Beruflich Dokumente
Kultur Dokumente
Chetankumar T M
Chetan Irannavar
ABSTRACT
In recent years victim compensation in the world has often been viewed as a developmental area in the world of
victim services and assistance. It emerged independently, operated for many years separately from service
networks, and seemed to address different issues and problems. In reality, the evolution of victim compensation
was a key factor in the victim assistance movement. In the early Common Law of Middle England, if a man was
murdered, the mans family was entitled to a werguild of four pounds. Gradually, however as the criminal justice
system was separated from civil proceedings, state reparations began to subside and the state became primarily
responsible for imposing punishment based not only on harm done to individual victims but also harm done to the
king or feudal lord. Traditionally, international law has paid insufficient attention to victims. An explanation for
this can be found in the particular nature of international law. It is need less to point out that the whole
legislative paradigm coupled with lack of judicial determination has exposed numerous flaws of the present legal
system about the compensation therefore there is need for revamping the whole legal system once. At the
international level attention was given to provide justice to the victims. The UDHR, 1948, ICCPR, 1966, and the
Judiciary play a vital role in protecting the rights of the Victims. The concept of victimology is a new trend and
finds its place only in recent importance during 1940s and 1950s. The different countries of the world are having
their own system of protecting the victim interests. In the present scenario it draws the attention both at the
national and international level. This is the right time for the whole world to think in this direction and have their
own comprehensive law on Victims rights and interests.
INTRODUCTION
In every civilized country a criminal commits the crime and the State apprehends the offender and brings
him to trial. If, he found guilty then he is convicted and sentenced to undergo any form of punishment. At this
juncture, some questions arise in mind. Does this complete the wheel of criminal justice? If yes, then what about
the crime victims? Traditionally, it may have been sufficient that the criminal is caught and punished. But, the
modern is to also focus on the victims of crime. It is all very well that the accused is given a fair and just trial, that
Student, 3 Years LL.B., V Sem, Raja Lakhamgouda Law College, Belagavi, Karnataka.
In our efforts to look after and protect the human rights of the convict, we cannot forget the victim or his
family in case of his death or who is otherwise incapacitated to earn his livelihood because of the criminal act of
the convict. The victim is certainly entitled to reparation, restitution and safeguard of his rights. Criminal justice
would look hollow if justice is not done to the victim of the crime. The subject of victimology is gaining ground
while we are also concerned with the rights of the prisoners and prison reforms. A victim of crime cannot be a
forgotten man in the criminal justice system. It is he who has suffered the most. His family is ruined particularly
in case of death and other bodily injury. This is apart from the factors like loss of reputation, humiliation, etc. An
honor which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at
least provide some solace.1
The increased attention toward victims of crimes in past years has motivated many countries to rethink the
mechanisms used in many sectors of the society who provide assistance and protection to victims of crime. 2 One
of the fundamental principles of justice is the victim's right to compensation for the injuries and losses he has
suffered as a consequence of an offence committed against him. In principle compensation should be paid by the
offender, for he is the one who has caused the damage. In this respect different models may be distinguished. The
victim may sue the offender in a civil court, but there are also models which allow the victim to claim
compensation within the context of the criminal process, namely the adhesion procedure, the compensation order
and a hybrid model combining the adhesion procedure with a compensation measure.3
1
State of Gujarat v. Honble High Court of Gujarat, (1998) 7 SCC 392
2
Magnus Lindgren and Vesna Nikolic-Ristanovic, Crime Victims: International and Serbian Perspective, First Edition, Published by
Organization for Security and Cooperation in Europe, Mission to Serbia, Law Enforcement Department.
3
Marion E.I. Brienen, Ernestine H. Hoegen, Compensation Across Europe: A Quest for Best Practice, International Review of
Victimology, 2000, Vol. 7, pp. 281.
4
V. N. Rajan, Victimology in India Perspectives Beyond Frontiers, A P H Publishing Corporation, New Delhi, 2012, p. 5 & 6.
Sub section (3) empowers the court, in its discretion, to order the accused to pay compensation even
though fine does not form part of compensation and hence although inserted in 1973 added new positive
dimension to Indian philosophy of compensation.
Probation of Offenders Act vide its section 5 empowers the trail court to order for compensation. The
5
Dr. Krishna Pal Malik, Penology, Victimology and Correctional Administration in India, First Edition, Published by Allahabad Law
Agency, Faridabad (Haryana), 2012, p. 210.
Sentencing policy has, in modern times, come to be regarded largely as a matter involving the offender
and the state. In recent years, however, there has been an increasing awareness that the criminal justice system
could do more for the victims of crime.6
The principle of payment of compensation to the victim of crime was evolved by Hon'ble S.C. on the
ground that it is duty of the welfare state to protect the fundamental rights of the citizens not only against the
actions of its agencies but is also responsible for hardships on the victims on the grounds of humanitarianism and
obligation of social welfare, duty to protect it's subject, equitable Justice etc . It is to be noted that compensation
by the State for the action of it's official was evolved by the Hon'ble Court against the doctrine of English law:
"King can do no Wrong" and clearly stated in the case of Smt Nilabati Behra v State of Orissa7, that doctrine of
sovereign immunity is only applicable in the case of tortuous act of government servant and not where there is
violation of fundamental rights and hence in a way stated that in criminal matters (of course if there is violation of
fundamental rights) this doctrine is not applicable.
Rudal Sah v State of Bihar8, is the most celebrated case where the Hon'ble Supreme Court directed the
state to pay compensation of Rs 35,000 to Rudal Sah who was kept in jail for 14 years even after his acquittal on
the ground of insanity and held that it is violation of Article 21 done by the State of Bihar. The case of Bhim
Singh v State of J&K9, is another important case where Bhim Singh an MLA was arrested by the police only to
prevent him to attended the Legislative Assembly, the Hon'ble Court not only entertained the writ petition of his
wife but also awarded the compensation of Rs 50,000 to be paid by the state.
The case of Meja Singh v SHO Police Station Zira10, is another unfortunate case where this time High Court of
P&H took the cause of victim and awarded the compensation of Rs 25,000 for illegal detention of son of the
6
Lord Cameron, Future Trends in Sentencing Policy The Satisfaction of The Individual Victim Within A System of Public Prosecution,
International Review of Victimology, 1991, Vol. 1, p. 315.
7
(1993 AIR 1960,1993 SCR(2) 581
8
(1983 AIR 1086,1983 SCR(3) 508
9
(AIR 1986 SC 494,1986 Cri L J 192, 1985 (2)SCALE 1117, (1985) 4 SCC 677, 1986(1)UJ 458 SC)
10
(1991 ACJ 439)
www.apjor.com Page 178
Asia Pacific Journal of Research Vol: I. Issue XXXVI, February 2016
ISSN: 2320-5504, E-ISSN-2347-4793
petitioner. This time it was High Court Bombay, which took the cause of the victim in the case of Ravikant Patil
v DG Police11, State of Maharastra where the petitioner was taken handcuffed to court in clear violation of
Judgment of Hon'ble Supreme Court, that is law, as decided in the case of Prem Shanker Shukla v Delhi
Administration12, Custodial Death is another burning issue where the courts have awarded compensation to the
victims of crime and the most important case under this heading is of Mrs. Cardino v UOI13 where although the
accuse was arrested on the charge of misappropriation of some plastic ware and hospital; utensils worth Rs1500
but tortured like hard core criminal and hence he succumbed to the torture. Here when the matter was brought
before the Hon'ble High Court of Bombay which gave the compensation of Rs 2,00,000 to be paid by the state.
In the case of Nilabati Behra v State of Orissa14 where the son of petitioner was arrested by the police and
next morning his body was found laying down with several injuries on the railway track, the Hon'ble S.C.
awarded the compensation of Rs 1,50,000 that is to be paid by the State.
International Perspective
Traditionally, international law has paid insufficient attention to victims. This can be found in the
particular nature of international law. The interstate structure of the international community, international norms
are created to respond to states interests and goals.15 Around the world every year millions of victims suffer
severe physical, psychological and financial harm as a result of the deliberate acts of wrongdoers. These victims
are men and women, children and the elderly, the healthy and the infirm, rich and poor. Their suffering is often
ignored or forgotten. It is exacerbated by the justice system that was created to punish the wrongdoer.16
Victimology is increasingly recognized as an international concern of today, across many cultures and
legal systems. The United States is visited by millions of foreign nationals each year, and citizens of the United
States travel and live in virtually every part of the world. As our societies become more global and mobile, it is no
longer possible to confine victim assistance to the borders of a particular country. Crime and victimization have
become transnational, and countries must look beyond their national boundaries to share information, technology,
and resources to assist victims.17
The Criminal Injuries Compensation Scheme was first introduced in the United Kingdom in 1964 as an
experiment on a non-statutory basis to provide ex gratia compensation to the victims of crimes of violence and to
those hurt in their attempts to arrest the offenders and to prevent crimes. Compensation is calculated on the same
basis as damages in civil proceedings & is paid in lump sum rather than a periodic pension. It includes payment
for the pain & suffering caused by the injury & for the loss of earnings or earning capacity & out-of-pocket
expenses. In case of death of victim, the compensation for the loss of income, for the funeral & other expenses is
payable to the widow or to the dependents of the victim.18
11
(1991 ACJ 1060,1990(2)BOMCR 242,(1990)92 BOMLR 173,1991 CriLJ2344)
12
(1980AIR 1535,1980 SCR(3) 855
13
2007 Cri. L. J. 1758
14
(1993 AIR 1960,1993 SCR(2) 581
15
Carlos Fernandez de Casadevante Romani, International Law of Victims
16
Irvin Waller, Justice Even for the Crime Victim: Implementing International Standards, International Review of Victimology, 1989,
Vol. 1, p. 89.
17
New Directions in International Victim Assistance
https://www.ncjrs.gov/ovc_archives/directions/pdftxt/chap18.pdf
18
Offender and State compensation for victims of crime: Two decades of development and change
http://irv.sagepub.com/content/20/1/145.full.pdf+html
19
International Perspective of Compensation
http://shodhganga.inflibnet.ac.in/bitstream/10603/28181/11/11_chapter%204.pdf
20
Marlene A. Young, The Role of Victim Compensation in Rebuilding Victims Lives
http://www.iovahelp.org/About/MarleneAYoung/RoleOfVictComp.pdf
21
Supra note 19.
22
(i) The fair treatment of victims and witnesses in the federal criminal justice system.
(ii) The right to include victim impact statements in presentence investigation reports.
(iii) New criminal penalties to protect victims and witnesses from intimidation, harassment, and retaliation,
including provisions for civil restraining orders.
(iv) Restitution for the victim.
(v) Consideration of victims interest in bail decisions.
23
Supra note 19.
24
It says that the victim means a person against whom an offence is committed by another person; and suffers physical injury, or loss of,
or damage to, property; and a parent or legal guardian of a child, or of a young person, unless that parent or guardian is charged with the
commission of, or convicted or found guilty of, or pleads to the offence concerned; and a member of the immediate family of a person
who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of,
or convicted or found guilty of, or pleads guilty to, the offence concerned.
Conclusion
At international level several Acts provides compensatory relief to the victims but the existing legal
framework in India in relation to right of Victims towards rehabilitation except in the area of providing
compensation, very little has been done either statutorily or through schemes .The development of entitling the
Victim a right to rehabilitation is at an early stage. Lessons can be learnt from and improve upon the diverse,
preliminary efforts towards Victims rehabilitation. Although there will always be debate about what can and
should be offered. It is high time for the legislature to come out with diverse and elevating rehabilitation schemes
which would genuinely benefit the Victim to forget his plight. The present position of Victim Rehabilitation
Schemes in India needs to be revisited. A new specialized legislation needs to be drawn in lines with that of US
and UK in order to render meaningful justice, social and legal and facilitate effective rehabilitation.
25
(a) treat the victim with courtesy and compassion; and
(b) respect the victims dignity and privacy.
26
Cyndi Banks, Victims in the Village: Aspects of Restorative Justice in PAPUA New Guinea, International Review of Victimology,
1999, Vol. 6.
http://irv.sagepub.com/content/6/4/377.full.pdf+html
4. Dr. Malik Pal Krishna, Penology, Victimology and Correctional Administration in India, First Edition,
Published by Allahabad Law Agency, Faridabad (Haryana), 2012.
7. WALLER IRVIN, JUSTICE EVEN FOR THE CRIME VICTIM: IMPLEMENTING INTERNATIONAL
STANDARDS, International Review of Victimology, 1989, Vol. 1.
9. Offender and State compensation for victims of crime: Two decades of development and change
http://irv.sagepub.com/content/20/1/145.full.pdf+html
11. Young A. Marlene, The Role of Victim Compensation in Rebuilding Victims Lives
http://www.iovahelp.org/About/MarleneAYoung/RoleOfVictComp.pdf
12. BANKS CYNDI, VICTIMS IN THE VILLAGE: ASPECTS OF RESTORATIVE JUSTICE IN PAPUA NEW
GUINEA, International Review of Victimology, Vol. 6, 1999.
http://irv.sagepub.com/content/6/4/377.full.pdf+html