 Imtiyaz Ahmad v State of Uttar Pradesh, AIR SC 2012 642- access to justice is a

fundamental right.—Supreme Court held that the High Court cannot abuse its
constitutional power to stay criminal proceedings.-----It will be injustice to victim.-
--If suppose the High arbitrarily quash the criminal proceedings, and later Supreme
Court ask for initiate fresh trial, the accused persons cannot claim double jeopardy.
 Similarly, the public prosecutor cannot withdraw the criminal case arbitrarily.

 The judiciary protected the rights of the victims of abuse of process while
discarding the irrelevant contentions of the State. The courts awarded exemplary
damages in cases of custodial torture, rape, custodial death, violation of accused
rights, etc. It was done in landmark judgments including Rudul Shah (imprisoned for
14 years even after acquittal orders), Nilabati Behra (body of a arrested boy was
recovered from the railway track—case of custodial death) , Chandrima Das(foreign
national was gang raped at railway station—vicarious responsibility of the State),
D.K Basu(rights of arrested persons were recognised), Bhim Singh (wrongful
detention of the legislator—restricted him from attending the legislative session), etc.

 The amendments to the Cr.P.C. in 2008 recognised the rights of victims in the
criminal justice system. Under Section 357A, the Court is empowered to direct the
State to pay compensation to the victim where the compensation awarded under
Section 357 is not adequate for his or her rehabilitation. “Under this provision, even if
the accused is not tried but the victim needs to be rehabilitated, the victim may request
the State or District Legal Services Authority to award him/her compensation. This
provision was introduced due to the recommendations made by the Law Commission
of India in its 152nd and 154th Reports in 1994 and 1996 respectively.”1
In Hari Singh v. Sukhbir Singh,2 the Supreme Court said that the courts have failed in
awarding compensation to the victims in terms of Section 357 (1) of the Cr.P.C. The Court
directed all the courts to exercise their power under Section 357 of the Cr.P.C. liberally in
order to ensure justice. The Court said:
[S]ub-section (1) of Section 357 provides power to award compensation
to victims of the offence out of the sentence of fine imposed on
accused… It is an important provision but Courts have seldom invoked

1
Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770
2
(1988) 4 SCC 551.
 it. Perhaps due to ignorance of the object of it. It empowers the Court to
award compensation to victims while passing judgment of conviction.
In addition to conviction, the Court may order the accused to pay some
amount by way of compensation to victim who has suffered by the
action of accused. It may be noted that this power of Courts to award
compensation is not ancillary to other sentences but it is in addition
thereto. This power was intended to do something to reassure the victim
that he or she is not forgotten in the criminal justice system. It is a
measure of responding appropriately to crime as well of reconciling the
victim with the offender. It is, to some extent, a constructive approach to
crimes. It is indeed a step forward in our criminal justice system. We,
therefore, recommend to all Courts to exercise this power liberally so as
to meet the ends of justice in a better way.3
The amount of compensation depends upon the facts and circumstances of each case,
the nature of the crime, the capacity of the accused to pay, etc.
The Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra,4 said that the
trial Court and the High Court ignored the provisions of Section 357 Cr.P.C. The court said
that they failed to perform their statutory duty under the provision. The court asked the courts
to be careful in future about the said provision.
It is submitted that the trial courts should not forget to perform its statutory obligation
to award adequate compensation to the victim of crime.
The Hon’ble Supreme Court in Delhi Domestic Working Women’s Forum v. Union of
India5 directed the National Commission for Women to make an effective scheme in order to
rehabilitate the victims of rape. The Supreme Court said that Article 38(1) of the
Constitution, as a directive principle, obliges the State to set up Criminal Injuries
Compensation Board, which would assist the rape victims financially. The Court further
directed that compensation for victims shall be awarded regardless of this fact that whether
the culprit was convicted or not. The Board, as the court directed, should consider pain,
suffering and shock while awarding the compensation. The court further directed that proper
legal representation should be given to the victim and complainant. Efficient advocate would
be engaged on her behalf. Before asking any question to the victim of sexual assault, the

3
Cited in Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770.
4
(2013) 6 SCC 770.
5
(1995) 1 SCC 14.
police is under the obligation to inform the victim about her right to representation. It is
further ordered by the court in this case that the identity of the rape victim and her family
members should be kept confidential.
While exercising powers under Article 142 of the Indian Constitution, the Supreme
Court of India in State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari
Shivanna6 issued interim directions to all the police station in charge in the entire country
which are as follows:
(i) The Investigating Officer shall take the rape victim, immediately after the
report of the crime, to Judicial Magistrate so that the statement under Section
164 Cr.P.C should be recorded. The investigating officer having the copy of
the recorded statement should keep the confidentiality of the whole content
until charge sheet/report under Section 173 Cr.P.C. is filed.
(ii) As far as possible, the statement under Section 164 Cr.P.C should be recorded
in front of Lady Metropolitan/ Lady Judicial Magistrate.
(iii) It is the duty of the Investigating Officer to record the complete detail of
reporting of the offence of rape and taking the victim to the magistrate.
(iv) Victim should be taken to the magistrate within 24 hours after reporting of the
crime. Investigating officer is responsible for explaining the delay in taking
the victim to the Magistrate.
(v) Rape victim should be medical examined immediately. A copy of the report of
such medical examination should be immediately handed over to the
Magistrate who records the statement of the victim under Section 164 Cr.P.C.
In State of Punjab v. Gurmit Singh7 the Supreme Court of India acknowledged the
significance of provisions of Section 327(2) and (3) Cr.P.C.8 The court directed all the courts
to follow these provisions strictly and to hold the trial of rape cases in camera. The court
observed that privacy would make the victim comfortable while answering the questions. It

6
Special Leave Petition (Crl.) No. 5073/2011, decided on April 25, 2014.
7
AIR 1996 SC 1393
8
Sub-sections 2 and 3 of Section 327 Cr. P.C. provide as follows :
Section 327. Court to be open - (2) Notwithstanding anything contained in sub-section (1), the inquiry into and
trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of
the Indian Penal Code shall be conducted in camera :
Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow
any particular person to have access to, or be or remain in, the room or buildingused by the Court. (3) Where
any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any
matter in relation to any such proceedings, except with the previous permission of the Court."
would improve the quality of evidence of a prosecutrix. It is also important that such cases
should be tried by lady Judges.
In addition to Gurmit Singh’s9 case, the Supreme Court in Sakshi v. Union Of India10
said that the victim or witnesses should be provided with such an arrangement in court room
where they do not see the body or face of the accused. Questions to the victim or witnesses
should be put in dignified manner. The language should not be embarrassing.

9
AIR 1996 SC 1393
10
AIR 2004 SC 3566.