A Sequel To Serajuddin Ansari Case

To start with 'victim' was neither defined in our earlier code of 1898 or revamped Code of 1974. According to the genius Campbell Black who published Blacks Law Dictionary, so often referred to in Indian Courts and world over it means; "a person harmed by a crime tort, or other wrong". Simply put, according to this definition, any person wronged either by a crime or otherwise is a victim. With this definition as a baseline let us put to test our own criminal jurisprudence.

To proceed with the discussion of the term, it is important to note that sometime in the 1950s certain persons such as Margery Fry, an English Penal Reformer, started a movement world over, demanding better rights to victims of crimes. The argument was that victims of crimes gained nothing from the process of trial which merely concerned itself with the punitive aspect of the crime. This idea was taken up by many countries as a result Victim Compensation Schemes and Boards were set up in UK, USA, Australia, New Zealand, Canada etc.

Our 42^nd Law Commission also turned its attention to this aspect which submitted its report on 2.6.1971 and noting that,' With the emergence of the Social welfare State, these traditional notions of the State immunity are undergoing rapid change. The idea that victim of the crime deserves as much attention from the State as the criminal and that if the state fails to protect its citizens against violence ,it can legitimately be called upon to compensate the victim, is gaining ground in western countries'. However when the new Code was enacted in 1974 this idea found no place in it.

But Section 357 provided that whenever fine constituted part of the sentence it could be directed to be paid to the person who had suffered a loss by reason of the act for which the accused was being fined. Further Section 358 stipulated that when anyone caused the Police to arrest another person, and, if the magistrate was of the opinion that there was no sufficient ground of such arrest he could award compensation to be paid as fine by the person who got him arrested for the person's loss of time and expenses. So, in effect both the two sections speak of compensating a person who had suffered a wrong without describing him a victim.

It is to be noted that Section 358 speaks of a person 'groundlessly arrested' at the instance of another who alone was supposed to compensate for loss of time and resources. This Section presupposes a substantive case having been filed. The filter before the matter comes to the Magistrate is twofold. First, institution of the case and secondly arrest. If no offence is made out it is well within the powers of the Police to refuse registration of the case and thereafter it is entirely within the discretion of the police to effect arrest or not. This was the position even before section 41 A which substantially curtails the right of the police from wanton arrests, was enacted. So, the normal query would be as to when we speak of compensation on account of 'groundless arrest' and not 'groundless allegations' why was the Police exonerated from compensating the victim since logically it was the police which had arrested the person.

The other notable point is that section 358 confines itself to merely a person 'groundlessly arrested' as opposed to being 'groundlessly charged'. There is a distinction between 'groundless arrest' and 'groundless charge'. And here is the catch. This Section exonerates a Judge who groundlessly charges a person like the previous section had the police. Section 114 Evidence Act which says that there is a presumption that "judicial and official acts have been regularly performed' further steps in their support. This is of course not a foolproof presumption because often -times the Executive has been visited with all kinds of censures by the Judiciary.

To proceed further on the subject, it appears 177^th Law commission report suggested, "At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system" and with this object the Code was amended in 2009 and Section 357 A came into the statute for whatever it is worth as per which victims are to be paid compensation by the State as well and it required that States set up compensation boards. I will neither vouch for its existence nor its efficiency. Anyways along with introduction of Section 357 A classification of a Victim was added in the definition clause of Section 2 of the Code. Please mark, it reads as -","Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused has been charged….."

Thus, a victim is no longer simply a person who has suffered a wrong but is confined to one who had suffered a wrong from the person charged. So in effect law recognizes a victim only when the wrong is visible, whether or not the wrong doer has been identified (Sec 357 A (4) ).

Evidently the 14 years Serajuddin's suffering was not a visible wrong, nor was the wrong doer identifiable so he did not qualify being called a 'Victim'. No doubt, he like the ISRO scientist S. Nambi Narayanan was compensated by the Court but this compensation does not have a statutory sanction but is based on an interpretation of Article 21.Our unfortunate practical experience is that 'interpretation', 'discretion' are highly nebulous and slippery terms in Indian Courts. Therefore, the definition of 'victim' being exclusionary should be suitably amended to include all persons who have suffered a wrong and not merely those who are victims of a visible wrong.

I am fully aware that there are broadly two types of cases. First is the type where in the facts of the case no offence is made out which should be dismissed at the stage of cognizance /charge if instituted. Second when the allegations do make out a case which require a trial.

Evidently there was a prima facie case against Serajuddin who had been alleged to have assaulted his mother and caused her death so the Magistrate could not possibly have held that he was 'groundlessly arrested' so even by implication, he could not be termed a 'victim' at this stage.

So let us examine what is the position in trial. The 'due process' clause in our Constitution by way of Article 21 says 'no person shall be deprived of his life or personal liberty except according to procedure established by law'.

Undoubtedly Serajuddin was deprived of his personal liberty on account of violation of a substantive law so no grievance could be raised on his behalf on this score but fact remains that the Court passed no order on bail even though chargesheet was not submitted within the stipulated and almost two years later.

So evidently, he is a 'victim' because he suffered a wrong on account of the callous attitude of the persons in charge of him.

Here it would also be important to keep in mind that there are normally three kinds of scenarios in a Case;

• when the Court does justice
• when it does Injustice
• when it does neither of the two.

As I would look at it the second and the third scenarios cause a wrong and create victims and the third is the more lethal because one almost never has a remedy against it.

In the case of Serajuddin the third scenario would also apply and therefore a grave wrong was done to him and hence he was most definitely a 'victim'.

Sometimes I think we in the Judiciary, (I take the blame too), are ardent fans of non- performance and status quo and would beat bureaucracy hollow in this game.

It is time we ask uncomfortable questions of ourselves and it is time that we fix responsibility for gross non-performance of a judicial officer. In order to do this the first step would be to change the manner in which we grade our Judicial officers. I would suggest that on the administrative side a Judicial Officer be graded, in addition to other things, importantly on the manner in which he has dealt with cases in his Court i.e.the number of adjournments he has granted, the reasons thereof, what steps he had taken for disposal of the case. The assessment should be on the entire order sheet not just final products of judgements.

For the rest, I would request that they remind themselves that they are human beings appointed just like other officials, only difference being that they have the moral authority to act as final arbiters, but nevertheless, are paid from the public exchequer and therefore accountable to an important stake holder i.e. the tax paying citizen. We should also seriously do some heart searching in respect to our attitude towards the litigants. Is it condescending and patronizing and if it is, one should try to amend, because we have to remember living in a democracy, as judges, we are not talking to our subjects but healing their hurts.

So, let me ask my erudite readers what is the probable solution?

Oh yes I heard your answer that we must learn to take responsibility, as much for our inaction, as for our acts.

Once again answer is correct so like betaal I must fly off to my tree, in hope of seeing a better tomorrow.