitution does not explicitly mention any such provision for victims, new seed of societal order were laid by group of articles dealing with Fundamental rights and Directive Principles of State Policy.
Article 41 and Article 51 A provide that it is the duty of the State “to secure the right to public assistance in cases of disablement and in other cases of undeserved want” and “to have compassion for living creatures” and “to develop humanism”. These articles have been subjected to an expansive interpretation to include victims. The right to receive compensation has been construed as vital under Article 21 of the Indian Constitution which guarantees right to life and personal liberty.
In Rudul Shah v. State of Bihar[6], the Apex Court observed that in case of illegal detention, the petitioner has right to claim compensation and in the present case, the petitioner was awarded a total of thirty-five thousand rupees.
“Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of the Court were limited to passing orders of relief from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mullet its violators in the payment of monetary compensation”[7].
The Apex Court has reiterated the same order stating compensation to be an integral feature of right to life[8].
Section 250 of CrPCgives power to the magistrates to give direction to complainants to pay compensation to other person who has been accused of crime by them in the absence of any sufficient reason. Section 358 of the same Code, authorizes the Court to award compensation to such persons who have been wrongfully arrested by police officer on the demand of other.
Section 357 empowers the Court to order compensation to the victim and payment of costs of prosecution in cases where a sentence has been imposed by the Courts. Section 357 A was inserted in 2009 to bring into effect the Victim Compensation Scheme.It tries to reply to instantaneous requirements of first aid, medical relief or interim relief. The authority of deciding the compensation amount under the scheme lies with “District Legal Service Authority or State Legal Service Authority”, subjected to maximum limit as prescribed by the State. The scheme paved way for “an institutionalized payment of compensation to victim by the state for any loss or injury caused to him by offender”[9].The VCS applies to circumstances where the compensation paid by the accused is insufficient or no compensation is payable in case of acquittal, discharge or non-trace or identification of the accused. The magistrate has been vested with the power to impose fine, where it has not been imposed[10]. However, it lies upon the discretion of the sentencing court and is paid through the fine collected. Section 357 has certain limitations attached to it:
- The section is applicable only in cases of conviction of the accused.
- When fine is included in the sentence, subjection is on its recovery from accused.
- Wherein the fine has not been inflicted as a part of sentence, the magistrate shall have the discretion to order any amount to be paid as compensation for the losses or injuries suffered
- While deciding the amount to be paid as compensation, the magistrate has to take into consideration the capability of the accused to pay.
The expenses have to be refunded to prosecution in filing of the complaint, where the accused has been convicted for a non-cognizable offence.[11] However, these provisions are in an infrequent and incoherent manner utilized by the Courts.
The 152nd Law Commission Report had made recommendations under 357-A for introducing compensation during the instance of sentence to victims of crime which shall sum to 25,000 rupees where bodily injury has been sustained, not resulting in demise and 1,00,000 rupees in case of death. Though the recommendations were not included by the agencies but the inclusion of 357-A was made mandatory.
In NilabatiBehra v. State of Orissa[12], the Supreme Court observed “it was not enough to relegate the heirs of victims of custodial deaths to the ordinary remedy of civil suit”. It was overtly identified that the victims have right to claim relief from public legal courts who exercise writ jurisdiction.
“When an accused is released on probation or admonition, the Court may order the offender to pay compensation and cost to victim”[13].
- RIGHTS CONFERRED ON VICTIMS
- THE RIGHT TO SPEEDY TRIAL:
The victims of have the right to receive a fair and “speedy trial” or “disposition of the case, free from unreasonable delay”. In realistic sense, the right of having a speedy trial has limitations on continuances i.e. court-ordered delay in proceedings. However, while passing such orders, the court must think aboutthe consequences of the tardiness on victim. In the landmark judgement in the case of HussainaraKhatoon v. State of Bihar[14] observed Right to a fair and speedy trial is a fundamental right of a prisoner or accused of delayed trial under Article 21. This right to a fair and speedy trial guaranteed under Article 21 will also do justice with the victim as well.
3.2 THE RIGHT TO REMEDIES:
The law of remedy is based on the latin maxim “Ubi Jus IbiRemedium” meaning “Wherever there is right, there is a remedy”. Since, rights have been given to victims, there is a necessity to ensure that proper enforcement of such rights is made. The victims must have “legal standing” or the locus standi to affirm their right and such legal standing must be automatic and provided by statute or through the ruling of court.
In certain cases, a victim may be permitted to seek writ of mandamus or an order giving direction to agencies to courts to comply with the law can be given by the court.
- RIGHT TO ENGAGE AN ADVOCATE FOR SUPPORTING THE PROSECUTION:
“The Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section”. The victim being at par with the accused should be vested with the right to be represented adequately by an advocate of his choice and in case he is unable to do so then it is the obligation of the state to make arrangements for the same. Even the Indian constitution guarantees free justice and the right to free legal aid under Article 39A of The Constitution of India. The Article 39A of Indian Constitution obliges the state to ensure equal justice and to make availability for free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Thus, the victim should be provided adequate legal representation.
- RIGHT TO RESTITUTION:
Under a criminal justice system, ‘Restitution’ refers to payment given by the wrongdoer to the victim for injuries caused due to his act. It should take into consideration “out-of-pocket losses” which are directly connected to crime and have affected the victim. It may include: medical expenses, therapy costs, charges of prescription, damaged property.
However, it shall not take into consideration the mental suffering, misery or emotional grief. The advantage of proper execution of Restitution would be that a greater liability would be imposed on the offender.
For evaluating the restitution, the losses undergone by the victim shall be measured. In India, nearly in 1/3rd states, Courts are needed to order restitution to victims, and if they fail to do so, the Courts are bound to specify the reason for such failure on record. “Payment of restitution is often a condition of probation or parole as well”.
Restitution can be ordered to direct victims as well as State victim compensation board of a crime, in case, they have bearded the expenses for victims in the past. Section 357 has made it compulsory for states to prepare scheme to redress the victim for injury or loss caused by the crime. However, such restitution lacks implementation and till date, only some states have formulated a scheme under Section 357 A.
- VICTIMS OF CUSTODIAN CRIMES
The constitutional and legal right of an aggrieved in custodian torture and crimes to receive compensation was reiterated by the apex court in the monumental case of NilabatiBehera v. State of Orissa[15]. It was adjudicated that mere exacerbation of the successors of a victim of custodian torture to the ordinary remedy of a civil suit is not enough. The right to seek indemnification by means of compensation in public law from courts in furtherance of the exercise of their writ jurisdiction under article 32 for the Supreme Court and article 226 for the high court was explicitly recognised in the above cited case. The very essence of this judgement relating to the right to relief of the victim by means of reparation was further opined in the case ofD.K Basu v. State of West Bengal[16] where it was laid down that “the award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the state…the relief to redress the wrong for the established invasion of the fundamental rights of the citizen under the public law jurisdiction is thus in addition to the traditional remedies and not in derogation of them”.[17]
- RIGHTS OF VICTIMS OF WRONGFUL PROSECUTION AND STATE’S OBLIGATION TOWARDS THEM
The Indian criminal justice system is rested on the principle “Fiat Justitia ruatcaelum” meaning “Let justice be done though the heavens fall”. Despite the solid foundation of the pillar of justice there have been numerous instances of wrongful prosecution encompassed with mala-fide intention compelling the individual to live under social stigma. In addition to it the deficiency of statutory provisions or state mechanisms for rehabilitation, restoration and reparation to such victims and their family members aggravates their agony. The Indian courts have time and again expressed their concerns regarded the dilapidated and pitiable condition of under trial prisonersand to certain extent compensated the victims of wrongful prosecution, detention and conviction, but there is not yet at one’s disposal an uniform mechanism to ensure justice and remedy in all such instances of “miscarriage of justice”[18] in India in form of wrongful prosecution
The grievance redress of a victim should be the utmost priority of machinery of the States, therefore, it is incumbent upon the state to ensure reparation and restitution to the victim by means of pecuniary compensation. In India, also there are a plethora of provisions governing the compensation to victims of crime such as sections 357, 357(1), 357(2), 357(3), 357(A), 358, 359 and 250 of the Criminal Procedure code,1973. The Grundnormi.e. the Indian constitution also provides for certain privileges to curb the prolonged suffering of the victim. Article 14 and article 21 guaranteeing Right to equality and Right to life respectively endorses the idea of curbing a victim’s oppression and perpetual depression.
- JUDICIAL PERSPECTIVE ON A VICTIM’S RIGHT TO COMPENSATION
The criminal courts are empowered with the authority to award unlimited amount of compensation to the victims in order to indemnify him at the time of adjudicating a conviction under section 357(3) of the CrPC. This provision is not ancillary to other provisions of CrPC but in addition thereto.
In the judgement of Hari Kisan’s case[19] the Apex Court awarded a compensation of Rs 50,000 to the aggrieved party along with which it also issued directions to the lower criminal courts to liberalise the mechanism of granting compensation to the victims in order to avoid hassle in the form constant rush to the civil courts for compensation to the victims. The UN general assembly recommends pecuniary compensation to be awarded on behalf of the state in case of deficiency of resources with the offender.
Unfortunately, due to certain loopholes in the justice system the victims of communal riots, dacoity, arson and rape are bereft of compensation. The state is obliged implicitly under article 21 of Indian constitution to compensate the victims of offences irrespective of the conviction or acquittal of the culprit during the trial.
As a blow to rights of victims the right to compensation and reparation to a victim of a crime in order to redress his grievance has not been explicitly or implicitly institutionalised or conceptualised under the Indian Penal laws. There exists no legal or constitutional right in the statute book favouring the victim’s right to compensation and grievance redress in India.
In the Rudal Shah vs. State of Bihar case[20], the Apex Court lucidly adjudicated that “the higher court is empowered to award compensation to the victim for grievance redress through the exercise of its writ jurisdiction in case of infringement and abridging of fundamental rights of an individual and enunciated the principle of compensatory justice in the annals of human rights jurisprudence”.
In the case of Oraon v. State of Bihar[21] directions were given by the Supreme Court to the state of Bihar to award compensation of Rs.15,000 to BhamaOraon who had been in an illegal detention for six years in a mental hospital despite his ameliorated mental condition and recovery. In Sebastain v. Union of India[22] the court gave directions to the state to award 1,00,000 rupees as compensation the wife of each detenu subjected to illegal detention as a result of filing of habeas corpus writ petition by the wife in the court of law.
In the monumental case of DK Basu v. State of West Bengal[23] the Supreme Court formulated certain guidelines to curb custodial torture and violence inclusive of rape by police officials in addition to the recognition to custodial rape as a subject matter of compensation as it abridges one’s right to life with dignity under article 21 of the Indian Constitution. In the case of Bodhisattwa Gautam vs. Subhra Chakraborty[24], the apex court adjudicated that the sessions court is authorised enough to award interim compensation to the victim of a crime provided a case against the accused has been established that he had a sexual relationship with the prosecutrix on false assurance of marriage. In the above mentioned case the court directed the guilty to pay a sum of Rs1000 as interim maintenance to the aggrieved. This judgement is viewed as a precedent for granting interim compensation to the rape victims.
In the case of Maharashtra v. Madhukar N. Maridkar[25] the Supreme Court duly recognised the right to privacy of a prostitute inferred under the ambit of article 21 of the Indian constitution and observed that a prostitute cannot be raped merely due to the conventional presumption of the society branding her as promiscuous woman with loose moral.
Furthermore, in a current remarkablejudgment the Supreme Court adjudicated that the victim of an offence is entitled to appeal challenging the exoneration or acquittal of the accused without prior nod of the appellate court, Justice Madan B. Lokur remarked that section 372 of CrPC dealing with the provision of appeals in criminal cases has to be given a realistic, liberal and progressive interpretation and approach to benefit the victim of an offence. The major portion of the verdict castigated and rebuked the parliament, judiciary and the civil society for being callous towards the rights of victims by giving it sporadic attention.
- PIVOTAL ROLE OF A WITNESS VIS-A-VIS THE WITNESS PROTECTION SCHEME OF 2018
In the words of eminent jurist Jeremy Bentham “Witnesses are the eyes and ears of justice.” In a criminal justice system the victim plays a pivotal role is sine-qua-non considering his paramount in setting the wheel of justice in motion. Where the victim is one wheel of the chariot of justice, the witness is the other indispensable wheel of the chariot of justice. Both the wheels are of paramount significance in the motion of the chariot of justice and the witness contrary to views of a layman never becomes redundant in the due functioning of the criminal justice system. For it is the witness whose testimony and evidences ensures free, fair trial to the aggrieved. In the words of Wadwa J. “A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required, whether it is direct evidence or circumstantial evidence.”
The insights, inputs or testimony is the torchbearer of justice for the victim at the time of trial as the conviction or acquittal of the accused primarily rests on the testimony of the witness who serves as the eyes and ears of justice at the point. Hence, it is prima facie an exigent duty of the state or similar authorities per se to protect these eyes and ears of justice from the wrath of extraneous factors that are capable of diluting or all totally altering the stance of the victim resulting in him turning hostile.
7.1 DEFINITION OF “WITNESS”
The term “Witness”has nowhere been defined or explained either in the Code of Criminal Procedure, 1908 or in the Indian Evidence Act,1872. The Black’s law Dictionary defines the term “WITNESS” as: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction”.
Further, The Witness Protection Scheme, 2018 defines a “witness” as: “Witness means any person, who possesses information or document about any crime regarded by the competent authority as being material to any criminal proceedings and who has made a statement, or has given or agreed or is required to give evidence in relation to such proceeding”.
The witness protection scheme approved and implemented by the Supreme Court in the year 2018 in response to myriad PILs seeking protection of witnesses from extraneous wrath and hostility, might be India’s maiden witness protection scheme incorporated and formally institutionalized into the Indian legal system but the seeds of the concept of witness protection was sown way back in the early 2000s in the form of recommendations made by Justice V. Malimath Committee in 2003 and that made by the 198th Law Commission report in 2006 which sought for a draft of witness protection law.In 2003 Justice V Malimath Committee on criminal justice system in its voluminous and exhaustive list of recommendations and suggestions had recommended enactment and enforcement of a separate witness protection law.
Even there exists a witness protection scheme in the state of New Delhi since 2015 much ahead of the Pan India witness protection scheme approved in the year 2018. The Delhi State Legal services authority (DSLSA) pass the protection orders in each case post a thorough examination of the veracity of threat to the witness. The Commissioner of Delhi police was made responsible for the overall implementation of the witness protection orders. The protection measures could include armed police protection, regular patrolling around the witnesses’ house, installing closed circuit television cameras in the location etc.
- THE WITNESS PROTECTION SCHEME IN 2018
On December 6th, 2018, the draft of the witness protection scheme was approved by the apex court which was prepared after exhaustive inputs from 18 states or union territories in consonance with recommendations from police personnel, judges and civil society which was finalized by the National Legal Services Authority (NALSA). The rights of the witness to testify as the eyes and ears of justice (in the words of Jeremy Bentham) under article 21 of the constitution, was recognized by the bench consisting of Justice A.K. Sikri, Justice S Abdul Nazeer.
It was collectively opined and stated: “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Indian Constitution.”
The bench directed the centre, states and the union territories to enforce the scheme “in letter and spirit”. The court observed that it shall have the force of law under article 141 and article 142 of the Indian constitution until the enactment of a suitable parliamentary or state legislature on the subject. Article 141 stipulates that the decision of the Supreme Court would be incumbent upon the other courts in India. Thereby, meaning that the case decided by the Supreme Court will attain finality and would be treated as binding for future decisions by other courts in India.
7.3 THE EXIGENT NEED OF SUCH A SCHEME
“The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favor, without intimidation or allurements in the court of law. If witnesses are deposing under fear or intimidation or for favor, allurement, the foundation of administration of justice not only gets weakened, but it may even get obliterated.”[26]
As discussed earlier the witness is a sine-qua-non in the criminal justice system and plays a pivotal role in setting the wheel of justice in motion, recalling thewords of Jeremy Bentham “The witnesses are the eyes and ears of justice.” It becomes exigent to devise a scheme for the protection of them from extraneous wrath in form of threats,hostility, abhorrence etc. The witnesses often turn hostile thus completely changing their stance or retractingtheir original statements or abscond because of grave extraneous threat, intimidation, threat to life, property etc. The state of the victim further exacerbates and his sorrow is aggravated when the realization of the deficiency of a legal protocol calling for the protection of witness strikes him.
In a democracy the pillars of justice, human rights and rule of law entitles the witness to protection and safety as the dilution of a witness’s stance out of fear and intimidation defeats the purpose of the criminal justice system. So, there exists an exigent need of a fortified witness protection scheme devoid of loopholes to perpetuate the legacy of justice in a welfare country.
The exigent need of a witness protection scheme in India is enshrined in the case of ZahiraHabibulla H. Sheikh and Anothers v. State of Gujarat[27]wherein the court while defining “free trial” opined that: “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial.” The apex court further in the case of State of Gujarat v. Anirudh Singh[28]stated: “It is salutary duty of every witness who has the knowledge of the commission of the crime, to assist the state in giving evidence.”
The need for the scheme has been envisaged in the recommendations of various reports of law commission (preferably 198th), recommendations by the Malimath Committee. The 172th report of law commission inspired tremendously from the judgement of the court in Sakshi v. Union of India[29]which endorsed in camera trials to distance the victim safely from the accused in order to ensure a fair testimony devoid of fear and the 178th report of the law commission of India emphasized on the protection of witness from the extraneous wrath of the accused.
The victim is the key or star witness of a crime the protection of witness in a criminal justice system can be deemed to be synonymous to the protection of victim. The “Declaration of Basic Principles of Justice for victims of crime and abuse of power”adopted by the United Nations General Assembly in November, 1985 also furthered this notion and endorsed the victim as an indispensable witness to a crime and propounded four objectives namely “a) Access to justice and fair treatment, b) Restitution, c) Compensation, d) Assistance to ensure their safety”.
7.4 THE INSTANCES OF AGGRAVATED THREAT TO THE WITNESS
1) It was the AsaramBapu – a self- styled godman’s case that captured the attention of the nation to the turmoil of the victims who are perpetually at a risk of loss of life or other injury. It was the PIL filed in this case by a group of petitioners which paved way for The Witness Protection Scheme in 2018.
In 2014, Mahindra Chawla, one of the key witnesses of the rape case against the self -styled godman ASARAM BAPU and his son Narayan Sai expressed their apprehensions and constant intimidation regarding their safety post their involvement in the case against the influential self-style godman. Mahindra Chawla was saved by a hair’s breadth from a deadly attack on him by the allies of AsaramBapu (who was accused of having raped a minor girl) thus coercing Chawla to seek a fortified security for himself and his family
- Actor ShayanMunshi who had filed the FIR in the Jessica Lal murder case, retracted his statement and turned into a hostile witness in the court of law. He contradictedhis own complaint and rebutted all the charges in the plaint by claiming that he didn’t understand Hindi and therefore was clueless of the contents of the FIR filed by the cops.
- In another instance, RavindraPatil a former cop and Salman Khan’s bodyguard was reportedly under enormous pressure to alter his statement against the actor in the latter’s 2002 hit and run case. Patil even went missing during the trial process and reportedly absconded in order to conceal himself from Khan’s lawyers and the harassing police officers.
There are innumerable instances where the witnesses turned hostile on receiving extraneous wrath of the accused, thus, halting or in some cases the due process of free and fair trial to seek justice. It prolonged the battle for justice and in some cases the accused person was exonerated on ground of insufficient evidence despite being guilty prima facie (as happened in Jessical Lal’s case) in lieu of his influential background. Such incidents are an anathema to justice and a well developed, fortified, thoroughly scrutinized and effective witness protection scheme guaranteeing and enshrining the rights of witnesses laidthe cornerstone of witness protection in India.
GUIDELINES FOR PROTECTION OF VICTIM
In the case ofMs. NeelamKatara v. Union of India,[30]the Delhi High Court issued certain guidelines for the police on providing protection to witnesses in order to curtail the menace of them getting hostile resulting in the acquittal of accused involved in an atrocious crime. These are “first of their kind” in India and are praiseworthy. The decision was given on a petition by NeelamKatara whose son had been kidnapped from a marriage and it was alleged that kidnapping was done by an MP’s son and nephew and they had killed Neelam’s son. Under the fear that investigation would be influenced by the political power of the MP, she filed a petition for issuing directions for providing protection to witness. In response to which, the Court laid down guidelines.
7.5 WITNESS PROTECTION GUIDELINES
a)Definitions
“Witness means a person whose statement has been recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure pertaining to a crime punishable with death or life imprisonment.
‘Accused’ means a person charged with or suspected with the commission of a crime punishable with death or life imprisonment.
‘Competent Authority’ means the Secretary, Delhi Legal Services Authority.
Admission to protection: The Competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration.
- b) Factors to be considered
- i) In determining whether or not a witness should be provided police protection, the Competent Authority shall take into account the following factors:
- ii) The nature of the risk to the security of the witness which may emanate from the accused or his associates.
iii) The nature of the investigation in the criminal case.
iv)The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.
- v) The cost of providing police protection to the witness.
- c) Obligation of the police:
- i) While recording statement of the witness under sec. 161 of the Code of Criminal Procedure, it will be the duty of the Investigating Officer to make the witness aware of the ‘Witness Protection Guidelines’ and also the fact that in case of any threat, he can approach the Competent Authority. This, the Investigating Officer will inform in writing duly acknowledged by the witness.
- ii) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.”
It was mentioned by the Court that the guidelines shall be in operation for protecting witnesses till a suitable enactment is legislated upon.
The guidelines, however fail to answer the manner of maintaining the confidentiality of witness identity before, after and during the course of proceedings nor does it provide any safeguard to assure the non-jeopardy of the right of accused to a fair trial.
- CONCLUSION AND SUGGESTIONS
The toil of a victim to attain formal rights institutionalized and incorporated within the Indian penal system is a perpetual battle which continues till date on many fonts. The impediments encountered by the victims as discussed in this research article stems from various quarters. It is observed by the criminologists and victimologists that the newly acquired rights such as right to compensation, restitution etc has little or no impact on putting an end to the victim’s suffering.
In light of the provisions in the Indian Criminal Jurisprudence and the landmark judgements of the Apex court, the victim’s role in the trial process seems to be overtly passive and insufficient with the criminal laws being accused oriented rather than victim oriented. Until and unless there is formulation of legislations pertaining to the participation of the victim in the criminal trial process and the prosecution process, there would be no room for the plenary development and upliftment in the status of the victim in the society as well as in the eyes of the law. This vacuum can be filled by adoption of restorative justice system in India allowing both the parties to have a dialogue with each other in order to amiably redress the grievance and dilute the aggravated situation. Thus, adopting mediation, negotiation or a restorative justice system might be the elixir for a victim under the criminal justice system.
The researcher suggests these major changes in the criminal justice system, trial process, victim and witness protection laws in conformity with the recommendations of Justice V Malimath Committee and few based on the recommendations of 198th Law Commission on Witness Protection. .
- Need to incorporate certain efficient features of the inquisitorial system within the adversarial system- The inquisitorial system as followed in the civil law countries such as France, Germany etc as opposed to the common law countries following an adversarial system, allows supervision of investigation process preceding the trial by the Judicial Magistrate which instills a greater sense of justice, fair trial to the accused as well as the victim. Such diligent features of the inquisitorial system should be incorporated in the adversarial system in order to fortify the Indian criminal justice system. An inquisitorial legal system is designed to discover the truth in a matter, and the victory or verdict does not depend on the efficiency of the lawyer.
The concept of the examining magistrate—an independent judicial officer appointed to oversee the police investigation into a crime; and the practice in some jurisdictions that the jurors and judges sit together on the bench during the hearing and later jointly deliberate on the verdict might ensure a discrepancy free investigation.
- Need for In-camera trial- The in-camera trial as opposed to the open justice delivering system as traditionally practiced in Indian Courts should be used sparingly and judiciously (only for sensitive cases such as rape) in order to prevent the victim from any extraneous wrath of the accused and as mentioned above, even the 178th Law Commission report recommended the same and was majorly based on the case Sakshi v. Union of India[31]which endorsed in camera trials to distance the victim safely from the accused in order to ensure a fair testimony devoid of fear as often is observed that the victim gets traumatized and is affected psychologically when he/she meets the accused face to face.
[1] Rattan Singh v. State of Punjab, 1964 AIR 1223 (India).
[2]Justice Krishna Iyer, The Criminal process and legal aid, 11 IJC. 10, (2008).
[3] Hari Krishnan and state of Haryana v. Sukhbir Singh, AIR 1998 SCC 2127 (India).
[4]Supra note 3 at 2.
[5] UNDBPJ. art 1.
[6]Rudul Shah v. State of Bihar, 1983 SCR (3) 508.
[7]Ibid.
[8]Bhim Singh v. State of Jammu & Kashmir, (1985) 4 SCC 677 (India).
[9]DipaDube, Victim Compensation Schemes in India , 3. IJCJS 10, (2018).
[10]Crpc. S 357(3).
[11]Crpc S 359.
[12]NilabatiBehra v. State of Orissa, (1993) 2 SCC 746.
[13] Probation of offenders act S 5.
[14]1979 AIR 1369
[15](1993) 2 SCC 746.
[16](1997) 1 SCC 416.
[17]Id at 443.
[18]Bibhabati Devi v. Ramendra Narayan Roy, (1947) 49 BOMLR 246.
[19]AIR 1988 SC 2127.
[20]AIR 1983 SC 1086.
[21]2009 (4) JLJR 106.
[22]AIR 1984 SC 1826.
[23](1997) 1 SCC P-4.
[24]1996 AIR 922.
[25](1991) 1 SCC 57.
[26]NeelamKatara v. Union of India, ILR (2003) II Del 377 260.
[27](2004) 4 SCC 158.
[28](1997) 6 SCC 514.
[29]2004 (2) ALD Cri 504.
[30]Supra note 31 at 12.
[31]2004 (2) ALD Cri 504.
