P RESENYTED BY:

K ABITA SHARMA ADHIKARI

RO LL NO : 2DAY

A term paper on

NE PALESE LEGAL SAPECT AND ITS PRATICAL PROBLEMS

REGARDING VICTIIM

“ T H E R E IS A HEAVY INFLUENCE OF CRIMINOLOGICAL SCHOOL ING

DUR ING THE DRAFTING OF LAW. THE NEWLY PROPOSE D
A ME NDMENT ALSO INDIR ECTLY DEFEATS THE VICTIMOLOGIC A L
P H IL OSOPHY AND IS NOT IN THE LINE OF MODERN VICTIMOLOGY .
C UR R E NT LEGAL PROVISIONS AND PROPOSED AMENDME NT S
UL T IMA TELY DEFEAT THE SPIRIT OF ARTICLE 21 OF THE
C ONST ITUTION .”

Background

Victimology has no long historical background as the victims have. “We cannot imagine crime
free society” and “Where there is society there is crime” are two fundamental maxims of
criminal law but the neglected thing throughout the whole history of legal jurisprudence
[especially in Criminal Jurisprudence] is that “Where there is crime there is a victim”. Crime is
happening since ancient times, and criminal and victim are the products of every crime.
Criminology has a great history and great scholars have done so many discoveries in this field.
But ‘victimology’ is struggling to seek its place/legality in the Dictionary.
In the whole history of jurisprudence, our learning behavior is totally biased. We are, up to now,
seeing the victims through the eye of criminology. So, it is disgusting to note that the system
does not give much similar concern for the victims of crime, who are the “by-products of the
crime” (KD Gaur, 2004). For centuries, legal philosophers and lawyers have been
preoccupied with the principles of criminal law, the criteria for criminalization and the
rights of the defendant while criminologists typically concentrated on the characteristics of
criminals, what caused their criminal propensity and how to prevent crime. Their point-of-
departure was always the offender, never the person who suffered as a result of the crime.
It was only fairly recent, around the 1940s, that academics also started to take an interest
in victims of crime and their standing in the criminal procedure (Suzan Van der Aa, 2014).
In the culture of criminal justice system, it is obvious to have notable effects of criminology in
intellectual, theoretical and philosophical thinking from psychological perspective (Shankar K.
Shrestha 2074). But it is the legislative mistake not to give more attention to the
consequences resulted from the interaction between victims and offenders (Gabriel Trade,
1912). So, making victimology as a branch of criminology is a great mistake or negligence
in jurisprudential understanding. Being offenders and being victims are principally not
identical in nature and cannot be. The first one is the cause and the second is the effect.
Identical understanding of these two shows failure in understanding the actual spirit of
victims and victimology or no efforts to understand its real spirit (Shrestha 2074).

 History
The criminal legal history of Nepal starts from 4 B.C. Kirat period is taken as a starting point for
its study. It shows, not only the existence of criminal but also the victim of crime during ancient
period. Although our ancient Hindu Acharya introduced the concept of victim compensation for
the first time even before the Christ period (Gajendra K. Batola, 2047), the concept of
victimology was included/written in academic study/writing for the first time by Katak Malla
later in 2046. After that, Senior Advocate Shankar Kumar Shrestha is continuously writing
about it. Therefore there is no notable space for victimology in the history of Nepalese legal
jurisprudence.
The Constitution of Nepal, 2072 for the first time introduced victim’s rights as a fundamental
right in Article 21. To materialize, legitimatize or enforce the constitutional right, Criminal
Code 2074 made some provisions about victim rights. It is the first legislative document, which
made separate and specific provision for victim rights. After that, the parliament made a special
law to enforce Article 21 as demanded by Article 47. But in this paper the writer is going to
analyze the provisions of the Criminal Code which are only related to victim’s rights from the
perspective of victimological jurisprudence.

Constitutional and Legal Provisions

Article 21 of the Constitution and Section 32 of the Criminal Code 2074 are same in language
regarding the rights of crime victims which are as follows:

 A victim of crime shall have the right to get information about the investigation and
proceedings of a case in which he or she is the victim.
 A victim of crime shall have the right to justice including social rehabilitation and
compensation in accordance with law.

The first provision is related with the right to information and fair trial but the second
provision speaks many more things, somehow it seems abstract as well. So it needs some
interpretation.:
The use of interesting words ‘Justice including rehabilitation and compensation’. ‘Justice
with compensation’ totally depends upon the facts of the case. Law has given discretionary
power to the court to provide justice including compensation and rehabilitation instead of
pinpointing which must be determined on the basis of facts and scenario of the cases is the
spirit of this particular provision. Section 48 of this code must be read with this particular
provision. And section 48 has made provision of interim compensation, which reads as
follows;
Court may order for interim compensation: 1) Whatever written in other provisions if victim
or relatives dependent on victims need immediate treatment or immediate monetary relief due to
such crime, court may order to provide such immediate compensation from accused.
2) Accused must provide compensation as mentioned in subsection 1 immediately.
3) If accused failed to provide such interim compensation, court may order to provide interim
compensation from victim relief fund and later such amount must be recovered from the accused.
4) If accused who paid interim compensation according to this provision, is found innocent at the
final judgment of the court, victim who got such interim compensation must give back such
compensation amount to such innocent accused or reimburse in relief fund within 35 days from
the judgment of court.
5) If victim fails to provide back such amount within provided time, court shall recover such
amount from any property of victim within 60 days of non-payment.
This provision is related to interim relief to crime victims.
If such compensation is not provided victims suffer more or their condition deteriorate even
more and final judgment becomes meaningless even if the court did justice (Writ No. 071-WO-
0753).
Thus it can be stated that the object of granting compensation to the victim is to alleviate
the sufferings of the victim, to make the loss easier to bear for the victim and his family,
rehumanise victims and restore their dignity (Jonathan Doak, 2008). This is the rationale
behind providing interim compensation. The code has made some progressive provisions.
It demands the establishment of the victim relief fund. Section 48 of Penal Code 2074 has
made provision for the establishment of the victim relief fund.
But if we see the sub-section 4 and 5 of Section 48 of Criminal Code 2074 it regressive and
irrational, it must be tested with the principles of victimology. There are certain established
maxims in victimology. Our judiciary has also accepted these. According to the principles of
victimology, whether the offender is identified or not, prosecuted or not, victim should get
compensation in any condition and the compensation must be adequate. Economic status of
offender keeps no meaning in providing compensation to victims. Right to get compensation by
victims is an integral part of the right to life of victims (NKP 2072, Pg. 263).

Victimological values require the evaluation of ‘consequence of crime are justifiable or not’,
instead of ‘crime is right or wrong’. Therefore offender always may not be traced, it means crime
must be proved but victim is always seen. Proving of crime and proving of offender are two
different things. When a crime is proved obviously victim is seen but it may not prove the
offender (Shrestha 2074). These are some established maxims of victimology.
If we see subsection 4 and 5 from victimological perspective, these particular provisions are
against the established principles of victimology. Firstly section 48 is against the general
principle of criminal law. Accused is taken innocent until guilty is not proved with adequate
evidence in criminal law, and an order to provide compensation by innocent person has violated
this principle. Now the main thing is that if accused is found innocent it does not mean the victim
is also hypothetical. Whether offender is found or not victim is always seen. When offender
found innocent, for taking back interim compensation from victim, prosecutor must prove that
victim is not suffering from any pain or loss.
Not prosecuting real offender is the fault of prosecutor. According to this particular provision
victim should bear the consequences of arresting the wrong person by state. According to
Principle A.2 of UN Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power 1985 “A person may be considered a victim, under this Declaration,
regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted
and regardless of the familial relationship between the perpetrator and the victim. The term
“victim” also includes, where appropriate, the immediate family or dependents of the direct
victim and persons who have suffered harm in intervening to assist victims in distress or to
prevent victimization.” It has clearly said that the offender is found or not, prosecuted or not,
victim is victim. But our legal provision says that if accused found innocent, victim no longer
remains victim or victim is not victim after finding accused innocent/not finding the offender.
This particular provision is also against the UN General principles. If we see sub-section 4 of
Section 357A Code of Criminal Procedure, 1973 of India, it states “Where the offender is not
traced or identified, but the victim is identified, and where no trial takes place, the victim
or his dependents may make an application to the State or the District Legal Services
Authority for award of compensation.”
Our legal provision is opposite of this particular provision of Indian law. Even if victim got
interim compensation from victim relief fund, after acquittal of accused victim must refund such
compensation amount in relief fund. This particular provision shows the heavy influence of
Criminological jurisprudential mentality.
Most fearful provision is its sub-section 5, it states that if victim fails to refund such
compensation amount within 60 days, court must recover from victim’s any property. What must
be kept in mind is that Interim Compensation is never taken to deposit in bank or any storeroom.
It is given for immediate expenses. Victim couldn’t bring property or money, which is already
consumed. So, sub-section 5 is totally against the basic norms of Interim Compensation and
enforcement of this provision is totally increasing the anarchism of judiciary.
Although Codes have introduced some noble provisions, these are totally guided by philosophy
of criminology and Sec 45 of Penal Code 2074 is the finest example. Its sub-section 2 states
‘if offender failed to provide compensation to victim or cannot be recovered from his
property then offender shall be imprisoned at the rate of three hundred Rupees per day by
converting compensation into imprisonment. Imprisonment for offender is okay but how
about the victim. Main question is what does victim get from imprisonment of offender? Without
giving alternative, only imprisoning offenders does not mean victims get justice. This is the legal
way of refraining state from responsibility to give compensation to victim. Our judiciary has
insisted that whether culprit is traced or not state must give compensation to the victim because
the state is the ultimate guardian of every citizen (NKP 2072, Pg. 263).
Parliament has introduced the Bill to amend the unsatisfactory provisions of Criminal Code.
According to Sec 13 of Bill introduced to amend the Some Provisions of Muluki Codes, it has
proposed some additional conditions for interim compensation to victim. Parliament has
proposed that if victim has made false suit or crime is not established then victim has to return
obtained compensation. Indirectly it has also followed the previous notion. Parliament has failed
to state the false victim. If false victim found then it is logical to return provided compensation
but if crime is not established then what about established/seen victim.
Indian law has clearly communicated that even if the trail has not happened then victim should
get compensation. There might be more reasons behind not establishing the crime and forgetting
the victim by saying not establishment of crime is secondary victimization of victim or post-
crime victimization. It brings distrust on the judiciary and the whole justice system by victims.
And H. J. V. Leonard Territo has rightly said “To be a victim at the hands of the criminals is an
unforgettable nightmare. But to then become a victim at the hands of the criminal justice system
is an unforgivable travesty. It makes the criminal and the criminal justice system (state) partners
crime”.
The Crime Victim Protection Act, 2018 enacted by the Federal Parliament ensures the right to
justice of crime victims in criminal investigation, adjudication of cases, compensation and social
rehabilitation.

The first law of this kind came into force upon its publication in the Nepal Gazette on September
18. The act also aims to minimise the adverse impacts of crimes on victims. “Any victim shall
have right to enjoy decent, fair and dignified behaviour during the criminal justice process. Sec 4
He/she shall not be discriminated on the basis of his/her religion, colour, gender, caste, ethnicity,
origin, language, marital status, age, physical or mental unsoundness, disability and ideology,
among others,” the act states.sec 5

Similarly, the victims of rape, incestuous rape, human trafficking and molestation shall have
right to privacy during criminal investigation, prosecution and court proceedings. “No one
shall disclose the identity of such victims in any form whatsoever,” sec 6

Sec7 Right to information

sec 8 right to information relating to persecution and investigation

sec9 right to information relating to judicial proceeding

sec10 right to become safe

sec 11 right to express opinion

sec 12 right to appoint the legal advisor

sec 13. Right of attendance and participation in hearing

sec 14 Right to stay in separate chamber in the course of hearing

Sec 15 Right to have property returned.

Sec 16.To hold discussion as to the case related to offence

Sec 17 Right to make written application

Sec 18 Right to get information as to compensation

Sec 19 Right of compensation and social rehabilitation:

Sec 20.Right to make application or appeal:

. Concerned investigating officer or agency is required to provide medical, psychological,

psycho-social and legal counselling; name and address of prosecuting agency; name, address and
telephone number of investigating officer; name, age, address and complexion of crime
suspect(s) and progress report of investigation and prosecution to the victim if he/she desires so.

The act defines the victim as ‘the concerned victim directly affected by the crime and his/her
family’. Even if the investigating officer releases the crime suspect because it is not necessary to
continue to keep him/her in the custody, information thereof shall also be provided to the victim.

“However, if the right to information to be enjoyed by the victim is likely to pose threat to life
and property of the crime suspect and his/her family, the investigating agency shall not be
obliged to provide such information to the victim. In such case, the investigating agency shall
furnish the reasons to the victim as to why information could not be provided,” the act states.

The prosecuting agency shall also provide the victim with all information about prosecution
against the crime suspect, progress report, a certified copy of charge-sheet filed against him/her
and court proceedings. Similarly, the concerned court shall inform the victim whether the crime
suspect was sent to jail or not until final verdict; date, venue and time of hearing, jail term if
he/she has been sentenced; name and address of prison where he/she is doing time; and other
decisions of the court.

The victim and his/her family shall have right to be safe from potential attack and threat of crime
suspects, perpetrators, defendants and their witnesses. “The victim may also hire separate lawyer
during the criminal justice process if he/she desires so,” the law adds. As per the act, the victim
shall enjoy compensation, including medical treatment and payment made to lawyer, on the basis
of harm cased to him/her. The compensation shall be borne by the perpetrator(s).

The act has also made a provision of a six-member Victim Protection Recommendation
Committee led by the attorney general to recommend to the government protection of interests
and rights of crime victims.

Chapter -4 compensation
sec 29 power to make order for interim the compensation

sec 30. To get compensation recovered from offender himself or herself

Victims traumatized
In the aftermath of violence, victims typically feel pain, shock, fear, grief and anger as a result of
its physical, psychological, spiritual and financial impacts

The criminal justice system is ineffective at addressing the harm done to victims because it
centres around punishing the accused perpetrators of violence. The system does not adequately
support the victim’s healing. Instead, it uses them to punish people the Crown believes can be
found guilty.

3.1 THE VICTIM AS VICTIM OF THE CRIMINAL JUSTICE SYSTEM

Students and professionals in the criminal justice system have become increasingly aware that
the victim of a criminal often becomes the victim of criminal justice system as well as once the
victim reports his victimization to the police-the gateway to the criminal justice system-he
routinely faces postponements, delays, rescheduling, and other frustrations. All their means loss
of earnings, waste of time, payment of transportation and other expenses, discouragement, and
the painful realization that the system does not live up to its ideals and does not serve its
constituency, but instead serves only itself. Many believe that the victim is the most disregarded
participant in criminal justice proceedings. In practice, after the victim has reported his
victimization and provided information to the police, he may not hear from the police or the
prosecutor for a long time, if ever, cases are disposed of without any consultation with the victim
if and when the victim is called for the trial, he is treated simply as the witness for the state and is
subject to long delays, postponements, and other frustrating experiences.

3.2 GRIEVANCES AND PROBLEMS OF VICTIMS

The grievances of the victims can be summarized as follows-

 1. Inadequacy of the law in allowing the victim to participate in the investigation
prosecution in a criminal case instituted on a police report
2. Lack of inform and delay inform about their right and security
3. Disregard response of police during encounter, may Lack of inform their about in seeking
Disregard response of the hay bad impact. May attitude to the criminal justice
4. They are do not treated with compassion and respectful for their dignity.
5. Police never inform the crime victim about the possibilities at obtaining assistance
Pratical legal avide, compensation from the offender and stale
6. The victim should be able to obtain information on the outcome at the police"
investigation, police did not give the clear and complete prosecution

7. ignore the victim right to ask for few by the competent authority,

8. Dung the questioning they treated as Disregarded

9. , when accused do not fined the victim do not get the compensation

10. Failure on the part of the police and prosecution to keep the victims informed about
progress of the case
11. Inconvenience during interrogation by the police and lengthy court proceeding.
12. Lack of prompt medical assistance to the victims of body offences and victims of
accident.
13. Lack of legal assistance to the victim.
14. Lack of protection when the victims are threatened by the offender.
15. Failure in restitution of victim.
16. Do not provide proper compensation
Along with these grievances, the victims of crimes faced multifarious problems:

i Economic strain of the family

ii Change in Social role of dependents.

 iii. Frustration and helplessness leading to suicide.

iv. Social stigma.

v. Emergence of criminal behavior.

An important aspect of investigating a violent crime is an understanding of the victim and the
relation that their lifestyle or personality characteristics may have contributed to the offender
choosing them as a victim. Please do not misunderstand the previous statement. In no way are
victims being blamed for becoming a victim of a violent crime. Even high risk victims (to be
described shortly) have the right to live how they wish without becoming a victim of the type of
offenses described on this site. Yet the fact remains, that to understand the offender, one must
first understand the victim.

Victims are classified during an investigation in three general categories that describe the level of
risk their lifestyle represents in relation to the violent crime that has been committed. The
importance of understanding this in an investigation is directly related back to the level of risk to
the offender during the commission of the crime. This information is important to the
investigation to better understand the sophistication or possible pathology of the offender.

High Risk Victims - Victims in this group have a lifestyle that makes them a higher risk for
being a victim of a violent crime. The most obvious high risk victim is the prostitute. Prostitutes
place themselves at risk every single time they go to work. Prostitutes are high risk because they
will get into a stranger's car; go to secluded areas with strangers, and for the most part attempt to
conceal their actions for legal reasons. Offenders often rely on all these factors and specifically
target prostitutes because it lowers their chances of becoming a suspect in the crime. Therefore,
in this example, the prostitute is a high risk victim creating a lower risk to the offender.

Moderate Risk Victims - Victims that fall into this category are lower risk victims, but for some
reason were in a situation that placed them in a greater level of risk. A person that is stranded on
a dark, secluded highway due to a flat tire that accepts a ride from a stranger and is then
victimized would be a good example of this type of victim level risk.

Low Risk Victims - The lifestyle of these individuals would normally not place them in any
degree of risk for becoming a victim of a violent crime. These individuals stay out of trouble, do
not have peers that are criminal, are aware of their surroundings and attempt to take precautions
to not become a victim. They lock the doors, do not use drugs, and do not go into areas that are
dark and secluded.

Conclusion

Above mentioned legal provisions are directly against the principles of victimology. It clearly
shows little knowledge or absence of deep research by the legislature while framing the law. And
there is heavy influence of criminological schooling during drafting of law. The new proposed
amendment also indirectly defeats the victim logical philosophy and is not in the line of modern
victimology. Current legal provisions and proposed amendments ultimately defeat the spirit of
Article 21 of the Constitution. Therefore suitable solution might ‘Interim compensation and final
compensation must be provided by the state when offender is not traced or crime is not
established and interim compensation must be provided by the court when offender is traced and
crime is established’ because the state is the ultimate guardian of every citizen
REFERENCE

 SANISH MAHARJAN VICTIMOLOGY: THEORETICAL AND APPLIED DEVELOPMENT

IN INDIA at 10
 PROF .MADHAV PRASAD ACHARTA, ASSOC.PROF.GANESH BADHUR
BHATTARI. “CRIMINOLOFY PENOLOGY” BHRIKUTI ACADEMIC PUBLICATION,
( NEW PLAZZA, KATHMANDU
 THE CONSTITUTION OF NEPAL 2072
 MULUKI PENAL CODE 2074
 CRIMINAL OFFENCES (SENTENCING EXECUTION ACT )2074 BS