Victim

What is a ‘Victim’

A victim is a person who suffers from a destructive or injurious action or agency. Moreover, a victim is someone who has been hurt, or has suffered, either because of the actions of someone or something else, or because of illness or chance.

Official Definitions of Victim

Victim as defined in Legislations

Section 2(y) of Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 2(wa) of CrPC) defines victim as "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 includes the guardian or legal heir of such victim;

The definition is expansive and includes any person suffering injury or loss due to the act or omission with which the accused was charged, including their guardian and legal heir.

Victim defined in official documents:

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 defines victims as "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that violate criminal laws operative within member states, including those laws proscribing criminal abuse of power."

The declaration further clarifies that, “a person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term 'victim' also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.”

The Criminal Law (Amendment) Act, 2008 introduced ‘victim’s new definition as the impact of the UN Declaration and the efforts of Malimath Committee. It clearly shows that prior to 2008, there was no definition of victim. There was no focus of law on victims. This definition in comparison with the definition of ‘victims’ within UN Declaration looks narrow in approach. 
The UN Declaration treats a person as a victim in two situations namely (i) victims of crime and (ii) victims of abuse of power. The first category covers those cases where injury is inflicted by any other person whereas the second category of victimization is a result of state action. But regrettably, our focus seems to be on the first category only than the second one.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA 40/34) provides the following guidelines in furtherance of the victims' rights of access to justice, restitution, compensation and protection from abuse of power:

1. Victims should be treated with compassion and respect for their dignity.
2. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
3. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
4. Victims should be informed of their rights in seeking redress through such mechanisms.
5. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.
6. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants.
7. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.
8. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.
9. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.
10. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

Victim defined in government report

The Government Report titled ‘Guideline & Protocols - Medico-legal care for survivors/victims of sexual violence,’ issued by the Ministry of Health and Family Welfare, defines a person suffering harm including those who are subjected to non-consensual sexual act which could be sexual assault, rape or sexual violence. It also means a person requires compassion, care, validation, and support.

The 154th Law Commission Report (1996) addressed the “need for victim oriented approach to justice delivery system and recommended that the needs and rights of victims of crime should receive priority attention in the total response to crime”. It was also noted in the Report that “at present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system.

The Justice Malimath Committee Report (2003) identified ‘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.

• In case the victim died, his or her legal representative, shall have the right to challenge as a party in every criminal proceedings, where the offence is punishable with seven years imprisonment or more;
• In selected case, with the due permission of the court, an approved voluntary organization shall also have the right to implead in court proceedings;
• The victim has a right to be represented by an advocate and in case, the victim cannot afford a lawyer, the state has liability to provide with prosecutor;
• The victim’s right to participate in criminal trial shall include the right to produce evidence; to ask queries to the witnesses; to be informed of the status of investigation, to be heard on issues relating to bail and withdrawal of prosecution; and to advance arguments after the submission of the prosecutor’s arguments;
• The right to incline toward an appeal against any adverse order of discharge of accused, sentencing for a lesser offense, granting insufficient sentence, or giving insufficient compensation;
• Legal services to victims may be extended to include psychiatric and medical help, interim compensation, and protection against secondary victimization;
• It suggests a Victim Compensation Law, which will be administered by the Legal Service Authority in respect of providing with Victim Compensation Fund.

Legal Provisions related to Rights of Victims

Statutory Rights

1. A victim is permitted under section 18(8) of BNSS (section 24(8) of Cr.P.C) to engage an advocate of his/her choice to assist the prosecution. However, the Advocate’s power is limited, and he may only present written arguments after the evidence has been recorded unless the court grants permission.
2. A Victim at the stage of filing the First Information Report as under section 173 of BNSS ( section 154 of Cr.P.C) is entitled to get the copy of the information as recorded to be given forthwith, free of cost.
3. In cases of offences under section 64 to 71 and 74 to 79 and 124 of Bharatiya Nyaya Sanhitha, 2023 the victim’s statement has to be recorded by a woman police officer.
4. In case the victim is mentally or physically disabled temporarily or permanently, such information has to recorded at the residence of victim or at a convenient place of victim’s choice and in the presence of a interpreter or special educator.
5. As under section 173 of BNSS, the victim can also give the information by electronic communication and it shall be taken on record by the officer in charge of a police station on being signed by the informant within three days of giving it.
6. If the officer in charge refuses to record such information given by the victim, the same can be sent to the Superintendant of police concerned and in case if the information is still not recorded, the victim can make an application to the Magistrate.
7. In case the officer in charge of a police station chooses to file a final report closing a case, a notice has to be issued to the victim/informant informing about the closure.
8. As under section 339 of BNSS (section 302 of Cr.P.C) the court can permit an advocate on behalf of the victim to conduct the prosecution.
9. The Victim has the right to prefer an appeal against the order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation under section 413 of BNNS, (Section 372 of Cr.P.C)
10. The Court at the time of imposing a sentence, of which fine does not form a part, the court may when passing judgment, order the accused to pay , by way of compensation, such amount as may be specified in the order to the victim (person who has suffered any loss or injury by reason of the act for which the accused is sentenced) as under section 395 of BNSS (section 357 of Cr.P.C). At the time of awarding the compensation in any other subsequent suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under section 395 of BNSS.
11. The Court can also order payment of reasonable expenses of the complainant/victim attending for the purposes of any inquiry or trial or other proceedings before the court under section 350 of BNSS (section 312 of Cr.P.C)
12. In camera proceedings are allowed under BNSS for the purpose of safeguarding the Victim and her identity in specific offences. The trial of offences under section 64 to 68 and section 70 and 71 of BNS, 2023, and section 4,6,8 or section 10 of the Protection of Children from Sexual Offences Act, 2012, shall be conducted in camera by a women judge or magistrate under section 366 of BNSS (section 327 of Cr.P.C)
13. Under Section 154 and 155 of Bharatiya Sakshya Adhiniyam, 2023 (section 151 and 152 of Indian Evidence Act), the Court has the power to forbid questions which it regards as indecent or scandalous and intended to insult or annoy to be put to victims and other witnesses.
14. Section 15A of SC-ST (Prevention of Atrocities) Act, 1989 provides that it shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence. Moreover, it asserts that a victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age, gender, educational disadvantage or poverty. With regards to the victim's dependents, it stipulates that they are entitled to a notice from the court about hearings and appeals, and to be heard at any proceeding under the Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
15. Section 74 of Juvenile Justice Act, 2015 stipulates that "No report in any newspaper, magazine, news-sheet, audio-visual media or other forms of communication regarding any inquiry, investigation, judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published."
16. The Protection of Children from Sexual Offences Act, 2012 provides for protection of identity of child victims and for payment of compensation as may be prescribed to the child victims for any physical or mental trauma caused to him/her or for immediate rehabilitation.
    • Section 23 prohibits reporting on a child victim (in a way that lowers its reputation/infringes upon its privacy) or disclosing its details
    • Section 27: In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
    • Section 36: The Special Court shall ensure that the child is not exposed in anyway to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.
    • Section 37: Trials to be conducted in camera.—The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.
    • Section 39: Model Guidelines framed by the Ministry of Women and Child Development relating to right to claim the assistance of support person for child victims under POCSO Act.

Compensation

For detailed understanding of provisons related to victim compensation. Visit the wiki page on Victim Compensation

Victim as defined in caselaws

• In Ram Phal v. State the Hon’ble High Court of Delhi has considered the scope of definition of victim and summarized that ‘victim’ as defined under section 2 (wa) Cr.PC must include “a person who has suffered harm caused to the mind”. The legal heirs which are included within the definition of the ‘victim’ cannot be exempted because of emotional damage suffered by the victim.

• In Delhi Domestic Working Women’s Forum v. Union of India,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.
• In Rekha Murarka v. State of West Bengal Ors., the Apex court has ruled that “victim can engage a lawyer to represent him/her in a criminal trial but the lawyer wouldn’t have the right to examine a witness or advance arguments in courts”.
• In Mallikarjun Kodagali (Dead) v The State of Karnataka, the Court recognized that under the criminal justice system, the rights of the accused prevail over the rights of the victim. The Supreme Court called not limiting to the introduction of a victim impact statement in order to guarantee participation of the victim in the trial proceedings, but also reinstated the victims right to appeal against an adverse order made in any suit.
• The Hon’ble Supreme Court of India in Nipun Saxena And Another Vs. Union of India and others while dealing with the question of protection of identity of adult victims of rape and children who are victims of sexual abuse, laid following directions:
  1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
  2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
  3. FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
  4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
  5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinized in the public domain.
  6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
  7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(2)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
  8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
  9. All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.