Please - Odhikar

ecomes extremely difficult to get a witness and provide protection to him/her. The same is
applicable if the State is the offender. The victim and witness are often pressurized and it
becomes extremely difficult to provide appropriate evidence.
The jurisprudence of compensation to victims of crime found expression in the 1960's in the
West. In India, the jurisprudence of victim's rights is emerging very gradually, with
compensation to the victim at the fore, breaking ground for the inclusion of various other rights
like those required for reparation and restitution. The United Nations Commission on Prevention
of Crime at the 7th U.N. Congress at Milan in 1985 adopted a Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power.
In India, a victim has a marginal focus in the criminal justice system, in which arrest,
prosecution and punishment are effectuated by the State. The police, therefore, investigate the
offence alleged to have been committed and charge the accused on its own discretion without
any participation from the victim. Pursuant to this, the accused is tried, and if proven guilty
he/she is penalized by the Court. Even at this stage the victim is not given any opportunity for
expression on matters related to bail, quantum of sentence, and appeal against inadequacy of
sentence or of acquittal. There is a need therefore, to increase the level of participation of the
victim in the criminal justice system not only for the well being of the victim but also to achieve
the larger goal of criminal justice.
The provisions in the Code of Criminal Procedure, minimal in scope but relevant for a
victim are as follows:
Section 357 Makes provision for the compensation of the victim for the loss or injury suffered
by him/her.
Section 301(2) States that a private person may appoint his/her own pleader to prosecute any
person in any court, but the pleader can act only under the directions of the State Public
Prosecutor or Assistant Public Prosecutor. The pleader can submit written arguments with the
permission of the Court after the evidence is closed in the case. This provision needs to be
amended to provide the victim the right to appoint his/her own pleader who may function
independently as prosecutor.
Section 377: Provides the right to appeal against the inadequacy of sentence to the State and the
complainant has no say in the matter.
Section 378: Gives the complainant the right to appeal if the case was instituted upon complaint
and special leave by the High Court is obtained. This provision has not been made for
proceedings initiated on a police report.
Section 401(1): Provides that the complainant may invoke revisional jurisdiction to the High
Court or Court of Session.
Section 235(2) & 248(2): Provides the accused on conviction, with the opportunity to be heard
on the question of sentence, before passing a sentence on him according to law. The victim does
not have right to be heard on the question of sentence to be passed on the accused.
It is clear from the above provisions, that the victim has an inadequate degree of participation in
the criminal justice system.
172
Report 2005