Rights of Victims in a Trial

Author: Hamza Tariq

The jurisprudence on the rights of the victim are constantly evolving. Much of this evolving jurisprudence is owed to the 154th Report of the Law Commission and  the Committee on the Reforms in the Criminal Justice System, which called for an independent right of victims to participate in trial.  More recently, the Supreme Court, in Jagjit Singh v. Ashish Mishra, (2022) 9 SCC 321 noted that:

 “15. Until recently, criminal law had been viewed on a dimensional plane wherein the courts were required to adjudicate between the accused and the State. The “victim”—the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to prevent and punish “crime” had surreptitiously turned its back on the “victim”, the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve.”

The Court also clarified that this evolving jurisprudence was a substantive right and “totally independent, incomparable, and are not accessory or auxiliary to those of the State under the CrPC” (Code of Criminal Procedure). The Court, therefore, recognized that the State could not be a substitute for the victim in criminal proceedings. What are these rights that victims have during a trial?

Part I: General Criminal Procedure and the BNSS

The CrPC [in Sec 2(wa)] defined ‘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 including” and the expression included “ his or her guardian or legal heir”. Hence, for someone to be eligible to be a victim (and to the consequent ‘benefits’, including compensation) under the CrPC, the accused should have been charged. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in its definition (in Sec. 2(1)(y)) has dispensed with this requirement, which implies that charge is not a prerequisite to access the consequential benefits, in line with victim compensation regimes. Section 18(8) also specifies that the Court may permit victims to engage their own lawyers to assist the prosecution.

1. Right to Get a Copy of the First Information Report (FIR) and Chargesheet

While under the CrPC [Section 154(2)], ‘the informant’ was entitled to a copy of the FIR free of cost, under  Section 173(2) of BNSS, such right has been expanded to the victim as well besides the informant. Besides, if the case has been instituted on a police report, under Section 230, besides the FIR, the victim, within 14 days, is entitled to receive, free of cost, the police report; the statements recorded under sub-section (3) of section 180 of all persons; confession statements, if any; and any other documents which were part of the police report.  However, such a right is only available “if [the victim is] represented by the advocate.” In the absence of a vested right to free legal aid and assistance for victims and proper implementation of this regime, for most victims, this right only exists on paper.

2. Refusal to Record FIR

• On the refusal of the officer in charge of the police to write an FIR, the CrPC provided for the mechanism to send the first information report by post to the address of the Superintendent of Police. The same right is available under Section 173(4) of the BNSS.
• On the Superintendent of Police’s denial to take up the case, the option of writing directly to the Magistrate, who has jurisdiction to take cognizance under Section 190 of CrPC read with 156(3) of CrPC exists in BNSS under Section 175(3)  as well.
• Besides the above options, the right of the victim/complainant to directly prefer a complaint to a Magistrate who can either enquire himself or direct investigation by the police [u/S. 200 CrPC] continues under S.223 of the BNSS.

3. Zero FIRs

Under Section 173, BNSS has institutionalised the concept of zero FIRs i.e. one can register an FIR at any police station irrespective of where the offence took place. While this right previously exists and was mandated by the Central Government and through Courts’ jurisprudence including in cases like  Lalita Kumari v. Government of Uttar Pradesh, non-registration of FIRs was a major issue that will surely be addressed to certain extent by this clause.

4. Right to be Informed During the Stage of Investigation

That being said, BNSS does give a more expanded right to be informed to both the victim and the informant. Cl.193(3) and Cl. 193(4)  requires the police to inform the victim and the informant of the progress in the investigation within ninety days including through electronic mode, but here to the requirement of “if [the victim is] represented by the advocate.”

 5. Right in Case of Closure Report

Under Sec 157(2) of CrPC, the police was only mandated to inform just the witness in case of decision to stop further investigation or in case of filing of closure report. BNSS does not expand this right to the victim. The Hon’ble Supreme Court in Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 had held that where the Magistrate decides not to take cognizance based on the report filed under Section 173(2)(i), notice must be issued, and an opportunity of a hearing must be provided to the informant. The Court, however,  recognized the discretion granted to the Magistrate to issue notice and give a right to hearing to the victim/next of kin of the victim, at par with the informant. This is a missed opportunity to crystallize this right on behalf of the victims.

6. Plea Bargaining and Satisfactory Disposition of the Case

In cases where the accused makes an application for plea bargaining, the BNSS has retained the right of the victim to participate in these proceedings (under Section 265D, CrPC and now S. 291, BNSS). The Court is required to make sure that the proceedings are voluntary.

7. Withdrawal of Prosecution

Sec. 321 of the CrPC allows the prosecutor to withdraw the prosecution of a case, at any time before the judgment is pronounced, with the consent of the Court. Section 360 of the BNSS has added another requirement for such withdrawal i.e such withdrawal can only take place after hearing the victim.

Part II: Special Provisions for Victims of Identity-based Violence

In cases of identity-based violence, special rights have been vested in victims in recognition of their particular vulnerability. For instance, taking into account, the difficulties faced by victims of caste atrocities in accessing justice, the SC/ST (Prevention of Atrocities) Act, 1989  was amended in 2016 and Section 15A added to safeguard the rights of victims of atrocities, their dependents and witnesses to ensure justice.

Similarly, in Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501, the Court guaranteed the following rights to victims of mob violence:

Documents attached: MHA Advisory on Comprehensive Approach Towards Crimes Against Women