Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071
Received: 30 April 2023
Accepted: 16 November 2023
*Corresponding author: Megha
Nagpal, Symbiosis Law School,
Symbiosis International, Deemed
University, Pune, India
E-mail: megha.nagpal@symlaw.edu.in
Reviewing editor:
Samuel Adu-Gyamfi, History and
Political Studies, Kwame Nkrumah
University of Science and
Technology College of Arts and
Social Science, Ghana
Additional information is available at
the end of the article
Megha Nagpal
HISTORY | REVIEW ARTICLE
Tracing journey of crime victim’s position under
Indian law with evolutionary insights from the
United States’ federal code on victims’ rights
Megha Nagpal1* and Chandrashekhar Rawandale1
Abstract: In India, the inclusion of victims in the criminal process started slowly
with the 1973 Criminal Procedure Code providing for victim compensation from fine
imposed on the offender. It has since traversed a patchy path with the major
reforms introduced in legislation post recommendations in the Malimath
Committee Report and the 2009 Amendment to the Code. The present paper high­
lights crime victim’s position in the Indian Criminal Justice System tracing the
evolutionary development of victim justice in India highlighting its reasons and
progress while contrasting with that in the United States of America. It brings to
light that victim rights in both common law countries have essentially been a result
of social movements having the effect of visible changes in legislation. The paper
reviews the literature on victims’ rights in a semi-structured method based on
thematic analysis by dividing literature into dominant themes: victims’ informa­
tional rights, participation rights, and restitution. The paper concludes that though
Indian Supreme Court and Law Commission of India recognise the importance
attached to crime victim’s role in the formal process, yet concrete rights for the
victim have only been achieved in a limited sense.
Subjects: Criminal Law & Practice; Criminology - Law; Socio-Legal Studies
Keywords: crime victim rights; Indian criminal justice system; criminal procedure; victim
justice; victim participation rights
ABOUT THE AUTHOR
Megha Nagpal is assistant professor and Ph.D. Scholar at Faculty of Law, Symbiosis International
(Deemed University). This paper is part of her Ph.D. research on crime victims and their inclusion in
the criminal process in India. Her research is under the guidance of Dr C.J Rawandale, professor and
director at Symbiosis Law School, Noida. The research brings out the aspects of victim participation and
support under the current Indian criminal procedural law and particularly the compensatory jurispru­
dence and implementation in India. The research has adopted a hybrid methodology in achieving its
objectives inclusive of functional comparisons with adversarial and inquisitorial systems for victim
inclusion and empirical method to study implementation of the compensation schemes. The present
paper highlights the evolutionary aspects of victim inclusion. Through their works, both individual and
collaborative, the authors exhibit the relationship of law and society, and use of technology in further­
ing this relationship. Ms. Nagpal has also recently completed an empirical research project on
‘Disability, Language and Procedural Law’ with a focus on Delhi.
© 2023 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution
License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribu­
tion, and reproduction in any medium, provided the original work is properly cited. The terms on
which this article has been published allow the posting of the Accepted Manuscript in
a repository by the author(s) or with their consent.
Page 1 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

1. Introduction
In 1985, the first international document on victims’ justice, the Declaration on Victim Justice, was
adopted by the United Nations General Assembly (1985).1 Designed to assist governments and the
international community in their efforts to secure justice and assistance for victims of crime and
victims of abuse of power (UN Declaration, para 3), the Declaration is cognizant that the rights of
victims of crime (and abuse of power) have not been adequately recognised (UN Declaration,
Preamble, para 2). The Declaration recognises four categories of right for victims of crime, namely,
access to justice and fair treatment, restitution, compensation, and assistance. Decades later, it
would not be wrong to say that crime victim in the Criminal Justice System has travelled from
being treated only as a witness to an offence, to a participant in the criminal process. In fact, many
jurisdictions now recognize rights for this stakeholder through legislation including in the United
States of America and some even incorporated in Indian legislation and through interpretation by
the Supreme Court of India in various judgements.

2. Emergence of victims’ rights in India and the United States of America

The United States’ Congress passed the Crime Victims’ Rights Act in 2004 that recognises and
affords rights to victims of federal criminal offences. On the other hand, Indian law incorporates
rights of crime victims through legislation, mainly the Code of Criminal Procedure, 1973,2 and
precedents of the Supreme Court upon interpretation of statutory language in view of objectives of
legislative amendments and recommendations of the Law Commission of India. The additions to
the existing legislation and even creation of new rights for crime victims were influenced by social
factors developed through activism and advocacy. Both countries have written constitutions
affording constitutional/fundamental rights to the accused persons. What is also similar for both
countries is the influence of women’s movement, though in varying degrees, that has played a role
in bringing about policy and legislative changes in recognition of women victims in particular and
crime victims in the criminal process. Incidents of sexual assault and domestic violence brought
women’s lack of power and status to forefront of the victimological movement in the United States
of America3 (Friedman, 1985).4 This contributed towards special care and support mechanisms put
in place for rape and domestic violence victims. Although dissatisfaction of victims and witnesses
with the courts system and criminal justice officials has been identified as an important contri­
butor for the governmental attention towards victims especially in the form of victimization
surveys, yet the contribution of the women’s movement in recognition of victims’ rights cannot
be sidelined (Friedman, 1985).5 The victims’ rights movement in the US has also been said to have
received considerable impetus with the publication in 1982 of the Report of the President’s Task
Force on Victims of Crime (Cassell, 2005). Both India and the USA are common law countries that
have seen changes in the role of the victim over the course of decades. The Indian law introduced
the punishable offence of “cruelty by husband and in-laws” and “dowry death” in its penal code in
1980s as a response to violence towards married women in their matrimonial home. The changes
aimed at protecting women from cruelty owing to their inability to meet monetary/dowry
demands of the in-laws. This was further expanded with the Prevention of Women from
Domestic Violence Act 2005 introduced with the objective of providing immediate relief to
women sufferers. These legislative changes also introduced support mechanisms in the form of
counsellors at police stations (TOI, 2016 and HT, 2021), protection officers for victims of domestic
violence (Protection of Women from Domestic Violence Act, 2005, section 9), and one stop centres
for victims of sexual abuse (NIC, 2023). The first US household victimisation survey conducted in
1966 by the President’s Commission on Law Enforcement and Administration of Justice revealed
higher estimated crime rates than the ones reported through the Uniform Crime Reports (Manikis,
2019). To encourage crime reporting, the response was a supplementary system of governmental
compensation for unrecovered losses (Manikis, 2019). Feminist movement contributed to the
origins and development of victim’s rights movement in the USA (Gruber, 2007). Poor govern­
mental resources to support women victims of domestic violence led to organisation of the
women’s movement to focus on improving criminal justice system’s responses to their sufferings
(Manikis, 2019).6

Page 2 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

In India, the Nirbhaya incident was the reason for setting up of Justice J.S. Verma Committee
that recommended substantive as well as procedural changes in criminal law. The Nirbhaya
incident was the brutal gang-rape and torture of a 23-year-old woman in Delhi in
December 2012 (TOI, 2019). The Verma Committee set up by the Indian government was in
response to peaceful public outcry for a safe and dignified environment for women in the country
(Verma Committee, 2013). Prior to this major change in Indian criminal law, the 2009 Amendment
to the CrPC had added “victim’s” definition and introduced the mandate of State Victim
Compensation Schemes. These changes occurred as a result of sustained advocacy for women’s
safety in light of increased occurrences of acid throwing on women, most prominent amongst
which was attack on a 15-year-old girl, Laxmi in 2005. Laxmi suffered severe burns and face
disfigurement due to attack with acid on her for having rejected a marriage proposal. In 2006,
Laxmi filed a public interest litigation in the Supreme Court of India praying for regulation of and
restriction on sale of acid and other corrosive substances in the country, and recognition of acid
attack as a separate offence with necessary amendments in the Indian Penal Code and the Indian
CrPC (Laxmi’s, 2006). Further similarity is found in the response to such incidents. In the USA, the
early response of the system was establishment of Victim Assistance Programmes though varied in
their focus (Friedman, 1985). India’s early response was twofold; one, through use of statutory
provision of compensation for crime victims, and other, through a better sensitised response of
investigating agencies and Courts towards rape victims. The parameters issued for assistance of
rape victims like that of legal representation, protection of anonymity, assistance at police station
and compensation, by the Supreme Court in Delhi Domestic Working Women’s Forum v. Union of
India & Ors., [(1995) 1 SCC 14] evidence the initiation of India’s better response.

The introduction of victim-oriented perspective in Indian CrPC for victims of all crimes was first
proposed by the Law Commission of India in its 154th Report (Law Commission of India, 1996,
p. 64). Recognizing the limited role ascribed to victim in the criminal process, the Malimath
Committee Report of 2003 further recommended expansion of victim’s rights. The report inter
alia recommended measures for prevention of secondary victimization, engagement of victim
advocate with limited role, and a suitable legislation furthering state’s obligation of delivering
justice to victims fairly and quickly including state compensation (Malimath Committee, 2003,
paras 6.7.7, 6.7.8, 6.8.8, pp 79–81). The objects and reasons for the 2009 amendment to the
criminal procedure code in India recognized the recommendations inter alia relating to victimology
made by the LCI in its 154th report to be one of the reasons for introduction of victim’s definition
vide the amendment. The statement on objects and reasons further noted that presently victims of
crime had limited role in court proceedings and thus, they were worst sufferers in a crime. This
amendment also introduced victim’s right of appeal and state schemes for compensation for
rehabilitation of crime victims.

3. Victims’ participatory rights

In advocating for greater participation for victim in the criminal process, Schünemann (1999)
presented a three-tiered role for victim within the adversarial system of criminal adjudication.
He observed that in all legal systems upon the establishment of an official prosecution, victim’s
role was reduced to that of a witness (Schünemann, 1999, p. 40). The three tiers proposed by him
were victim’s role as a subject of prevention of social harm, victim as a party to criminal trial, and
restitution. Alongside the discussion in foreign lands, at home the report of the Committee on
Reforms of Criminal Justice System, appointed by the Ministry of Home Affairs, Government of
India,7 recognised that reforms in the Criminal Justice System needed to focus on justice to
victims. The report highlighted that the system is “utterly insensitive to the rights of the victim”
(Malimath Committee, 2003, para 1.36, p 20). The victim whose rights are invaded by the accused
is not accorded any right to participate except as a witness. It was inter alia recommended for the
need for courts to focus on finding the truth and a strong victim orientation (Malimath Committee,
2003, para 22.6, p 254). Enhanced participation of victim in the criminal trial through production of
evidence, asking or suggesting questions to be asked of the witnesses, right to know status of
investigation and to be heard in the grant and cancellation of bail were other recommendations

Page 3 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

(Malimath Committee, 2003, para 14(iv), pp 270–271). Further, recognising the imbalance in the
legal representation of both sides, i.e., prosecution and defence, due to diminished interest and
calibre of the prosecution, even a right of victim to be represented by an advocate of her/his choice
was spoken of (chapters 6 & 14). The Malimath Committee also recommended a separate legisla­
tion for victim compensation (Malimath Committee, 2003, para 14(vii) &; (viii), p 271).

In talking of victims and their rights, victims’ groups and policy makers have frequently invoked
the notion of balance. Victim’s position is argued to be relevant in the criminal process because
defendant’s position is relevant therein. Victim participation in criminal justice system has
emerged either as a response to victims’ needs as part of service delivery or places victim at the
centrestage as a rhetorical figure. Whereas the former approach gives victims opportunity to “have
their say”, the latter approach has led to introduction of mandatory minimum sentences in some
systems, for example, England and Wales. The metaphor of balance on which victim participation
rests in criminal justice systems assumes a duality of positions in diametric opposition (Edwards,
2004). Edwards reasons that in the context of criminal justice decision-making, it will not suffice to
argue that victims should be allowed to participate simply because defendants have the opportu­
nity to do so. Further enquiry and analysis into the concept of participation are therefore necessary
according to Edwards. He proposes two types of victim participation: dispositive and non-
dispositive, with four corresponding forms of participation within these categories. Discussing
victims’ issues solely in terms of balance precludes a comprehensive analysis of the issues raised
by incorporating a victim perspective within criminal justice. A more fruitful approach is to focus on
the concept of participation (Edwards, 2004). By doing this some clarity can be brought to the
perennial debate about the appropriate place of victims in criminal justice decision-making
(Edwards, 2004).

Analysing the Indian criminal justice system from a victimological perspective, Chockalingam
remarks that there has been felt a need, owing to increased awareness, to improve the situation
for victims especially in the interaction of criminal justice agencies with the victims (Chockalingam,
2010). Compensation to victims is awarded by the Supreme Court in numerous cases, which
showcases its proactive role in protecting victims’ rights. He further observed that issuance of
guidelines by the Indian Supreme Court for victim assistance in rape cases is an aspect of
affirmative action and in line with the principles enunciated in the United Nations Declaration on
Justice for Victims. It was suggested to pay attention to the plight and the challenges of victims
through a separate national law for victims (Chockalingam, 2010). Such a law is still not in place in
India.

Basing his argument on the concept of “fair trial” after comparisons with victim’s role in criminal
prosecution in different jurisdictions, Murthi observes that Indian Criminal Justice System does not
confer participation rights to victims at par with jurisdictions like the U.S., Canada or Australia. It is
argued that for India to have an effective system in place, it should give victim “effective
opportunity to put forth his case without apprehension about illusory consequences that the
accused shall be persecuted unfairly” (Murthi, 2011).

A rather differing view of victim’s rights is discussed by Blondel in 2008. The author argues that
the Crime Victims’ Rights Act, 2004,8 a legislation in the US affording rights to victims in federal
crime cases, should be read as an institutional courtesy to victim rather than a legislation con­
ferring broad rights on the victim in order to preserve rights and responsibilities of existing parties
in an adversarial trial system (Blondel, 2008). Nevertheless, the right to reasonable, accurate, and
timely notice of any public court proceeding involving the crime [18 U.S.C. § 3771(a)(2) (USA)] is
recognised and granted by the CVRA to crime victims of federal offences, alongside the right to be
present at any public court proceedings relating to the crime perpetrated against them [18 U.S.C. §
3771(a)(3) (USA)]. United States District Court for the Eastern District of New York had the
opportunity to interpret and enforce this right even when the number of victims, including
potential victims, were large in a securities fraud case. Noticing that it was impracticable for the

Page 4 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

government to attempt to identify and locate all of the potential alleged crime victims and provide
them with reasonable, accurate and timely notice by mail, and invoking its power to “fashion
a reasonable procedure to give effect to the right to notice that does not unduly complicate or
prolong the proceedings”,9 the Court allowed the government to notify crime victim with the use of
technology. The government was directed to publish notice to potential alleged victims whereby
victims were diverted to hyperlinks (containing updates of the case) on the official website of the
Court (Saltsman’s case, 2007).

The launch of the E-Courts Management Project in India has witnessed easier user access for
court case updates. The E-Courts National Portal (ecourts.gov.in) is already in use since 2013 in
India (ECommittee, 2014)10 and the 2014 policy plan and objective of the Supreme Court
E-Committee mentioned development of a citizen-centric mobile phone application for case
information and services (ECommittee, 2014). The project has tremendous potential to inform
identified crime victims of the status of their case. Proven crime victims can be given access to
specific updates of the cases involving crime committed against them at par with the parties in
civil matters. The mobile application (e-courts services app) launched in 2019 has been providing
inter alia case information services like cause list, details of case transfer, daily orders, case status
search with different indicators etc., to lawyers, police officials as well as citizens (ECommittee,
2019).

The US Department of Justice’s Victim Notification Program is a constructive development in

securing victims’ rights, specifically their information rights. The Program provides all vital informa­
tion to crime victims including information to access support services. The information is provided
in both English and Spanish languages. The Victim Notification System (or VNS) is an automated
system used by the federal personnel to notify federal crime victims regarding information about
developments in their cases, including status of the investigation, prosecution, trial, incarceration,
location, and custody status of the offender related to the crime. The VNS is a cooperative effort
between various federal agencies in the USA, namely, the Federal Bureau of Investigation, the U.S.
Postal Inspection Service, the Office of the U.S. Attorney, the Federal Bureau of Prisons, and the
Criminal Division. This system is free and computer-based and provides federal crime victims with
information on scheduled court events, as well as the outcome of those court events, and also the
information on offender’s custody status and release (US DOJ, 2023). In addition to the written
notifications generated through VNS, victims can obtain automated status information by calling
the VNS Call Centre or at the VNS Internet site (US DOJ, 2023).

4. Victim participation in the criminal process

Punishment is a pertinent focus area in theoretical perspectives in criminal law and justice. The
evolution of victim’s position in criminal law from the perspective of punishment to offender was
discussed at length by Dubber in his 1999 article. He mentions that once guilt has been estab­
lished, victims can affect the punishment in various ways. The author’s analysis reflects also on
victim testimony having attracted most attention in capital cases even though such testimony can
play a crucial role in sentencing of any criminal case (Dubber, 2004). The article further informs
that the US Supreme Court now permits the use of “victim impact statements” detailing the
victim’s personal characteristics as also the harm suffered by the victim’s family in capital trials.
Victims, however, are precluded from recommending a specific sentence at the sentencing hearing
in capital cases and will be called either by the side arguing for the imposition of death penalty or
the opposite side. The US experience has been recorded as to willingness of trial judges in non-
capital cases to consider specific recommendations from victims regarding punishment. The
victims’ rights movement in America in promoting victim-oriented reforms has since the beginning
failed to transform symbolic “bills of rights” into penal practice (Dubber, 2004, p. 30). The author
suggests that the victims’ rights movement “must integrate itself into a comprehensive reform of
American penal law in theory and fact that assigns all citizens, victims and offenders alike, their
legitimate place” (Dubber, 2004, p. 31).

Page 5 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

Participation of victims in the criminal process in the U.S. has been through a wavy history.
Beloof and Cassell note that since the early days till about 1900 victims were private prosecutors
for crimes and would attend the trials as a party to the case (Beloof & Cassell, 2005, p. 484). In
early 20th century, however, the office of Public Prosecutor had assumed near-monopoly control of
criminal prosecutions. The effect was such that many courts began viewing victims as ancillary to
Public Prosecutor with no status of a party to the criminal case, and their role was began to be
restricted to assistance to the prosecutor (Beloof & Cassell, 2005, p. 494). The authors identify two
reasons for the fall of victim participation in criminal trials; first, abandonment of cases by private
prosecutors, and second; establishment of the Office of Public Prosecutor in the US. The transition,
however, to the complete usurpation of prosecution by the public office was not immediate.
Several reasons contributed to the slow change, say, citizen distrust of the government, deficien­
cies in the Office of Public Prosecutor (Beloof & Cassell, 2005, p. 487). Political forces can be seen to
have led to this transition and turnaround in the way victims were beginning to be seen in the
criminal justice process. Nevertheless, the inclusion of victims formally in the US criminal proce­
dure by assuring them of rights has led to systemic support to this previously ignored stakeholder.
The systemic support in the form of rights has been achieved over a long period of time with
consistent advocacy efforts (Kyl et al., 2005). In India, crime victims have been excluded from the
discussions of criminal process in the formal criminal code even in the progressive 1973 CrPC. It is
only after the 2009 Amendment to the Indian CrPC can one observe a formal inclusion of victim,
starting with the definition accorded to this stakeholder.

Inclusion of victim testimony in the criminal law process has not been precluded from chal­
lenges. The first challenge made before the US Supreme Court was based on the proportionality
doctrine under the Eighth Amendment to the US Constitution which prohibits cruel and unusual
punishments. It was raised in Booth v. Maryland [482 U.S. 496 (1987)], Gathers v. South Carolina
[490 U.S. 805 (1989)] and Payne v. Tennessee [501 U.S. 808 (1991)] according to which the
apprehension is that an emotionally charged or better articulated testimony of the victim is likely
to have a prejudicial effect on the judgement of sentence since it draws attention from defen­
dant’s character and the circumstances in which the crime was committed to eloquence of the
victim or her/his family members. The decision in Payne closed the door on Eighth Amendment
challenge by reversing the rulings in Booth and Gathers. However, in doing so, the US Supreme
Court opened the door for due process challenge based on the Fourteenth Amendment. Stevens
discusses these challenges and says that this second challenge argues that if victim impact
statement11 is prejudicial to the point that it “renders a capital defendant’s trial fundamentally
unfair” it can be excluded (Stevens, 2000). Highlighting these constitutional concerns and few
others like the consideration of full VIS in the sentencing of accomplices and accessories, repeti­
tion of victim’s story at sentencing stage after he has been deposed as a witness in particular in
cases where the accused opts to not depose, etc., Stevens defends retention of constitutional
safeguards for accused persons fully and maintains that if VIS due to its inherent emotional nature
usurps the same and impairs rational decision making, it should be tested on the constitutional
challenge (Stevens, 2000). The Indian Supreme Court has recently revisited the exercise of discre­
tion in death penalty cases and emphasised on “individualised principled sentencing based on
both crime and criminal”.12 Since the 1973 CrPC came into force, the Indian Supreme Court has
laid down in numerous judgements, the principle of balancing aggravating and mitigating circum­
stances to decide sentence in capital cases.13 The seriousness of crime and the impact it has had
on the victim is a factor to be considered in sentencing, however, the Indian law does not take into
account any statement of impact from the victim for deciding an appropriate sentence.

Analysing victim impact regimes for the objectives of sentencing, Roberts has examined empiri­
cal data to understand the effect VIS has on offenders, victims, courts, and practitioners (Roberts,
2009). His research shows that often victim impact regimes are rushed and thus ill-conceived
ending up confusing the victims as well as criminal justice practitioners (Roberts, 2009, p. 399). He
concludes that the sentencing process is better for allowing impact statements however, they
must be as a result of a well-administered regime (Roberts, 2009, p. 400). Further that VIS can

Page 6 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

bring victim satisfaction however impact schemes should stress on expressive and communicative
functions of impact statements.

Basing his argument on the ability of restorative processes, which empower crime victims,
offenders and communities to take an active part in the formulation of the public response to
crime, to increase public trust in the justice system, Gabbay analyses two theories of punishment,
retributivism and utilitarianism, that influence sentencing policies in most Western countries
comparing them to basic values that structure restorative justice theory (Gabbay, 2005). The
author argues that restorative justice does not result in different punishments to equally culpable
offenders. The paper concludes that restorative justice practices improve and promote society’s
response to crime.

While appraising the Indian Criminal Justice System to identify the extent to which victims have
substantive and procedural rights in the Indian codified criminal procedure, Bajpai & Gauba
suggest to preserve victim as a necessary stakeholder in the criminal dispensation process and
for the system to have such an objective. They critically analyse rights of victims under Indian law
and also address the issue of secondary victimization, in the background of international instru­
ments in victim participation and country-specific models for protection of victims. Their work also
analyses voices from empirical research vide interview-schedule of survivors of crime concluding
that all crime survivors “wish to be heard as ‘victims’ and not merely as ‘witnesses’” (Bajpai &
Gauba, 2016, p. 59). The study concludes that “criminal courts are not yet alive or properly
sensitised to the mandatory duty declared in the case of Ankush Shivaji Gaikwad v State of
Maharashtra (Supreme Court of India, 2013)” (Bajpai & Gauba, 2016, p. 118). Specifically, in
relation to sentencing, Tikoo has argued that the concept of just desert demands comprehensive
guidelines on criminal sentencing in India (Tikoo, 2017).

With respect to emotions and empathy infusing in judicial decisions, Low argues that judges
should deliberately attempt to acknowledge and address the emotion they experience, for exam­
ple, in listening to a crime victim who cried during proceedings, instead of resisting and excluding
emotions altogether (Low, 2018). The author concludes that fairness in justice demands taking
into account all perspectives including the truth of emotion.

The 1973 CrPC mandates pre-sentence hearing in India for all offences being tried as per its
procedure [CrPC, sections 235(2) and 248(2)].14 This hearing, however, is limited to hearing the
accused on the question of sentence post the prosecution having addressed arguments before the
court. The victim does not have any say in this hearing either in oral or written form. This pre-
sentence hearing was a new introduction in the 1973 Code in line with the evolving penal
jurisprudence after India had signed the Human Rights Instruments of 1966 (ICCPR and ICESCR,
1966). The victim now has a right to challenge conviction if it was for an offence lessor than the
one the convict was charged with; or against inadequate compensation imposed on the convict; or
an order acquitting the accused. Prior to the 2009 Amendment to the CrPC, only the State
Prosecution had a right to appeal against acquittal.

The constitution bench of the Delhi High Court in Karan v. State of NCT of Delhi [(2020) DLT 352]
has considered at length, the question of compensation to be paid to the victim; interestingly the
judgment has discussed reasons for grant of compensation by tracing the ratio decidendi of
pertinent Supreme Court judgments and Law Commission of India reports. The court has paid
particular importance to victimological aspect to courts power of grant of compensation under
Section 357 of the Code of Criminal Procedure, 1973. Noting that to consider the question of
compensation in each criminal case is a mandatory duty of criminal court at the trail as well as
appellate level, the Delhi High Court has introduced “Victim Impact Report (VIR)” in pursuant to the
summary inquiry required to be conducted by the court to ascertain financial capacity of the
accused before passing the order of award of compensation. The court has in fact made the Delhi
State Legal Services Authority (DSLSA) responsible to conduct this summary inquiry and furnish

Page 7 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

a VIR to the trial court for consideration. This is because the court has found the LSA to be a fitting
authority for reasons of conducting a similar inquiry under the Delhi Victim Compensation
Scheme 2018. This summary inquiry as necessitated for section 357 is to ascertain “the impact
of crime on the victim, the expenses incurred on prosecution, as well as the paying capacity of the
accused”. Once the trial court receives VIR, it is to consider the same along with the accused’s and
State’s affidavits and hear the parties including the crime victim to award compensation. This
appears to be first step towards formal inclusion of victim’s voice in the Criminal Justice System.

5. Victim restitution and support

In 1984 a Harvard Law Review note argued that restitution was an “appropriate sentencing tool that
effectively promotes the aims of Criminal Justice System” (HLR, 1984). The author recognizes that
historically, restitution has been employed as a punitive sanction with the primary purpose of protect­
ing the offender from violent retaliation by victim of the community. However, as state gradually
exercised monopoly over the institution of punishment, and with the conceptual division of criminal
and civil law, use of restitution as means of punitive sanction in criminal trial was diminished and
victim’s right to compensation was incorporated in civil law (HLR, 1984). The note makes a convincing
case for adoption of restitution as part of sentencing in criminal justice process so that the victim need
not be dependent on civil law action and argues restitution’s rehabilitative potential. In basing
argument of use of restitution as a form of punishment that will further the aims of criminal law on
challenging the traditionally accepted differing objectives of civil and criminal law, a convincing link
between objectives of criminal law and harm to victims though needs to be explored.

It has been argued that the Criminal Justice System is based on the assumption that claims of
a victim of crime are sufficiently satisfied by the conviction of perpetrator (Vibhute, 2004). The
suggestion of creation of a statutory consolidated state funded victim welfare fund was floated by
Vibhute. The same is based on two arguments, one that State has moved from a crime-control
model to rehabilitation and reformation and is gradually also moving towards heeding the plight of
crime-victim, and two, that it may be painful for the victim to approach the civil court for
compensation (Vibhute, 2004). The fund is suggested to meet, in addition to compensation, the
immediate financial assistance for victims in distress including medical and hospitalisation
expenses. It is also argued that since victims as well as the offenders in most cases are usually
poor, compensation cannot alone solve the problems of the victim of crime. Award of compensa­
tion was suggested to not be sole discretion of the judge and Indian victim compensation law
should be streamlined as such. It may be argued that the status of victim has been uplifted today
however, not by much degree. Much of the focus today also is on restitution through payment of
compensation either by the accused, i.e., out of the fine imposed on accused, or through State
Victim Compensation Schemes, or both (CrPC, section 357A).

An analysis of victim rights, particularly compensation and restitution, revealed that the status
of victim in criminal proceedings in India is dealt with in a few provisions of the Criminal Procedure
Code, which are too insufficient to be considered fair in dispensing equal justice in accordance with
Article 14 of the Indian Constitution (Menon, 2006). Menon argues that criminal justice adminis­
tration will assume a new direction towards better and quicker justice once the rights of victims
are recognised by law and restitution for loss of life, limb, and property are provided for in the
system. He further argues that dispensing justice to victims of crime cannot any longer be ignored
on grounds of scarcity of resources. State victim compensation schemes have been framed and
acid attack and sexual assault victims may also be awarded interim compensation by courts.

With growing acid attacks in India, the Law Commission of India (hereinafter called “the LCI”)
released its 226th Report in July 2009 dealing specifically with the issue of inclusion of acid attack as
a separate offence under the Indian Penal Code and also for a law for compensation for victims of
crime proposed to be called the “Criminal Injuries Compensation Act”. The Commission recommended
setting up of Criminal Injuries Compensation Boards at the Centre, State and District level for disbur­
sing compensation to not only victims of acid attack but also of other crimes, especially rape, for

Page 8 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

rehabilitation of victims (Law Commission of India, 2009). It is relevant to note that the Code of
Criminal Procedure, 1973 was amended after this Report to include section 357A in relation to
compensation whereby the District Legal Services Authorities15 have been given the power to decide
quantum of compensation for crime victims. In response to the suggestion and prayer of setting up of
a Criminal Injuries Compensation Board, the Supreme Court of India has noted in the
10 December 2015 decision in Laxmi v. Union of India (Writ Petition Criminal 129 of 2006) it may
not be necessary to set up a separate Board since the DLSA is already constituted in every district
under the aegis of the Legal Services Authorities Act, 1987 and multiplicity of authorities may be
avoided. However, the Court directed that in taking up matters of deciding compensation amount, the
DLSA, in lieu of the proposed Board, should involve the District Magistrate, the Superintendent of Police
and the Civil Surgeon or the Chief Medical Officer of that District.

An acid attack victim’s plea in the Supreme Court of India that led the LCI recommending reparation
to victims in the form of state compensation (Laxmi’s case) discussed a unique gender dimension
relating to acid attacks in India (LCI, 2009). Significantly, the report discusses the importance and
need of rehabilitative measures for acid attack victims. The report discusses numerous cases pan
India where acid was used to take revenge whether due to previous personal enmity or due to rejection
of job offer or romantic prospect. It was noticed that the then existing offences were insufficient to deal
specifically with the serious and extensive injuries inflicted by acid attack. Thus, inclusion of a separate
offence of acid attack was recommended in the Indian Penal Code, 1860. The 2013 Criminal Law
Amendment added Sections 326A and 326B to the Indian Penal Code recognising intentional acid
throwing and its attempt as separate offences prescribing stringent mandatory minimum sentences.16

The 2008 Amendment to the Criminal Procedure Code in India17 has been argued to have
a major fallacy despite defining “victim” and “recasting existing defunct laws relating to compen­
sation to victims”, in that it left the discretion of compensation solely on the judge (Kakkar & Ojha,
2012). They argue that even if victim compensation in India has become holistic after the 2009
amendment, these provisions shall remain disused if the judges continue to not exercise discretion
which in many cases, the article observes, judges do not, and such non-use is on its way to make
judges’ discretions the vanishing point of victim compensation law. For victims of gang rape, and
acid attack when the offence of throwing or administering acid causes grievous hurt or permanent
or partial deformity or disfigurement, the State compensation under the Victim Compensation
Scheme is required to be in addition to fine imposed that in entirety, in terms of the 2013
Amendment, is required to be disbursed to the victim.

The 2013 Amendment was in the aftermath of the Nirbhaya tragedy18 to combat sexual violence
against women. The amendment was preceded with the recommendations of the Committee of
Eminent Jurists appointed in 2012 by the Ministry of Home Affairs, Government of India post the
public uproar over Nirbhaya, known as the Justice Verma Committee on Amendments to Criminal
Law. One of the recommendations was inclusion in the Criminal Procedure Code a special proce­
dure for access to justice to persons with disabilities who are victims of rape or other sexual
offence. Consequently, in terms of victim support, the amendment went on to insert proviso to
Section 154(1) of CrPC whereby victim of a sexual offence or acid attack who is temporarily or
permanently mentally or physically disabled can get the information relating to commission of
such offence recorded at her residence or a place of her convenience. Further, sub-section 5A was
added to Section 164 of the CrPC in order to facilitate recording of statement of such victims before
a Judicial Magistrate in lieu of examination-in-chief immediately upon commission of the offence
with the necessary assistance of an interpreter or special educator. Additionally, Section 357C
added to the CrPC mandated all hospitals, whether private or run by government, Central as well
as State Governments) to provide free first-aid or medical treatment to victims of acid attack or
any sexual offence, and to immediately inform the police of such incident. To what extent is this
medical treatment to be provided is however, unclear, as was also observed by the Supreme Court
of India in its suo moto writ petition to understand the implementation of these criminal law
amendments (Assessment of CJS case, 2019, paras 7 and 8).

Page 9 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

In Parivartan Kendra v. Union of India [(2016) 3 SCC 571], the Supreme Court of India had the
opportunity to discuss inadequacy of compensation being paid to acid attack victims across many
States in India even post its decision and guidelines in Laxmi’s case. The Court recognised that it
was State’s responsibility to prevent crime and further keeping in view the impact acid attack has
on victim’s “social, economic and personal life” enhanced the minimum compensation amount to
be paid by State to acid attack victims as INR three lacs.

A novel hybrid between tort litigation and victim compensation fund was tested by Dijck in his
study with victims of sexual abuse in 2018. This study aimed to understand the circumstances
which allow plaintiffs to obtain nonmonetary relief, i.e., apology, acknowledgement of abuse,
recognition of suffering (van Dijck, 2018). The study found that the adjudicators were willing to
provide nonmonetary relief, however, there is a mismatch between relief sought by victims and
what they were offered in the end (van Dijck, 2018). The study further concluded that grant of
nonmonetary relief to victims depends on proper legal infrastructure as well as mentality and
attitudes of players in the system (van Dijck, 2018).

To check the implementation of post-Nirbhaya Amendments made to Indian criminal laws, and
in light of delay and investigation of sexual offences, the Supreme Court suo moto registered a Writ
Petition in 2019 (Assessment of CJS case, 2019). It called for reports from various duty holders of
criminal process; investigation agencies, prosecution, legal aid authorities, medico-forensic agen­
cies, rehabilitation agencies, and courts, to get a complete view of the responsiveness of Criminal
Justice System to sexual offences. The matter is pending, and affidavits from the agencies are
awaited (Assessment of CJS case, 2020). This case is a good opportunity for India’s highest Court
to take stock of bottlenecks in the investigation and trial processes as part of its writ jurisdiction
and for the system to reflect on its shortcomings in order to facilitate the victims of sexual
offences. The hurdles and good practices emerging from these reports can guide the executive
in taking policy decisions for victims of other offences as well.19

6. Recognised challenges to victim inclusion and participation

Doak, in 2005, recognises that in the common law system, direct participation rights to the victim
have traditionally not been the focus area, State assumes the role of prosecution and victims,
perceived as “private parties”, take a backseat in the adversarial system. The article demonstrates
a major shift in attitude in relation to role of victims within the Criminal Justice System and
a breakdown in the public/private divide in criminal justice discourse, say, in England and Wales
the changes in the rules relating to pre-trial contact of victims and prosecutors in 1995 permitting
the barristers to introduce themselves to witnesses before trial, in 1993 the Crown Prosecution
Service obligating prosecutors to take into account interests of victims and witnesses in decision to
prosecute, informing the court about victim’s claim of compensation, helping victims by giving
“appropriate and useful information, and explaining to the victims at court results of cases” (Doak,
2005). Doak concludes that increasingly for effective resolution of criminal disputes crime is being
viewed as a dispute between offender and victim leading to inclusion of reconciliation and
restorative-based models in the criminal justice system (Doak, 2005). He also remarks that stark
demarcation of “civil and criminal law, as well as ‘public’ and ‘private’ interests as discrete entities,
is becoming less marked in the context of international human rights and criminal justice dis­
course” (Doak, 2005). It is also however, cautioned that attitudes of criminal law purists and
working culture of the advocates could still act as a significant challenge or barrier to such
inclusion by way of meaningful participation by victims in criminal trials even when structural
changes in the system are brought. Giving victims of crime the opportunity to tell their story in
their own words in a secure and relaxed atmosphere is not only necessary to protect the interests
of individual victims, but it has been argued to have the potential to act as an essential aid to
truth-finding (Doak, 2005).

Emotions of the victims have also been argued to be given a place in criminal sentencing in
order for criminal sentencing to perform a wider function than retribution of wrongs (Doak &

Page 10 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

Taylor, 2013). They argue that such inclusion shall make criminal sentencing more responsive to
human emotions required for therapeutic and restorative justice. Maharashtra Judicial Academy’s
Paper (Shukla, 2015) while analysing the state of victims’ rights in India also argues for inclusion of
“human factor” while exercising discretion in sentencing and also while taking into account rights
of victims. The balance argument has been time and again invoked in India as well. Kaur has
argued that Indian Criminal Justice System provides more rights to accused than to victim,
however, justice demands that there must be a balance of claims of two parties who are before
court (Kaur, 2016).

7. Jurisprudence developed by the Indian supreme court

In the last few years, several judgements have discussed the importance of victim’s voice in the
criminal process. It is now categorically acknowledged through these decisions that a crime victim
in India has few enforceable rights in relation to participation. It may however, be noted that the
full strength of these rights can be realized through their uniform application that may be achieved
only via statutory amendments. Further, for rights in relation to restitution and support measures,
Indian law still has much to attain. Though compensation as a remedy for crime victims has seen
the most development under Indian legislation with all states and union territories in India having
developed mechanism for award of compensation under Victim Compensation Schemes prepared
and notified Section 357A CrPC.

7.1. Victim’s right to join proceedings

In Jagdish Singh v. Ashish Mishra,20 victim’s right to participate in criminal proceedings was
recognized categorically by the Supreme Court. The court observed that victim has a right to join
proceedings from the stage of investigation into the crime committed, and objections made by the
victim need to be heard by the Court. Specifically, victim’s right to be heard at the hearing of bail
application and right to oppose accused’s bail application was recognized. In reaching its decision,
the Court relied on the Law Commission of India recommendations as well as the Malimath
Committee recommendations for inclusion of victim’s voice in criminal proceedings. The Court
further made reference to the 1985 UN Declaration and Mallikarjun decision. The Court observed
that jurisprudence in India is constantly evolving and an opportunity of fair and effective hearing
to victim was the need of the hour.

The 2021 case of Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr.21, sought directions from
the Supreme Court regarding imposition of conditions while granting bail to accused in rape and
sexual assault offences. The appeal challenged a bail order passed by the High Court directing the
accused of sexual harassment to visit the complainant’s house as a condition of bail with a rakhi22
and request her to tie the same on his wrist seeking her blessings. The appellants argued that this
order and many similar orders passed by various High Courts were in violation of a woman’s dignity
and were likely to negatively impact fairness in the conduct of the trial. The Supreme Court recalled
the conditions permitted under the CrPC to be imposed on the accused seeking bail. Such condi­
tions were to be in accordance with Sections 437 and 438 of CrPC. The court observed that under
common law tradition, the judgements of courts, especially the Supreme Court, were addressed to
larger community and not just the parties to the proceedings. Further, imposition of irrelevant
conditions that were beyond the scope of statutory provisions and had the effect of nullifying the
sexual offence through judicial mandate of tying a rakhi, etc. was unacceptable. Reflection of
gender stereotyping in court orders of bail resulted in discrimination against women-victims
eroding their agency. The court cautioned that use of language that trivialized the sexual offence
was to be avoided by courts in their orders. The Court prohibited bail conditions mandating contact
between the victim and the accused in sexual offences and any suggestions of marriage or
compromise between the prosecutrix and the accused in gender related crimes. The complainant
was also given informational right wherever bail was granted to accused along with copy of the
bail order (para 44). The National Judicial Academy was also requested to impart gender sensitiza­
tion training as part of foundational training of every judge.

Page 11 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

7.2. Victim’s right to counsel

Sections 301 and 302 CrPC lay down rules for conduct of prosecution in criminal matters before
criminal courts including Magistrate courts. The question as to whether victim’s counsel should
be given a free and independent hand to conduct prosecution arose in Amir Hamza Shaikh &
Ors. v. State of Maharshtra & Anr. [(2019) 8 SCC 387]. The difference between the two
provisions was highlighted in Shiv Kumar v. Hukam Chand [(1999) 7 SCC 467]. Section 301
makes way for a private counsel to represent the victim in a criminal case in any criminal court.
However, the victim’s counsel is required to act on the directions of the Public Prosecutor who
has the responsibility of conducting the prosecution. Private counsel could at best submit
written arguments after conclusion of trial and only with court’s permission. Section 302 is
wider in its ambit and is applicable only to cases in Magistrate courts, and does not include in
its purview the Sessions cases or criminal appeals. The Court in Shiv Kumar categorically
expressed the legislative intent as evident from Section 301 read with Section 25 CrPC that
prosecution in a Sessions Court cannot be conducted by anyone other than the Public
Prosecutor. Further in J.K. International v. State (Govt. of NCT of Delhi) & Ors. [(2001) 3 SCC
462], the Supreme Court while reflecting on the ambit of Sections 301 and 302, observed that
the victim is not wiped out from the criminal proceedings even if the investigation and
prosecution is taken over by other agencies. For offences being tried in the Magistrate’s
court, private person permitted to conduct prosecution under Section 302 could engage
a counsel. In Dhariwal Industries Ltd. v. Kishore Wadhwani [(2016) 10 SCC 378], the Supreme
Court discussed both Shiv Kumar and J.K. International, and concluded that it would be open to
the court to consider request of the private person to conduct prosecution in criminal cases
before Magistrate’s court and generally such permission should be granted if it serves the ends
of justice. In Amir Hamza, such principles were reiterated including reliance placed on
Mallikarjun for evolving jurisprudence on victim’s rights. The court held that if the criminal
case does not include such complexities wherein a victim would not be able to assist the court,
the Magistrate may grant permission to the victim to participate. Thus, victim’s participation in
the criminal proceeding through a private counsel is dependant on court’s permission.

Another relevant issue is the ambit of victim counsel’s participation in a criminal trial
indicating participatory rights of victim that may be secured in the criminal process. In Rekha
Murarka v. State of West Bengal & Anr. [(2020) 2 SCC 474], the Supreme Court placed reliance
on the word “assist” used in the proviso to Section 24(8) CrPC that was added replacing the
earlier suggestion of “coordinate with the prosecution” reflecting that victim’s counsel was
intended to only have a supportive role in the criminal trial. It was held that the victim’s
counsel can only suggest questions of cross-examination to the Public Prosecutor and cannot
directly examine or cross-examine witnesses. There also was a harmonious construction of
proviso to Section 24(8) and Section 301(2) CrPC for victim’s counsel to be allowed to have
limited participation in all criminal trials and not just restricted to the ones where Special Public
Prosecutor was appointed under the main provision of Section 24(8) CrPC (paras 9 and 10). The
reasoning for this was also based on statements and objects of the 2009 Amendment to CrPC
recognizing that the ignored sufferers of crime need to be given certain rights and role in court
proceedings. Further, questions by victim’s counsel could also be brought to court’s notice that
could use its powers under criminal procedure and evidence to call witnesses and pose victim’s
questions to them.

The Supreme Court in this judgment essentially reduced the status of victim’s counsel to that of
a spectator, with no participatory rights even so for addressing the court, which remedy could now
be availed only if the Public Prosecutor has missed a point and the court allows for the said point to
be made before it. There is no right of cross-examination of defence witnesses, or even examina­
tion-in-chief of prosecution witnesses. In the court’s opinion, this interpretation would ensure that
accused’s rights are not compromised with free hand given to victim’s counsel who may be
inexperienced and may turn the trial into a vindictive process (paras 11.2 to 11.4).

Page 12 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

7.3. Support measures to victim during trial

In relation to sexual offences, the Supreme Court in Sakshi v. Union of India [(2004) 5 SCC 518] was
called on to reflect on expanding the definition of rape beyond its traditional understanding. The
court invoked the doctrine of stare decisis and strict interpretation of criminal law, and refrained
from expanding the definition of rape through judicial interpretation especially when there was no
ambiguity in the definition and its comprehension. It is relevant to mention here that the Indian
Penal Code, 1860 was amended in 2013 incorporating wider definition of rape and adding separate
offences of gang rape, sexual offence on a woman below twelve years of age, and offence of rape
leading to injury causing death of the woman victim or causing her to be a persistent vegetative
state.23 Keeping in view the appropriateness of maintaining women’s dignity during trial of sexual
offences as well as those of lesser degree offences against women like outraging their modesty,24
the Supreme Court issued directions for trials of offence of rape and child sex abuse. The directions
included in-camera trial for offences punishable under Sections 354 and 377, a screen between
vulnerable victim and accused while her statement was being recorded in court, question in cross-
examination on behalf of accused to be given in writing to the presiding judge who would then put
the questions to victim and witnesses in a dignified language, and victim-witness to be given
sufficient breaks during recording of testimony.25

7.4. Sentencing guidelines

Indian approach to punishment has been a combination of deterrent and reformative approaches
post the 1973 CrPC coming into force. Bachan Singh v. State of Punjab [(1980) 2 SCC 684] highlights
the approach when it laid down that both aggravating and mitigating factors must be considered
by the court while awarding sentence, especially the death penalty. In the recent judgement of
a constitution bench of Supreme Court Manoj & Ors. v. State of Madhya Pradesh,26 the observation
of the Court that mitigating circumstances in awarding the sentence for offence where death
penalty was a possible punishment were not being given due consideration by the trial courts and
sometimes also the High Courts. The court thus issued “practical guidelines” for collecting infor­
mation relating to mitigating circumstances, including report of psychiatric and psychological
evaluation of the accused. Information for some of the other factors like age, level of education,
socio-economic background, early and present family background, income, criminal antecedents
etc., was also directed to be collected and be made available to trial court for sentencing. The
accused also was directed to be given opportunity to produce evidence to establish mitigating
circumstances at the sentencing stage. And third, report from jail authorities and/or probation
officer about accused’s conduct and behaviour in jail was also directed to be called for. It may be
noted that the Court was only dealing with the offences where capital punishment was
a possibility per substantive law.

Another 2022 Supreme Court judgement (division bench) in Jaswinder Singh v. Navjot Singh
[(2022) 7 SCC 628], discusses sentencing principles in relation to victim’s rights. The judgement
observed that the recent developments in criminal jurisprudence have laid emphasis on victimol­
ogy and in the larger social context victim’s rights have to be equally protected.
A “disproportionately lighter sentence” frustrates the victim and the criminal justice system cannot
be indifferent to right of victims.

7.5. Victim’s right to criminal appeal

The gradual acceptance and development of victim’s rights in India was recently reflected in the
words of the Indian Supreme Court in Mallikarjun Kodagali v. State of Karnataka [(2019) 2 SCC
752]. The Court was dealing with a question of victim’s right to appeal under the Indian Criminal
Procedure. It was to be deciphered if victim’s newly inducted statutory right to appeal could only
be exercised upon court’s permission and was not a right per se. In this 2018 judgement of
Mallikarjun Kodagali, the Indian Supreme Court recognised that India had a long way to go before
recognizing rights of victims of crime as human rights although efforts in that direction were being
made. Some of those efforts were by this time had been reflected through statutory amendment
especially of 2009 in the Code of Criminal Procedure, 1973.27 This amendment added the definition

Page 13 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

of “victim” and added victim’s right to appeal against the acquittal of accused (CrPC, proviso to
section 72). Chapter XXI-A that was also added to the CrPC vide the 2009 Amendment, provides
option of plea bargaining with victim’s participation in the negotiation process.

Victim’s right of revision was always saved under the CrPC and the same was also observed by
the Law Commission in its 2009 Report (221st Report). However, revision being a cumbersome
process with revisional court having only the power to remand the matter to trial court once it
found the trial court’s decision to be erroneous, the Commission was of the opinion that the victim
must be accorded a right of appeal against acquittal subject to court’s permission. The final proviso
as added vide the 2009 Amendment in Section 372 CrPC, provided three grounds of appeal to the
victim, namely, (i) order of the court acquitting the accused, (ii) order of the court convicting the
accused for a lesser offence, and (iii) order of court imposing inadequate compensation.28

In discussing the prospective or retrospective application of this newly created right of appeal and the
question of requirement of victim to obtain court’s leave to appeal, in Mallikarjun, the Supreme Court
partly overruled its division bench decision rendered in Satya Pal v. State of Madhya Pradesh [(2015) 5
SCC 613].29 In Satya Pal¸ the Supreme Court held the victim’s right of appeal, being contained in
a proviso to an enacting provision, subject to leave of the High Court as is also required under
Section 378(3) whereunder the State has a right to appeal against acquittal upon obtaining leave of
the High Court. In deciding that proviso must be given a realistic and liberal meaning, the Supreme
Court in Mallikarjun referred not only to the historical relevance for recognition of rights of crime victims,
but also on the rights conferred on victims through the UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power adopted by the General Assembly in 1985. With citing the
statutory language of the proviso to be plain to understand, the Court used literal rule of statutory
interpretation and with a 2:1 majority, held that there is not requirement of leave to appeal or special
leave to appeal, as required for complaint cases under Section 378(4) of the CrPC, to be obtained by the
victim to exercise the right of appeal in respect of the three grounds of appeal given in the proviso. It
may be also be noted that all three judges agreed in respect of recognizing victim’s right of appeal as
a separate right not dependent on State exercising its right of appeal. The dissenting opinion was based
on the reasons for introduction of concept of “leave to appeal” before preferring appeals before the
High Court. This was to ensure that the High Court is not overburdened with appeals and there is a level
of scrutiny before the appeal can be heard full-fledged on merits. The dissenting opinion called for
Section 378(3), 378(4) and 372 of the CrPC to be read together. It is submitted that questions as to
whether leave to appeal is to be obtained in cases that are instituted on First Information Reports and
involve non-cognizable and bailable offences, and in cases instituted similarly involving offences that
are cognizable and non-bailable, i.e., graver offences, where appeal is to be preferred to the Sessions
Court, were unanswered by the Supreme Court in Mallikarjun. The Court did however, in the majority
opinion, observe that the effect of victim and complainant being the same person was not required to
be considered as to the victim’s right of appeal under proviso to Section 372 CrPC. The distinction
between the victim as a victim and the victim as a complainant was an artificial one and no such
distinction is incorporated in Section 372.30 In the 2020 decision in Parvinder Kansal v. State (NCT of
Delhi) [(2020) 19 SCC 496], a division bench of the Supreme Court, without discussing the Mallikarjun
judgement, observed that appeal is a statutory remedy and the same could not be exercised by the
victim on any grounds other than those given specifically in the proviso to Section 372 CrPC. In this case,
the complainant’s appeal seeking enhancement of sentence of the convict from life imprisonment to
award of death penalty was dismissed by the Supreme Court.

7.6. Victim’s right to compensation

The new 1972 code of criminal procedure, introduced section 357 empowering the court to award
compensation to the victim either from the fine recovered or otherwise. Section 357 was introduced in
the basis of recommendations made by the law commission of India in its 41st report (Law Commission
of India, 1969). In section 357, compensation to the crime victim could now be awarded irrespective of
whether the offence was punishable with fine and if fine was actually imposed. Yet, there was no
procedure for compensation from the state, in fact section 357 though worded as compensation

Page 14 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071

reflected restitution or reparation. Section 357A having been added to the Code of Criminal Procedure,
1973 mandates every state government to prepare a scheme for ‘providing funds for the purpose of
compensation to the victim οr his dependents who have suffered loss or injury as a result of the crime
and who require rehabilitation. The introduction of section 357A has imposed obligation on every state
government to 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”
[CrPC, section 357A(1)]. It is noteworthy that as of 10 March 2022, all 28 states and 8 Union Territories
have prepared and notified victim compensation schemes for fulfilling the obligations under sub-section
(1). A differing aspect οf the scheme under 357A is that the responsibility of deciding the quantum of
compensation to be awarded under the VCS is on the district or state legal service authority.

In discussing the guidelines for determining the quantum of compensation to be awarded to victims
when the statutory authority under the newly notified schemes per section 357A of the CrPC to decide
the amount of compensation, the Supreme Court in Suresh v. State of Haryana [(2015) 2 SCC 227] has
remarked on the need and history of a mechanism for rehabilitative measures for crime victim
including monetary compensation. The Supreme Court in this judgment directed that the criminal
court must grant interim compensation to victims of crime especially when the victim is identifiable,
there is tangible material to show that a crime was committed and the victim needs immediate
financial relief. In fact, the Supreme Court in no uncertain words held that the duty of the criminal
court to recognize the victim’s need and accordingly award compensation continues at every stage of
a criminal case irrespective of victim’s application for such compensation. Gravity of offence was
further recognized as a guiding factor for determining the amount of compensation.

8. Synthesis in closing
The Indian Criminal Justice Process, being adversarial in nature, does not specifically recognise
the victim’s position except for providing compensation. It is true that criminal law in its
current understanding and implementation is State responsibility, however, in advocating for
clear party distinctions, the most affected stakeholder should not be ignored in India. The
system has although started to respond to victim’s needs. The comparative tracing shows that
the legislative response to victim’s needs has been slow both in the US and in India. Whereas
the US has introduced specific legislative changes and rights for crime victims, the Indian law is
yet to see specific and expansive statutory provisions on victims’ rights apart from those on
state compensation and right to appeal. Sustained political and advocacy efforts in both
jurisdictions have resulted in concrete changes even if at a slow rate. The Indian Supreme
Court judgements reveal considerable positive change in the treatment of victims at the hands
of the Criminal Justice System. However, India needs to now focus on expected challenges to
victim inclusion and to make evidence-based recommendations for recognition of further rights
for crime victims. B.B. Pande in his 2015 workshop address relating to the Delhi Gang Rape case
emphasised the incident to be the turning point for victim justice in India (Pande, 2015). He
remarked that the incident appears to have set the stage for decisive movement towards
victim justice in both substantive and procedural laws, however, their implementation may still
be worrisome. A crime victim in the Indian Criminal Justice System is still away from effectively
and adequately realizing its agency through concrete rights. There is thus, a need for visibly
evaluating the role of each stakeholder, and “duty holder”, in the Criminal Justice System and
hope for a sensitive yet objective approach towards the crime victim.
1
Funding Symbiosis Law School, Symbiosis International, Deemed
The work was supported by the Symbiosis International University, Pune, India.
(Deemed University) - Open Access Pro Publishing (OA-
PRO) Membership Program. Disclosure statement
No potential conflict of interest was reported by the
Author details author(s).
Megha Nagpal1
E-mail: megha.nagpal@symlaw.edu.in Supplementary material
ORCID ID: http://orcid.org/0000-0002-8503-4829 Supplemental data for this article can be accessed online
Chandrashekhar Rawandale1 at https://doi.org/10.1080/23311983.2023.2286071

Page 15 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071
Citation information
Cite this article as: Tracing journey of crime victim’s posi­
tion under Indian law with evolutionary insights from the
United States’ federal code on victims’ rights, Megha
Nagpal & Chandrashekhar Rawandale, Cogent Arts &
Humanities (2023), 10: 2286071.
Notes
1. * Ph.D. Scholar in Law, Symbiosis Law School, Noida
Campus, Symbiosis International (Deemed
University), Pune, India.
** Professor in Law, Symbiosis Law School, Noida
Campus, Symbiosis International (Deemed
University), Pune, India.
Hereinafter called the “UN Declaration”.
2. Hereinafter called “the CrPC”.
3. Hereinafter called “the USA”.
4. See also Marlene Young, A HISTORY OF THE VICTIMS
MOVEMENT IN THE UNITED STATES, https://www.
unafei.or.jp/publications/pdf/RS_No70/No70_08VE_
Young1.pdf (last visited Apr. 29, 2023).
5. See also Marie Manikis, Contrasting the Emergence
of the Victims’ Movements in the United States and
England and Wales, 9(2) SOCIETIES 35 (2019),
https://doi.org/10.3390/soc9020035.
6. See also The History of the Crime Victims’ Movement
in the United States, Office for Victims of Crime, U.S.
Department of Justice, https://www.ncjrs.gov/ovc_
archives/ncvrw/2005/pg4c.html#:~:text=There%20is
%20little%20doubt%20that,status%2C%20power%
2C%20and%20influence (last visited Oct. 12, 2023).
7. Popularly and hereinafter called “the Malimath
Committee”.
8. Hereinafter called “the CVRA”.
9. This is a right granted by 18 U.S.C. § 3771(d)(2) (USA).
10. As a part of National eGovernance Plan (NeGP),
eCourts Project is an Integrated Mission Mode Project
under implementation since 2007 for Indian Judiciary
based on the “National Policy and Action Plan for
Implementation of Information and Communication
Technology in Indian Judiciary” (NPAPIICT), prepared
by the eCommittee of Supreme Court of India in 2005
and approved by the Chief Justice of India.
11. Hereinafter called “VIS”.
12. See Manoj and Ors. v. State of Madhya Pradesh
(2023) 2 SCC 353.
13. See Bachan Singh v. State of Punjab (1980) 2 SCC
684, Machhi Singh v. State of Punjab (1983) 3 SCC
470, Santosh Kumar Bariyar v. State of
Maharashtra (2009) 6 SCC 498.
14. See also observations of the Indian Supreme Court
in Ediga Annamma v. State of Andhra Pradesh, AIR
1974 SC 799, and Bachan Singh v. State of Punjab,
(1980) 2 SCC 684.
15. Hereinafter called “the DLSA”.
16. For the offence of causing permanent or partial
deformity or disablement by throwing acid, the
minimum sentence is of ten years imprisonment
(Section 326A of the Indian Penal Code, 1860), and
for its attempt is five years imprisonment
(Section 326B of the Indian Penal Code, 1860).
17. This amendment came into force in January 2009
and defines “victim” as “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”
18. This was the incident of rape and murder of a woman
in a moving bus in Delhi in December 2012 that had
garnered enormous societal response, advocacy and
activism for women’s safety.
19. See also Nipun Saxena v. Union of India, (2019) 2
SCC 703.
20. Criminal Appeal No. 632 of 2022, decided on
April 18, 2022.
21. Criminal Appeal No. 329 of 2021, decided on
March 18, 2021.
22. Rakhi or Raksha Bandhan, is an Indian festival that
honours the bond between sisters and brothers.
A sister ties a sacred thread on her brother’s right
wrist in accordance with rituals as a symbol of
protection and love.
23. See Sections 376A to 376E, Indian Penal Code
1860.
24. Punishable under Section 354 of the Indian Penal
Code 1860.
25. These directions were in addition to those issued by
the Supreme Court in State of Punjab v. Gurmit
Singh, (1996) 2 SCC 384, whereby statutory man­
date of in-camera trial for offences of rape was
directed to not be ignored by trial courts.
26. Criminal Appeal Nos. 248–250 of 2015, decided on
May 20, 2022.
27. One of the driving factors for this amendment is
said to be the 2009 Law Commission of India
Report, wherein the Commission recommended
victim’s right of appeal in case the State does not
prefer the same against accused’s acquittal.
28. The proviso to Section 372 introduced vide the
2009 Amendment to CrPC reads: 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.
29. It may be noted that the Supreme Court remarked
in relation to the applicability of the proviso to
Section 372 in National Commission for Women
v. State (NCT of Delhi), (2010) 12 SCC 599 that the
proviso may not be applicable to crime incidents
that occurred after the date on which the proviso
came into force, i.e., 31 December 2009. This
observation of the Court was held to be obiter dicta
in Mallikarjun.
30. See paragraphs 34 and 35 of Mallikarjun.
References
60 Experts to Help Cops Deal with Women Crime Victims.
(2016, August 21). Times of India. https://timesofin
dia.indiatimes.com/city/delhi/60-experts-to-help-
cops-deal-with-women-crime-victims/articleshow/
53790600.cms
Bajpai, G. S., & Gauba, S. (2016). Victim justice:
A paradigm shift in criminal justice in India. Thomson
Reuters, 59.
Beloof, D. E., & Cassell, P. G. (2005). The crime victim’s
right to attend the trial: The reascendant National
consensus. The Lewis & Clark Law Review, 9(3), 481.
https://law.lclark.edu/live/files/9688-lcb93cassellpdf
Bihar: Counselling Centre for Women Victims of Crime in
Police Headquarters. (2021, March 9). Hindustan
Times. https://www.hindustantimes.com/cities/
patna-news/bihar-counselling-centre-for-women-
victims-of-crime-in-police-headquarters
-101615285290227.html
Blondel, E. C.(2008). Victims’ rights in an adversary sys­
tem. Duke Law Journal, 58(2), 237. https://www.jstor.
org/stable/40040652
Cassell, P. G.(2005). Recognizing victims in the federal
rules of criminal procedure: Proposed amendments
Page 16 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071
in light of the crime victims’ rights act. Brigham
Young University Law Review, 2005(4), 835. https://
core.ac.uk/download/pdf/217063692.pdf
Chockalingam, K. (2010, August). Measures for crime vic­
tims in the Indian criminal justice system. The United
Nations Asia and Far East Institute for the Prevention
of Crime and the Treatment of Offenders (UNAFEI).
https://www.unafei.or.jp/publications/pdf/RS_No81/
No81_11VE_Chockalingam.pdf
Doak, J. (2005). Victims’ rights in criminal trials: Prospects
for participation. Journal of Law & Society, 32(2), 294.
https://doi.org/10.1111/j.1467-6478.2005.00325.x
Doak, J., & Taylor, L. (2013). Hearing the voices of victims
and offenders: The role of emotions in criminal
sentencing. The Northern Ireland Legal Quarterly, 64
(1), 25. https://doi.org/10.53386/nilq.v64i1.331
Dubber, M. D. (2004, April 17). The victim in American
Penal Law: A systematic overview. SSRN. https://ssrn.
com/abstract=531803
Ecommittee Supreme Court of India. (2014). Policy and
Action Plan Document: Phase II of the Ecourts Project.
https://ecourts.gov.in/ecourts_home/static/manuals/
PolicyActionPlanDocument-PhaseII-approved
-08012014-indexed_Sign.pdf
ECommittee Supreme Court of India. (2019). Objectives
Accomplishment Report. 45, 69. https://ecourts.gov.
in/ecourts_home/static/manuals/
ObjectiveAccomplishmentReport-2019.pdf
Edwards, I. (2004). An ambiguous participant: The crime
victim and criminal justice decision-making. The
British Journal of Criminology, 44(6), 967. https://doi.
org/10.1093/bjc/azh050
Friedman, L. N. (1985). The crime victim movement at its
First Decade. Public Administration Review, 45, 790.
https://doi.org/10.2307/3135037
Gabbay, Z. D. (2005). Justifying restorative justice:
A theoretical justification for the use of restorative justice
Practices¸. Journal of Dispute Resolution, 2005(2), 349.
Government of India. (2003, March). Ministry of Home
Affairs, Committee on reforms of criminal justice sys­
tem: Report, volume I. Malimath Committee Report.
Retrieved April 29, 2023, from https://www.mha.gov.
in/s3ites/default/files/criminal_justice_system.pdf
Gruber, A. (2007). The feminist war on crime. Iowa Law
Review, 92, 741. https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=991563
In re: Assessment of the criminal justice system in
response to sexual offences, suo moto Writ (criminal)
no. 4 of 2019, order dated December 18, 2019 and
order dated February 7, 2020. Assessment of CJS
case.
Justice JS Verma Committee. (2013, December).
Government of India. Committee on Amendments to
Criminal Law: Report, PRS Legislative. Retrieved April.
29, 2023, from https://prsindia.org/policy/report-
summaries/justice-verma-committee-report-
summary
Kakkar, J., & Ojha, S.(2012). An analysis of the vanishing
point of Indian victim compensation law. Journal of
Indian Law and Society, 2(Monsoon), 313. https://jils.
co.in/wp-content/uploads/2019/04/Jhalak-Kakkar-
and-Shruti-Ojha.pdf
Kaur, H. (2016). Victimology: A movement for reform in
criminal justice system. Nyaya Deep (The Official
Journal of NALSA), 17(2), 3.
Kyl, J. (2005). On the wings of their angels: The Scott
Campbell, Stephanie Roper, Wendy Preston, Louarna
Gillis, and Nila Lynn crime victims’ rights Act. The
Lewis & Clark Law Review, 9(3), 581.
Law Commission of India. (1969, September). The Code of
criminal Procedure, 1898, 41st report: Vol. I. https://
cdnbbsr.s3waas.gov.in/s3ca0daec69
b5adc880fb464895726dbdf/uploads/2022/08/
2022082436.pdf
Law Commission of India. (1996, August). The Code of
criminal Procedure, 1973, 154th report: Vol. I.
Retrieved October 12, 2023, from https://cdnbbsr.
s3waas.gov.in/s3ca0daec69
b5adc880fb464895726dbdf/uploads/2022/08/
2022080878-1.pdf
Law Commission of India. (2009, July). The inclusion of
acid attacks as separate offences in the Indian Penal
Code and a Law for compensation for victims of
Crime: Conclusion & Recommendations, 226th report.
https://lawcommissionofindia.nic.in/reports/
report226.pdf.
Laxmi, V. (2006). Union of India, Writ Petition (Crl.) 129.
Supreme Court of India.
Low, G. (2018). Emphatic plea for the empathic judge.
Singapore Academy of Law Journal, 30(1), 97. https://
journalsonline.academypublishing.org.sg/Journals/
Singapore-Academy-of-Law-Journal/e-Archive/ctl/
eFirstSALPDFJournalView/mid/495/ArticleId/1260/
Citation/JournalsOnlinePDF
Manikis, M. (2019). Contrasting the Emergence of the
victims’ Movements in the United States and England
and Wales. SOCIETIES, 9(2), 35. https://doi.org/10.
3390/soc9020035
Menon, N. R. M. (2006, March 27). Victim’s rights and
criminal justice reforms. The Hindu. http://www.
hindu.com/2006/03/27/stories/2006032703131000.
htm
Murthi, N. K. (2011). Victims’ role in prosecution - analyzing
the March of Law. MADRAS Law of Journal CRL, 2, 17.
One Stop Centre Scheme, Ministry of Women and Child
Development, National Informatics Centre. (2023,
October 12). https://wcd.nic.in/sites/default/files/
OSC_S.pdf
Pande, B. B. (2015, December 4). Delhi gang rape:
A turning point for victim justice in India. Uttarakhand
Judicial and Legal Academy. https://ujala.uk.gov.in/
files/Vol%204/Article_3_Sri_B_B_Pande.pdf
Protection of Women from Domestic Violence Act. (2005).
India.
Roberts, J. V. (2009). Listening to the crime victim:
Evaluating victim input at sentencing and parole.
Crime and Justice, 38(1), 347. https://doi.org/10.1086/
599203
Schünemann, B. (1999). The role of the victim within the
criminal justice system: A three-tiered concept.
Buffalo Criminal Law Review, 3(1), 33. https://doi.org/
10.1525/nclr.1999.3.1.33
Shukla, U. B. (2015, February 10). Sentencing Policy,
Victimology and Compensation to the Victims:
Workshop Paper. Maharashtra Judicial Academy.
Retrieved Apr. 29, 2023, from http://mja.gov.in/Site/
Upload/GR/Title%20NO.60(As%20Per%20Workshop
%20List%20title%20no60%20pdf).pdf
Stevens, M. (2000). Victim impact statements considered
in Sentencing: Constitutional concerns. BJCL, 2(1), 1.
https://doi.org/10.15779/Z38CS5M
Tikoo, A. V. (2017). Individualisation of punishment, just
desert and Indian Supreme Court decisions: Some
reflections, 2(Winter). ILI Law Review, 20. https://
www.ili.ac.in/pdf/tikoo.pdf
United Nations General Assembly, 1966 International
Covenant on Civil and Political Rights UN Documents:
Gathering a Body of Global Agreements A/RES/21/
2200A https://www.un-documents.net/iccpr.htm
United Nations General Assembly. (1985, November 29).
The Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, UN Documents:
Page 17 of 18
Nagpal & Rawandale, Cogent Arts & Humanities (2023), 10: 2286071
https://doi.org/10.1080/23311983.2023.2286071
Gathering a Body of Global Agreements A/RES/40/34.
http://www.un-documents.net/a40r34.htm
U.S. v. Saltsman 07-CR-641 (NGG). (2007, November 27).
van Dijck, G. (2018). Victim-oriented Tort Law in
Action: An empirical examination of Catholic
Church sexual abuse cases. Journal of Empirical
Legal Studies, 15(1), 126–164. https://doi.org/10.
1111/jels.12175
VIBHUTE, K. I. (2004). Criminal justice: A human rights
perspective of the criminal justice process in India, K.
D. Gaur. Justice to Victims of Crime: Emerging Trends
and Legislative Models in India. 351, 370–394.
Eastern Book Company.
Victim Notification System. (2023, September 7). United
States’ department of justice, https://www.justice.
gov/criminal-vns/victim-notification-system
Victim restitution in the criminal process: A procedural
analysis. (1984). Harvard Law Review, 97(4), 931.
https://doi.org/10.2307/1341022
What is Nirbhaya Case?. Times of India. (2019, December. 18,
03:31 PM). https://timesofindia.indiatimes.com/india/
what-is-nirbhaya-case/articleshow/72868430.cms
Page 18 of 18
© 2023 The Author(s). Published by Informa UK Limited, trading as Taylor and
Francis Group. This work is licensed under the Creative Commons Attribution
License creativecommons.org/licenses/by/4.0/ (the “License”).
Notwithstanding the ProQuest Terms and Conditions, you may use this content
in accordance with the terms of the License.