Female Victimization In India: Recent Trends in Judiciary
Have you ever heard the statement, ‘Women feel less safe”? The most dramatic difference in feelings of safety is according to sex. No doubt, it is true that the offence ‘Rape’ is being played a critical function. More or less than a conscious process of criminal intimidation by which a man keeps a woman in a state of fear. An act that exploits or victimizes someone is known as ‘Victimization’. More of than not, an unfortunate person who suffers from some adverse circumstances is known as ‘Victim’. By and large, to state explicitly as to female victimization, if a woman who is tricked or swindled, she is a victim.
To say, in short,, speaking of Kaffir custom in Nigeria, Dudley Kidd says, ‘a woman who has twins is taunted with belonging to a disgraceful family and in the olden days, if she gave birth to twins a second time, she was killed as a monstrosity’. It is difficult to know the extent of actual female victimization in several parts of India in connection with ragging, rape, cruelty, and witchcraft. The reason is that many women suffer victimization without the case being reported to the police. The cases that are reported in the press are those that the police knew of. In some cases a woman may be killed for rape or cruelty or ragging or witchcraft and the reason for the killing is never transpired. Now-a-days, people from big cities feel less safe.
Thorsten Sellin points out that ‘ Crime arising from primary cultural conflict occurs when a colonial power extends her legal system to her colonial territories. When this happens, traditional practices which are in conflict with the criminal code of the colonial power are made illegal by the colonial government.’
Section 357A of the Code of Criminal Procedure,1973 has been incorporated in the Cr.P.C. vide Cr.P.C (Amdt.) Act,2008 (Act V of 2009) w.e.f 31-12-2009, vide Noti. No. S.O. 3313 (E), dt. 30th December, 2009. The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of Law Commission. Victims of rape, assault, child sexual abuse, drunk driving, and domestic violence, as well as the families of homicide victims, are all eligible to apply for financial help. Compensation shall be provided for any economically Assessable damage resulting from violations of human rights or international humanitarian law, such as: (a) Physical or mental harm, including pain, suffering and emotional distress; (b) Lost opportunities including education; (c) Material damages and loss of earnings, including loss of earning potential; (d) Harm to reputation or dignity; (e) Costs required for legal or expert assistance, medicines and medical services.” [see recent ruling of the Hon’ble Supreme Court of India in the case of Suresh & Anr vs State Of Haryana (2014)].
‘Victim’ – definition :-
Section 2 (wa) of the Code of Criminal Procedure, 1973 defines the word ‘Victim’. It says 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;’
A victim of rape may choose a place of her choice for recording of her statement:-
Basically, recording of the statement of victim shall be conducted at the place where the victim resides. Yet, second proviso, in section 157 (1) of Cr.P.C gives a choice to victim that she can choose any place for recording of statement. A fortiori, statement of a victim of rape must be recorded as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality. Now, it is essential to see that proviso in section 157 (1) of Cr.P.C which reads as follows:—“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.
The investigation in relation to rape of a child is time bound:-
Section 173 (1), (1A) of Cr.P.C mandates that ”the investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”; Similarly, in sub-section (2) of section 173 of Cr.P.C, clause (h) the words as reads as follows :—“ whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C, 376 D or 376E of the Indian Penal Code (45 of 1860).”.
Name of rape victim will no longer be disclosed:-
The names of rape victims will no longer be disclosed in judgments:- The Hon’ble Apex Court had taken note of this and ordered that victims’ names should be left out of judgments. Section 228A of the Indian Penal Code,1860 makes it an offence to publish the names or disclose the identities of victims of rape.
Usage of audio and video electronic means to record statement/confession of victim:-
To state explicitly, in view of new amendment, provisos in section 161 (3) of Cr.P.C provide the investigation agency to record statement of victim by audio- video electronic means. The relevant proviso reads as infra :-‘‘Provided that statement made under this sub-section may also be recorded by audio video electronic means.’’. In similar way, a proviso in section 164 (1) of Cr.P.C allows to record a statement or confession under section 164 of Cr.P.C by audio-video electronic means in the presence of the advocate of the person accused of an offence. The relevant proviso reads as under:- ”Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.” Of course, proviso, in sub-section 1 of section 275 of Cr.P.C says that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.
In Camera Proceedings:-
A proviso, in section 327 (2) of Cr.P.C says that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.”; further, sub-section (3), proviso says that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.
The victim shall have a right to prefer an appeal:-
Section 372 proviso, of Cr.P.C, the following proviso shall be inserted, namely:—
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.
A victim can engage an advocate to support her case.
A proviso, in section 24 (8) of Cr.P.C permits the victim to engage an advocate of his choice to assist the prosecution. The said provisio, reads as infra:- “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
Scheme for compensation to Victim:-
Section 357A of Cr.P.C clearly says that every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. On receipt of such recommendations or on the application under sub-section the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Why section 357A Cr.P.C is not widely being implemented?
It was informed to the Hon’ble Apex Court that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District legal authorities. It has been brought to notice of the Hon’ble Supreme Court that even though almost a period of five years has expired since the enactment of Section 357A, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the Courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.
The decisions in Nilabati Behera V. State of Orissa (1993 2 SCC 746) and inChairman, Railway Board V. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to victims of crime. In numerous cases, to do justice to the victims, the Hon’ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example, Kewal Pati Vs. State of U.P. (1995) 3 SCC 600 (death of prisoner by co-prisoner), Supreme Court Legal Aid Committee Vs. State of Bihar, (1991) 3 SCC 482 (failure to provide timely medical aid by jail authorities, Chairman, Rly. Board Vs. Chandrima Das, (2000) 2 SCC 465 (rape of Bangladeshi national by Railway staff), Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 746 (Custodial death), Khatri (I) Vs. State of Bihar (1981) 1 SCC 623 (prisoners’ blinding by jail staff), Union Carbide Corporation Vs. Union of India, (1989) 1 SCC 674 (gas leak victims).
Victim can seek interim compensation :-
The Hon’ble Supreme Court of Indian observed that interim compensation ought to be paid at the earliest so that immediate need of victim can be met. For determining the amount of interim compensation, the Court may have regard to the facts and circumstances of individual cases including the nature of offence, loss suffered and the requirement of the victim. On an interim order being passed by the Court, the funds available with the District/State Legal Services Authorities may be disbursed to the victims in the manner directed by the Court, to be adjusted later in appropriate proceedings. If the funds already allotted get exhausted, the State may place further funds at the disposal of the Legal Services Authorities. [See. Suresh & Anr vs State Of Haryana on 28 November, 2014; Bench: V. Gopala Gowda, Adarsh Kumar Goel; IN THE SUPREME COURT OF INDIA;CRIMINAL APPEAL NO. 420 OF 2012.]. The Hon’ble Apex Court observed as follows:- ”the States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful.”
As is discussed above, an unfortunate person who suffers from some adverse circumstances is known as ‘Victim’ and hence there must be some financial help for the victims especially for the victims of rape, assault, child sexual abuse, drunk driving, and domestic violence, as well as the families of homicide victims. Delay in payment of compensation to the victim should be avoided. Workshops for Public prosecutors, lawyers and judicial officers should be conducted to make section 357A of Cr.P.C more operative and meaningful. Interim compensation ought to be paid at the earliest so that immediate need of victim can be met. Special Legal Literacy Camps should be done every month to create awarness of Victim compensation. Even if the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. Disclosure of name of rape victim amounts an offence under section 228A of the Indian Penal Code,1860. It is our obligation to offer free, confidential, practical, emotional and financial support to victims of crime. If Our Government starts a separate ‘ VICTIM SUPPORTLINE’ which is a telephone helpline for victims, witnesses and family and friends of victims and witnesses, it helps a lot to the victims of crime. Charities for victim support should be established because there was little or no help on offer for victims of crime. Specialist services for the victims of crime should to established at local, and national level to help the victims of domestic or sexual violence, exploitation, anti-social behaviour, or hate crime.