DEVELOPMENTS OF VICTIMOLOGY AND CONTRIBUTIONS BY THE MADRAS HIGH COURT AND SUPREME COURT OF INDIA.

 

DEVELOPMENTS OF VICTIMOLOGY AND CONTRIBUTIONS BY THE MADRAS HIGH COURT AND SUPREME COURT OF INDIA.

INTRODUCTION:-

Victimology is the scientific study of Victimization. There is no law in India specifically supporting theory of victimology. In many countries, victimology has been approved and codified. Though no law in India has approved Victimology, it has been developed by Higher Judiciary in India. In this article, the author intends to analyze the development of Victimology by law of Precedent by Honourable Apex Court of India as well as by the Honourable Madras High Court. This article speaks about crime victims and their rights compared with the rights of an accused.

VICTIM

In the study of criminology, a victim of a crime is an identifiable person, but not in all cases. In white color offences, victims may not able to be identified. Section 2(wa) has been inserted in the Code of Criminal Procedure as per the Amendment by Act 5 of 2009.

Section 2(wa) of Code of Criminal Procedure defines victim as follows:

“Victim” 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.

TYPE OF VICTIMS

a) Known victim.

b) Unknown victim.

c) Victims of crime.

d) Victims of war crime.

e) Victims – abuse of power by officials.

NEED OF VICTIMOLOGICAL APPROACH

In recent days, offences against human body, crime against women, child and white color crimes are increasing alarmingly. The data provided by the National Crime Record Bureau reveals that 33,201 cases under Section 302 IPC and 33,707 Rape cases and 31,927 robbery cases and in all sorts 66,40,378 crimes have been registered in India in the year 2013. It is considerably high while comparing with previous years. Admittedly, the rate of conviction in murder case is 36.5% rate of conviction in Rape case is 27.1% rate of conviction in dacoity case is only 19.7% and rate of conviction in robbery case is 29.8% and total property crimes are 5,16,648 but rate of conviction is only 32.4%.

Hence, it is the right time to think about possible Victimological approach and to codify new laws in the field.

EXISTING PROVISIONS IN CRIMINAL LAW TO SAFEGUARD VICTIMS:-

Anybody can set the criminal law on motion by preferring a report before the Station House Officer popularly known as complaint but “REPORT” as defined under section 154(1) Cr.P.C. If FIR is not drawn-up immediately after preferring the complaint, substances of the complaint may be sent to the Superintendent of police concerned by register post under section 154(3) Cr.P.C.

Even after sending complaint to Superintendent of Police, if FIR has not been registered, then the defacto -complainant can file a petition under section 156(3) Cr.P.C. before the learned Judicial Magistrate concerned praying to send the complaint to Police officer to register an FIR and to take up the investigation. The learned Judicial Magistrate after receipt of complaint under section 156(3) Cr.P.C can send the same to Police officer to register FIR or cognizance can be taken under section 190 Cr.P.C and to proceed in terms of Section 200 Cr.P.C. After exhausting the remedies referred above if FIR is not registered, the victim can move the Honourable High court under section 482 Cr.P.C. for a direction to register FIR. After the registration of FIR, copy of FIR has to be furnished to defacto-complainant forthwith, free of cost as per section 154(2) Cr.P.C.

The Honourable Constitution Bench of the Supreme Court has given guidelines in [Lalita Kumari Vs. Government of Uttar Pradesh] 2013 MWN Crl.321  Hence if cognizable offence is made out on bare reading of report under section 154(1) Cr.P.C., it has to be registered as FIR. This is the landmark verdict which safeguards the rights of victim. Now, the division bench of Madurai Bench of Madras High Court in a judgment reported in [G.Prabakaran Vs Superintendent of Police, Thanjavur and another] held that the dictum of Hon’ble Supreme Court in Lalitha Kumari’s case (2013 MWN Crl.321 SC) has to be followed and if no FIR is registered, then application under section 482 Cr.P.C is maintainable.

COMPLAINT

Victim can also file a complaint (as defined u/s. 2(d) of Cr.P.C.) before the learned Judicial Magistrate Court concerned by invoking Section 200 Cr.P.C.

NEGATIVE FINAL REPORT & RIGHTS OF VICTIM

The investigation in criminal case starts after the registration of (FIR) First Information Report and ends with Final report under Section 173(2) Cr.P.C. If Negative final report is filed before the Learned Judicial Magistrate, the same may be accepted or rejected well within the powers of the Learned Judicial Magistrate under section 190(1) Cr.P.C. But defacto-complainant will be in darkness about his/her case even if negative final report is filed. There is no law conferring right on the defacto-complainant to challenge nor any provision to get informed about the finality of the investigation to him/her. This position of law created a vacuum in criminal law and same has been annulled by the Honourable Apex court in [Bhagwat Singh Vs. Commissioner of Police] and in [Union Public Service Commission Vs. S.Papaiah and others] reported in.

As per the law laid down in Bhagawat Singh case stated supra, the issuance of a notice to the informant/defacto- complainant by the Learned Judicial Magistrate at the time of consideration of the final report is MUST, this is the binding precedent and the law of the land governing the field. a) Major offence was deleted by the I.O and charge sheet was filed.

– [P. Alagarsamy Vs. State of Tamil Nadu and others] – In the above case, the Investigating Officer has filed a final report deleting Section 3(1) (x) of SC/ST Act. The accused appeared before the Learned Magistrate and recorded the plea of guilty and convicted him for minor offence u/s. 341 and 323 IPC by imposing petty fine. The said conviction and sentence was challenged by the defacto-complainant before the Hon’ble Madras High Court.

The Hon’ble Madras High Court in a landmark judgment set-aside the conviction on admission by accused in an application u/s 482 Cr.P.C. moved by victim and ordered re-investigation. In the above case, the FIR was registered for the offences including offence under SC/ST Act but investigation was done by the Inspector of police violating Rule 7 of SC/ST Act, and final report was filed only for offence u/s 294 (b) IPC accused admitted offence and fine was imposed, it was challenged and same was set-aside.

b) Major offence was deleted by the I.O and charge sheet was filed and cognizance was taken. It was challenged by the victim u/s 482 Cr.P.C., the Madurai Bench of Madras High Court was pleased to quash the cognizance taken by the Learned Judicial Magistrate in [MJM. Moulana Vs Inspector of police Arumuganeri P.S and others], it is reported in.

WHETHER NOTICE ISSUED BY POLICE TO DEFACTO-COMPLAINANT IS SUFFICIENT:-

The Apex Court has held in UPSC Vs. S.Papaiah decided that the issuance of notice by the Judicial Magistrate cannot be substituted by notice issued by CBI. [Union Public Service Commission Vs. S.Papaiah and others] reported in. WHETHER FINAL NOTICE IS NECESSARY IN COMPLAINT CASES

Even before dismissing the private complaint for non- prosecution final notice to defacto-complainant is necessary as per the decision of Honourable Apex court in [Associated Cement company limited Vs. Kesavanand] 1998(1) MLJ Crl. 170 SC and following the same Honourable Madras High Court also took similar view in the following cases:

9[Srinidhi Mobile Financial services rep by P.Malayappan Vs.

R.Sangeetha proprietrix City sun Motors Ondiputhu]

[N.R. Janathanam Vs. Manjula Pannerselvam]

[Wake field Spinners by its Partners D.Parthsarathy Vs. KN Raman]

[S.Ravichandran Vs.V.Pandiyan]

In the scheme of investigation, the defacto-complainant has no role to play except in giving the ‘Report’ in terms of Section 154 (1) Cr.P.C., statement before the Investigating Officer under Section 161(3) Cr.P.C. It is to be noted that the defacto-complainant cannot assist the investigation officer or oppose bail application moved by the accused. The defacto-complainant has no active role either during investigation or during trial. He cannot choose public prosecutor. Since, all the crimes are considered to be committed against the State, state has got responsibility. So Public Prosecutor, Special Public Prosecutor has been appointed by the State under Section 24 Cr.P.C., and informant will not be heard before appointment of Public Prosecutor nor defacto-complainant can have any say over appointment of Public Prosecutor.

This issue has been recently decided by Madras High Court in. M.Dhamayanthi Vs. Muruganandam and others, case reported in MLJ (Crl), wherein it has been held that “a Victim of atrocity under the SC/ST (Prevention of Atrocities) Act is entitled to engage a senior advocate of his/ her choice for the conduct of case in the Special Court as per Rule 4(5) of SC/ST Act Rules 1995.

[F. Anthia Fathima Vs. Superintendent Police. All women Police Station, Krishnagiri]

VICTIM AT THE HANDS OF OFFICIALS

[V. Koilpillai Vs. The State of Tamilnadu by its Secretary, Home Dept., Chennai & others]

The above case was filed playing for direction to register the F.I.R for illegal confinement, torture, violation of human rights and for malicious prosecution. In this case, one Miss Manimegalai has been driven from pillar to post for a period of 4 years to establish that she is alive and that the judicial declaration made by a Court of Session in a judgment that she was murdered on 4.4.2002 is inconsistent with her living body and soul. The Hon’ble Madurai Bench of Madras High Court was pleased to record evidence by exercising power u/s. 482 Cr.P.C. and in the lengthy judgment, the Hon’ble High Court was pleased to set aside the final report filed in the above case and all other consequential proceedings including the order of taking cognizance and judgment of Trial Court were set aside and Rs.4 Lakhs was awarded as compensation to each accused.

VICTIM AT THE HANDS OF THE POLICE

[Ponnusamy Vs. Sreekumaran & 5 others] – Death of a Youngman suspected to be at the hands of the police personnel. The case was referred too by the police as “Mistake of Fact”. The complaint u/s. 200 Cr.P.C was dismissed at the initial stage.

Re-investigation was ordered by Madras High Court to be conducted by Deputy Superintendent of Police, but no action was taken. So, the complaint u/s. 200 Cr.P.C was filed. Again it was sent to police to register a case and to investigate u/s. 156(3) Cr.P.C. Again it was referred as ‘Mistake of Fact’. Protest petition was closed.

The Director General of Police was directed to take departmental action against concerned the Deputy Superintendent of Police for his lethargic and disrespectful attitude in this case.

16[M.Perumal and others Vs State]

Suo motu writ , Ramleela Maidan incident case

 [R.Parameswari Vs. State ] - Final report was filed as “Action Dropped”, without issuing notice to informant it was accepted by Learned Judicial magistrate. It was set aside by the Madras High court by applying principles laid down by apex court in [Bhagwant Singh Vs. commissioner of Police and another] –and [Jakia Nasim Ahesan Vs. State of Gujarat] -.

[Satyavani Ponvani Vs. Samuel Raj and another]

It has been decided that the victim has a right to intervene in Bail application.

21[M. Ramiah Vs. State]

In a case where an allegation has been made that the accident has been caused by the act of the alleged occurrence and materials would disclose that he was in a drunken-mood at the relevant point of time, the investigating agency is bound to register the case u/s. 304(ii) of I.P.C. Direction to police and Judicial Magistrate issued.

[Katturaja and another Vs. State].

(a) On hearing a reformed trial, the Hon’ble Division Bench of Madras High Court, Bench at Madurai for the first time in the history ordered re-investigation holding that simply acquitting accused will not amount to doing justice to victim family. Power of the High Court u/s. 482 Cr.P.C and Article 226 of the Constitution of India have been elaborately discussed. Writing the judgment on behalf of the Division Bench is has then been held that, “The High Court has been empowered by the people of this country under Article 226 of the Constitution of India to issue any order to do justice to the parties. On a mere technical ground purely relating to procedure this Court cannot remain silent and abdicate its duty so as to allow justice to fail. Therefore, in view of the above specific provisions contained under Article 226 of the Constitution of India, we deem it absolutely necessary for this Court to order further investigation in this case.

b) Re-investigation was ordered by the Honourable High Court MADRAS at Madurai Bench in Subbiah Vs State] reported in.

c) While deciding a referred trial, Honourable Madurai Bench of Madras High Court was pleased to order RE-INVESTIGATION without setting aside the conviction and after final hearing though acquittal was recorded compensation was ordered by the Division Bench of Madras High Court, reported in – [Katturaja and others Vs. State]

25[Tmt. R. Kasthuri Vs. State]

The police custody – death – directions were issued by the Hon’ble Madras High Court.

In the following cases, compensation was ordered by the Madras High Court in Writ Jurisdiction.

In [Suresh and another Vs. State of Hariyana] reported in – The Hon’ble Supreme Court has elaborately discussed the object of Section 357-A Cr.P.C to pay compensation to the victim. In the decided case `10 Lakhs was ordered as interim compensation to the family of victims.

WITNESS IDENTITY PROTECTION

The law commission of India by its 198th report on the witness identity protection and witness protection programmes recommended detailed frame work for witness identity protection and witness protection programmes. Before forwarding such report, the Law Commission of India was pleased to prepare a consultation paper on WITNESS IDENTITY PROTECTION AND WITNESS PROTECTION PROGRAMMES and invited responses to questionnaires, conducted two seminars on 9.10.2004 and 22.1.2005 where a number of Judges of High Court, Lawyers, Police Officers, Public Prosecutors and Judicial Officers participated. After thorough research, recommendations were made by the Law Commission of India by its 198th report.

In the following cases, the Honourable Apex court emphasized the need of legislation on witness protection.

i         i) Hussain Khatoon case has to be referred9[NHRG Vs. State of Gujarat]

ii        ii) 30[Pucl Vs. Unios of India]

iii        iii) [Zahira Habibulla Sheik Vs. Gujarat] iv) [Zahira Vs. Gujarat Sakeshi Vs. Union of India] Witness protection laws/ programme are not codified in India. If an accused threatens the witness either during the course of investigation or during trial, separate criminal case will be registered. On an application either by prosecution or by informant, bail granted to such accused will be cancelled by invoking Section 437 (5) or Section 439 (2) Cr.P.C.

IN APPROPRIATE CASES, THOUGH NOT MOVED BY THE STATE, ON APPLICATION BY THE VICTIM, BAIL WAS CANCELLED

(a) [Sheshammal Vs state and another] In this case bail was granted as if consent was given by victim, the bail order was challenged by mother of victim on the ground this victim was minor and so consent if any does not have legal leg to stand, accepting the same bail was cancelled.

(b) [Shanmugam vs state] in this case, anticipatory bail granted by session’s judge was cancelled on the ground of suppression of fact by the accused.

The Honourable Madras High Court very recently decided bail application relating to a case u/s 376 IPC and press and law journals were ordered not to publish the names of the parties. Hence, so it has been reported as X Vs Y IN 2014 MLJ (Crl).

In order to protect the rights of Witnesses in criminal cases, several countries enacted laws namely witnesses protection Act and also do have the witnesses Protection Programme. In USA, United States Federal Witnesses protection programme known as witness security programme or WITSEC administered by the United States Department of justice and operated by the United States Marshals service is designed to protect witness before, during and after trial, other States Like California, Illinois, New York, Texass have their own witness protection programme. In Canada, witness protection program Act Sc 1996 has been enacted with 21 Sections of law and Section 21 provides punishment for contravention of Section 11(1) i.e., [Periyasami Vs. State]. In Dharmapuri Bus burning case also evidence recorded by the Trial court was eschewed by the Honourable Madras High Court on application by Victim under Section 482 Cr.P.C., and Special Public Prosecutor was appointed by the High Court.

COMPENSATION TO VICTIM

Compensation to victims are one of the rights of victim In many cases, the Honourable Apex Court as well as High Courts in India stressed the grant of compensation in appropriate cases.

RAPE VICTIM AND NEW AMENDMENTS

After the Delhi incident, the Honourable Apex Court to suo motu has taken writ proceedings and only then suitable amendments were made in Section 376 IPC and Section 354 IPC including the punishment and procedural laws taking consideration of VICTIM.

RIGHT OF VICTIM TO FILE APPEAL AGAINST ACQUITTAL

In early days as per the provisions of Code of criminal procedure an appeal against acquittal can be filed only by the state.In a well discussed case by our Honourable Apex Court reported in

[PSR.Sahananham Vs. Arunachalam and another].

Decided that even appeal at the hands of brother of the informant against acquittal was justified. Now, there was an amendment and appeal against acquittal can be filed by victim. Section 372 Cr.P.C.

This is a major development and mile stone in VICTIMOLOGY.

In the judgment reported in 215 LW Crl. the Madras High Court referred the case to the Full Bench in order to decide whether complainant in complaint case can file, appeal against acquittal before the Sessions Court or before the High Court after getting the leave of the High Court.

CONSTITUTIONAL SAFEGUARDS GIVEN TO ACCUSED PERSONS AS WELL AS ARRESTED PERSONS

Article 19 of Constitution of India says about protection of certain rights regarding freedom of speech.

Article 20 of Constitution of India confers three different fundamental rights of accused persons-

(i) Article 20(1) – Ex-post facto laws - No person shall be convicted of any offence except for violation of law in force at the time of commission of offence.

(ii) Article 20(2) – Protection against Double Jeopardy - No person shall be prosecuted and punished for more than one time for the same offence. This constitutional guarantee of accused person is also provided in Section 300 of Code of Criminal Procedure.

(iii) Article 20(3) – Right against self-incrimination – No person accused of any offence shall be compelled to be a witness against himself. The leading case law on the point of right against self-incrimination has been widely discussed by the Apex Court in Nandini Satpathi Vs. State of Orissa. In a recent case, an accused was directed to produce a document which is incriminating against himself has been widely discussed by the Hon’ble Madras High Court in [R.R. Govindarajan Vs. State] –.

Article 21 of Constitution of India says that no person shall be deprived of his life or personal liberty except according to the procedures established under Law.

Article 22 of Constitution of India specifically protects rights of the arrested person and rights of the detenu under preventive detention laws. It says that arrested person shall be informed of the grounds of his arrest.

PROTECTION GIVEN UNDER THE CODE OF CRIMINAL PROCEDURE TO SAFEGUARD THE INTEREST OF ACCUSED PERSONS

The Criminal Procedure Code 1973, had extensively dealt with the rights of the accused persons in its various provisions. Particularly, Sections 41 to 60-A of Criminal Procedure Code specifically deals with the rights of the accused persons.

 

(i) Section 41 Cr.P.C. – What are all the procedures to be followed by the police officer while arresting the person. Particularly, Section 41-A to 41-D deals with certain obligations on the part of the police officer at the time of making arrest.

(ii) Section 46 Cr.P.C. provides that procedures to be followed by the police officer at the time of making arrest. Particularly no women shall be arrested after sunset and before sunrise.

(iii) Section 49 Cr.P.C. – No unnecessary restraint.

(iv) Section 50 Cr.P.C. – Person arrested to be informed of grounds of arrest and of his right to be released on bail.

(v) Section 51 Cr.P.C. – Protects – accused persons’ rights at the time of making search.

(vi) Sections 53, 53-A, 54 Cr.P.C. – deals with rights of the accused person to be medically examined at the time of making arrest.

(vii) Section 54-A Cr.P.C. – Identification of person arrested – it is bounden obligation of the police officer while making arrest.

(viii) Sections 56, 57 and 167 Cr.P.C. – Person arrested to be taken before the Magistrate immediately. Further, no police officer shall detain in custody of person arrested without warrant for a longer period and the detenu to be produced before the Magistrate within 24 hours.

(ix) Section 60A Cr.P.C. – This provision had been inserted by Criminal Procedure Code Amendment Act 2009, by which, it stoutly says that “no arrest shall be made except in accordance with the provisions of this Code or any other Law for the time being in force providing for arrest”.

This cumulative effect of Constitutional safeguards as well as provisions contemplated under Code of Criminal Procedure, mandate all criminal prosecution to comply with the constitutional provisions as well as provisions under Code of Criminal Procedure. 100

 

SENTENCING POLICY

In [Sevaka Perumal Vs. State of Tamil Nadu], after recording of the decision in [Mahesh Vs. State of Madhya Pradesh], the Apex Court observed that undue sympathy to impose inadequate sentence would do more harm to the Justice system to undermine the public confidence in the efficacy of law and society could not lay evidence under serious threats.

– [State of Madhya Pradesh Vs. Saleem @ Chamari and Another]

The Apex Court has held that the object of sentencing should be to protect society and to deter the criminal act that being the object of law. With regard to sentencing policy, the following judgments of the Apex Court are important.

(1) [Ravji @ Chandra Vs. State of Rajasthan]

(2) [State of Karnataka VS. Krishnappa] –

(3) [Jameed Vs. UP] (2010)12 SCC 532

(4) [Shayam Narain Vs Stone of NCT of Delhi]

CONCLUSION

Thus, the Honourable Indian Judiciary in several authoritative pronouncements contributed much in developing the concept of victimology. Hence it is right time for codifying laws to protect the rights of VICTIM.