Expounding The Contours For Victim Participation In Criminal Justice System
In the common law owing to stringent burden of proof and the presumption of innocence, the criminal justice system favours the accused. We place a significant emphasis on a fair trial, and as a result, we have a highly adversarial system of litigation in which the judge has a minimum role and is not involved in guiding the investigation or prosecution. The Malimath committee report on...
In the common law owing to stringent burden of proof and the presumption of innocence, the criminal justice system favours the accused. We place a significant emphasis on a fair trial, and as a result, we have a highly adversarial system of litigation in which the judge has a minimum role and is not involved in guiding the investigation or prosecution. The Malimath committee report on the criminal justice system said in very emphatic language that a neutral state is expected to strike between both goals of the criminal justice system. Consequently, it suggested to implement an inquisitorial system.
Section24 CrPC talks about the Public Prosecutor. The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
In 2007, the Madhav Menon Committee drafted the National Policy on Criminal Justice in concurrence with the Malimath Committee, and the Criminal Procedure Amendment (Act) of 2008 added a provision to Section 24 of the Code of Criminal Procedure, subsection (8), to ensure that victims are adequately represented in court.
Importance Of Victim's Role In Investigation:
The victim or the informant who initiates the criminal law is not a party to the proceeding, unless the proceedings are launched by a private complainant filed to a magistrate.
The Indian legal system should be modified to satisfy the acknowledged demands of victims of crime. The State must take the necessary efforts to ensure that the victim plays her requisite role in the investigation and prosecution of the case. The victim should be satisfied that she is not being forgotten by the government.
The Cr.P.C. further mandates that the first informant get a copy of the report forwarded to the Magistrate when the inquiry is concluded. However, the police often violate this requirement. In addition to guaranteeing strict compliance with the aforementioned criteria, a provision should be created requiring the involved police officer to provide a copy of the report to the victim upon request, even if she is not the first informant. This should be accompanied with the victim's right to appeal the report's conclusions before a higher police officer.
Analysing Victim's Role In Prosecution:
Relevant provisions of the Criminal Procedure Code should be mentioned. In accordance with Section225 of the Criminal Procedure Act, a Public Prosecutor (P.P.) must handle all prosecutions before a Court of Session. The title of Section301 is "Appearance by Public Prosecutors." Section 301(1) stipulates that the Public Prosecutor or Assistant Public Prosecutor ("A.P.P.") in charge of a case may present and argue in court without written authorization. The section 301(2) that follows seems to qualify the general norm regarding the appearance of P.P.s. It stipulates that when a private person advises a lawyer to prosecute a person, the P.P. or A.P.P. in charge of the matter must conduct the prosecution, and the lawyer so instructed may only operate under the supervision of the P.P. or A.P.P., as the case may be. With the Court's permission, he may offer written arguments after the evidence has been presented. This implies that a private party's attorney, such as the victim or the first informant, may help the Prosecutor and present closed written arguments with the court's consent.
Judicial Interpretation
In Mallikarjun Kodagali v. The State of Karnataka, the Court acknowledged that, under the criminal justice system, the rights of the accused far exceed those of the victim. Not only did the Supreme Court call for the establishment of a victim impact statement to ensure the victim's involvement in the trial proceedings, but it also restored the victims' ability to appeal against an unfavorable ruling.
The landmark and laudable judgement titled Amir Hamza Shaikh & Ors v. State of Maharashtra & Anr, Court has laid out unequivocally the time-tested legal position that the Magistrate is not obligated to grant permission to a victim to conduct prosecution upon a mere request, but the victim has the right to assist the Court during an attempt before the Magistrate. It was noted that the Magistrate may evaluate if the victim is competent to help the court and that the trial is not so complicated that the victim cannot comprehend it. Upon satisfaction of such circumstances, the Magistrate would be entirely within his or her authority to give the victim authorization to assume responsibility for the pending investigation.
Reasons For Limited Role Of Victim In The Criminal Trial
The prevalent system for the administration of criminal justice in India is the adversarial system. The sole parties are the prosecution and the accused. They present their respective accounts, backed by evidence, and the Sessions Judge/Magistrate acts as an arbiter to assess whether the prosecution has proven its case beyond reasonable doubt. If the accused so desires, he is given the chance to take a specific stance in defence of his case. However, no statute grants the victim the ability to intervene as a party, take an active role, and collaborate with the prosecuting agency to demonstrate the guilt of the defendant.
When a crime is committed, an FIR is filed, the state assumes control, and the victim's part ends. And he or she must depend only on the state to ensure that the perpetrator of the crime is correctly prosecuted. As a matter of right, the victim's role is relatively restricted. There is no right to engage in the trial process after a complaint has been filed, but there are routes for intervention that are subject to the discretion of police or the judges.
In Rekha Murarka v. The State of West Bengal, the Supreme Court ruled that even while a victim may engage a private counsel to aid the prosecution, the counsel cannot make oral arguments or test and cross-examine the witnesses. Inadvertently, this decision violates faith since it restricts the victim's involvement in the justice delivery system by limiting the scope of private prosecution as a viable remedy. Simultaneously, it clarifies the position of the Public Prosecutor as a trustworthy confidant of the victim who is accountable for using all legal measures to achieve justice.
Instead of examining such a normative balance between the rights of the accused and victim, the judgement restricts the victim's rights because it is based on an incorrect understanding of the role and obligations of the victim's advocate. According to the judgement, a victim's advocate cannot be given the right to participate because, first, the prosecution's case may be weakened if the victim's counsel insists on questioning a witness left out on purpose by the prosecution; second, the trial will devolve into a "vengeful battle" between the victim's counsel and the accused; and third, the victim's counsel's lack of experience may result in procedural deficiencies.
The Necessity For Reform
In India, public prosecutors are overburdened and unable to accomplish the intended outcomes for their clients. The current state of circumstances strongly implies that the number of public prosecutors is disproportionate to the number of cases, therefore overburdening the public prosecutors. Private Counsel may devote adequate effort to evaluate the human nature and characteristics of witnesses in order to get favourable disclosures.
In Suneel Kumar Singh v.State of U.P., the court distinguished between the two most significant phrases: "help the prosecution" and "assist the public prosecutor." From literal examination of subsection 2 of section 301 of the Criminal Procedure Code, it is clear that even if any private person asks a pleader to prosecute another individual in any court, the prosecution must be undertaken by the Public Prosecutor. However, a provision inserted to Section 24 (8) of the Criminal Procedure Code permits the victim's advocate to actively engage in criminal proceedings.
Under the existing position envisioned in our criminal justice system, the public prosecutor cannot adequately consider the victims' interests, needs, and requirements. Instead, it is necessary to improve victim involvement by giving private counsels a larger voice in the trial's conduct, without jeopardising the accused's interests.
In accordance with Article 21 of our Constitution, a fair trial is a basic right of every citizen, including the victims of the case, and the realm of a fair trial comprises fair and effective measures provided by law to establish innocence. The denial of the private prosecution's access to cross-examination of witnesses in a criminal process by the highest court is thus contrary to the standards of a fair trial and infringes the victim's basic right under Part III of the Constitution. By limiting the scope of private counsel in a criminal proceeding, the Supreme Court has subjected the victims to "secondary victimisation."
In the Indian legal process, the victim has faith in the government and the criminal justice system and expects the public prosecutor to carry out his or her duty with the greatest sincerity and to obtain the offender's conviction. Nonetheless, as minister of justice, the PP is obligated to help the court in obtaining a fair and accurate picture of the case; thus, any harm caused to the victim is incidental. Therefore, it is undeniable that the administration of justice is predicated on providing proper counsel and protection for victims. In view of the above, the cause of victim justice would be immensely advanced if the Supreme Court were to reconsider its rationale and assumptions in order to interpret the provision of CrPC correctly.
Views are personal