Victims’ Rights Clauses 173, 193, 230 and 360

Victims’ Rights Clauses 173, 193, 230 and 360

Victim-centric reforms in the Indian criminal justice system have generally been in the form of three rights, participatory rights, right to information, and right to compensation for the harm suffered. The 154th Law Commission Report (1996)67 and the Justice Malimath Committee Report (2003)68 identifi ed ‘justice to victims’ and victimology as crucial areas of reform and made recommendations, focussing on increasing victims’ participatory role and for better compensatory justice. These recommendations were incorporated by amendments such as the Code of Criminal Procedure (Amendment) Act, 2008 (‘Amending Act’), to strengthen the existing framework of victims’ rights. Thus, the extant structure of criminal law has been largely geared towards participatory and compensatory rights. Reforms proposed in the BNSS build on this structure by primarily incorporating rights to information for the victim at various stages of the criminal procedure (see Cls.173, 193 and 230); and adding another participatory right through Cl.360. In addition to this, the practice of recording Zero FIRs has been institutionalised under Cl.173 BNSS whereby complainants may fi le an FIR, irrespective of the area where the offence was committed. I. Participatory Rights Participatory rights, or rights which provide the victim a say in the criminal process through the opportunity of hearing before a court, were incorporated into the criminal legal system principally through the Amending Act. The Amending Act introduced s.2(wa) CrPC which, for the fi rst time, defi ned ‘victim’. The defi nition was expansive and included any person suffering injury or loss due to the act or omission with which the accused was charged, including their guardian and legal heir. S.321 CrPC was also amended to grant the victim the 68 Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report, Volume 1 (2003). 67 Law Commission of India, ‘One Hundred and Fifty Fourth Report on the Code of Criminal Procedure, 1973’, (Law Commission of India Report No. 154, 1996).  right to appeal against an order of acquittal, conviction for a lesser offence or inadequate compensation. This participatory right is made meaningful by amending s.24(8) CrPC, which provides that courts may permit victims to engage an advocate to assist the prosecution. Further, for sexual offences the Amending Act introduced the right of the victim to have her statement recorded at her residence or in a place of her choice, by a woman police offi cer, in the presence of her parents, guardian, relatives or social worker. While the CrPC already provided for an in camera trial for such offences, the Amending Act introduced a proviso to this section providing that such a trial, as far as practicable, must be conducted by a woman judge or Magistrate. The privacy of the victim is also protected by prohibiting the publication of trial proceedings without the permission of the court and subject to maintaining the confi dentiality of the name and address of parties. On the front of compensatory justice, s.357 CrPC empowers the court to order compensation to be paid to the victim by the accused, upon conviction. The Amending Act introduces s.357A CrPC which directs State Governments to set up victim compensation schemes. The District or State Legal Services Authority is vested with the power to decide the quantum of compensation and to order free fi rst aid facility, medical benefi ts or any other interim relief. This framework of rights has also been expanded by the judiciary on multiple occasions. For instance, s.439(2) CrPC which mandates the presence of the informant or any person authorised by him, at the time of hearing of the bail application, was extended to include victims who come forward to participate in a criminal proceeding.69 The Court observed that the victim's rights are independent, incomparable and not auxiliary to those of the State; she has a legally vested right to be heard at every step post the occurrence of an offence. Her participatory rights are described as unbridled from the stage of investigation till the culmination of the proceedings. Further, in Saleem,70 the Delhi High Court sought to balance the participatory rights of the victim with the mandate to keep her identity confi dential in cases of sexual offences, and held that the right to be heard does not entail a requirement to implead the victim (since such impleading could result in revealing the identity of the victim). S.439(1A) was also expansively interpreted to include the victim’s right to be effectively heard in anticipatory bail petitions as well as accused’s petitions seeking suspension of sentence, parole, 70 Saleem v. State (NCT of Delhi) (2023) 2023 SCC OnLine Del 2190. 69 Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321.  furlough or other such interim relief. Further, the court noted that it may appoint legal-aid counsel when necessary; mere ornamental presence of the victim without being effectively heard, would not suffi ce. A lacuna, in this regard, remains s.321 CrPC. It allows the prosecutor to withdraw the prosecution of a case, at any time before the judgment is pronounced, with the consent of the court. Neither CrPC allows the victim to be heard at the stage, nor have the judicially enunciated principles translated into reality for the victim.71 Through Cl.360, however, BNSS plugs this lacuna. Cl.360 largely mirrors s.321 CrPC, with the addition of one important proviso that the victim must be heard before such withdrawal is allowed. This is a signifi cant recognition of the victim as a stakeholder in the criminal trial. II. Right to Information The victim’s right to information has been expanded in the BNSS in three ways. Firstly, the victim has been granted the right to receive a copy of the FIR free of cost.72 This is a crucial information right, since the FIR is an important piece of evidence that forms the basis for the trial. Secondly, Cl.193(3) BNSS requires the police to inform the victim of the progress in the investigation within ninety days and therefore allows the victim to be aware of possible lapses and delays in the investigation. At the same time, there exists no statutory mechanism for victims to hold the police accountable or seek redressal for such lapses or inordinate delays in investigations, which ultimately limits the utility of the right. Thirdly, Cl.230 BNSS provides victims with a crucial right to information about the details of their case through the mandatory provision of the police report, FIR, witness statements, etc., which is meant to enable effective and meaningful participation of the victim in the criminal process. However, the rights under Cls.193(3) and 230 are available to victims only if they are represented by an advocate. While s.24(8) CrPC allows for victims to engage an advocate of their choice, the actualisation of this right becomes diffi cult for victims who are socio-economically disadvantaged and cannot afford to engage an advocate of their own. Thus, in the absence of a vested right to free legal aid and assistance for victims, a large portion of victims will not have recourse to these rights. 72 Cl.193(3) BNSS. 71 State of Kerala v. K. Ajith 2021 SCC OnLine SC 510.  In Delhi Domestic Working Women’s Forum,73 the Supreme Court emphasised the importance of legal representation for victims of rape at every stage of the process - to support her while she is being questioned, explain the nature of the proceedings, prepare her for the case, assist her in the police station and help her seek relief from various agencies. Yet, no centralised mechanism has been created to implement this. While the BNSS has enshrined important rights to information, the intended purpose of these information rights, which is to ultimately enable active and meaningful participation in the criminal process, may not be achieved in the absence of a corresponding system of free legal aid. Further, s.157(2) CrPC requires the police to notify the informant about the fact that he will not be investigating the case, if he does not fi nd suffi cient grounds to investigate the case. No amendment has been proposed in the BNSS to expand this right to the victim. However, it is likely that judgments which have judicially extended informants’ rights to the victim in other instances will guide the interpretation of this clause as well.74 III. Other Rights The BNSS has institutionally recognised the right to register Zero FIRs under Cl.173.75 Therefore, the Bill prohibits the police from using a lack of territorial jurisdiction as a reason to avoid their duty to record fi rst information and helps to eliminate one of the hurdles faced by victims in registering an FIR. While being an important safeguard, this is not an innovation of the BNSS and has been previously mandated by the Central Government76 and substantially enforced by the judiciary in various instances.77 In Lalita Kumari, the Supreme Court held that the police have a mandatory duty to register an FIR when the information given discloses a cognizable offence.78 Despite multiple judicial pronouncements of this nature, non-registration of FIRs remains a pervasive issue that needs to be addressed by 78 Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1. 77 State of Andhra Pradesh v. Punati Ramulu 1994 Supp (1) SCC 590; Kirti Vashisht v. State 2019 SCC OnLine Del 11713. 76 Ministry of Home Affairs, ‘Advisory on comprehensive approach towards crimes against women’, No. 5011/22/2015 - SC/ST - W, 12 May 2015. 75 Cl.173 BNSS. 74 Jagjeet Singh; Saleem. 73 Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14 [15].  the State.79 Therefore, if it becomes the law, it remains to be seen if the BNSS will actually address this concern. Further, despite the judicial recognition of the right to compensation,80 victims have been inadequately and inconsistently compensated by the courts81 and through state victim compensation schemes.82 At the same time, beyond monetary compensation, the need for rehabilitation of victims has also been judicially recognised. For instance, in Mallikarjun Kodagali,83 the Court has highlighted the importance of facilities like psychosocial support and counselling to victims, depending on the nature of the offence. These suggestions do not fi nd a place in the scheme of CrPC or BNSS. 83 Mallikarjun Kodagali v. State of Karnataka (2019) 2 SCC 752. 82 Tekan Alias Tekram v. State of Madhya Pradesh (2016) SCC OnLine 131; Gang-Rape Ordered by Village Kangaroo Court in West Bengal, In re, (2014) 4 SCC 786. 81 Hari Singh v. Sukhbir Singh (1988) 4 SCC 551; Utkarsh Anand, ‘No Compensation for 99% Minor Rape Victims: SC Fumes Over National Survey’ (CNN-News18, 15 November 2019), last accessed on 11.09.23. 80 Dr. Jacob George v. State of Kerala (1994) 3 SCC 430; Maru Ram v. Union of India (1981) 1 SCC 107. 79 Ramesh Kumari v. State (NCT of Delhi) (2006) 2 SCC 677; Aleque Padamsee v. Union of India (2007) 6 SCC 171; Lallan Chaudhary v. State of Bihar (2006) 12 SCC 229.  Conditions Requisite for Initiation of Proceedings – Cognizance Clauses 210, 218, 223 Judicial response to a crime, or ‘initiation of proceedings’, begins with the act of taking ‘cognizance’ of the alleged crime by a Magistrate. It is a morally and procedurally signifi cant stage in the criminal trial, where a judicial offi cer, and thus the court, offi cially becomes aware of the commission of an offence. Cognizance is the precursor to ‘initiation of proceedings’, whereby a summons or warrant is issued against the accused and charges are framed, while also marking the end of the investigation. The BNSS proposes three signifi cant changes to the operation of cognizance proceedings. Firstly, it relaxes the precondition of government sanction for taking cognizance in cases involving public servants such as judges (Cl.218). This is a laudable development that brings the legislative provision in consonance with case law. Secondly, it creates an opportunity for the accused to be heard at the stage of cognizance in private complaint cases (Cl.223), and thirdly, it specifi cally provides for cognizance based on complaints fi led under special laws (Cl.210). These two changes, however, raise concerns about their possible implications. I. Background: Procedure for Cognizance S.190 CrPC enumerates the situations in which the Magistrate may (and ‘must’)84 take cognizance of an offence. The fi rst scenario relates to cases involving commission of cognizable offences, where the police can begin investigation and arrest the accused without permission from the court, and are generally considered to be more ‘serious’.85 The police investigates the commission of the alleged offence after registration of an FIR, with or without arresting the accused, and at the end of the investigation, submits a report to the Magistrate. This report 85 S.2(c) CrPC states that an offence that is punishable with death, imprisonment for life, or imprisonment for more than three years shall be cognizable. 84 Umer Ali v. Safer Ali Calcutta High Court, judgment dated 19.08.1886: The Magistrate has no discretion in whether to take cognizance; if the materials prima facie disclose the commission of a criminal offence, the Magistrate must take cognizance.