Victim Participation In Criminal Justice System

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T21:41:10.233849+00:00

Updated: 2026-08-26T17:05:06.433+00:00

VICTIM PARTICIPATION IN CRIMINAL JUSTICE SYSTEM

Kriti Mishra, LLM, National Law School of India University, Bengaluru

ABSTRACT

This paper examines the evolving role of victims in the Indian criminal justice system, highlighting the importance of victim participation for a balanced judicial process. Traditionally, India's adversarial system has marginalized victims, who often remain passive observers while the state and accused navigate the legal proceedings. However, recent legislative changes, particularly the Bhartiya Nagarik Suraksha Sanhita (BNSS), have started to address this imbalance by granting victims enhanced rights to participate, receive information, and secure compensation. Drawing from a comparative analysis of the legal framework of India and the U. S. and U. K. systems, in this paper, the major gaps that India needs to bridge are highlighted, addressing particularly the problems of accountability of the judiciary, provision of victim support services and implementation of victim rights.

Additionally, the research underscores the need for a more victim-centric approach within law enforcement, judicial proceedings, and rehabilitation services. It concludes with providing suggestions for enhancing the legislative guarantees and institutional support for the victims to promote fairness in the system.

INTRODUCTION

India has an adversarial system of justice administration. The criminal cases are often a hustle between the accused and the state which is represented by the public prosecutor. The most important stakeholder in a criminal case who is often neglected is the victim. Very little importance is envisaged for the victims of crime and despite being affected the most, they are witnessing the fight between the state and the accused from a distance. Their plight is often neglected and their needs are rights are often compromised. This article emphasises on the role of the victim in a criminal justice system and advocates for an enhanced participation by them. It argues for making them a significant player in the system, instead of pushing them to the periphery. Under the existing criminal laws, there were several provisions which incorporate the participatory role of the victims in the process.

The new laws aim to enhance the efficiency, fairness and accountability of the justice system. They claim to have been inspired by the Law Commission Reports and place victim as a stakeholder in the criminal justice system and offering them rights and opportunities. However, the many reforms suggested by the Supreme Courts in various cases still find no legal mention. The research would involve a comprehensive study of the various forms in which a victim participates in the criminal justice system, the changes introduced by the new criminal laws in favour of victim rights, how far we have come and how many more miles do we need to travel to stand at par with the International standards.

RESEARCH AIM

The primary objective of the paper titled “Victim Participation in the Criminal Justice System” is to: • Examine the extent, forms, and impact of victim participation in the criminal justice process. • Identify the key legal developments introduced by the new criminal laws • Compare the prevalent legal landscape with foreign jurisdictions

RESEARCH SCOPE

The scope of the research would be a study of the new and old criminal laws and a comparison of the Indian Laws with foreign jurisdictions of US and UK.

HYPOTHESIS

“Enhanced victim participation in the criminal justice system leads to improved judicial outcomes, increased victim satisfaction, and a more balanced and equitable legal process.”

RESEARCH QUESTIONS

What are the various forms of victim participation in the criminal justice system? • What are the changes introduced by the new criminal laws related to the rights of victims? • What are the gaps to be bridged to stand at par with the International Standards? • What are the recommendations of the hon’ble Supreme Court concerning the rights of victim?

STYLE OF WRITING

The method incorporated in the research would be purely doctrinal involving a descriptive analysis of the current position.

SOURCES OF DATA

Primary sources: Case Laws, Statutes, Treatise and Conventions Secondary Sources: Articles, Journals, Law Reviews and Reports

MODE OF CITATION

The author would be using Bluebook 21st edition as a mode of citation in this research paper.

CHAPTER 1: A. VICTIM PARTICIPATION IN THE CRIMINAL JUSTICE

PROCESS

There are four categories that any State should thrive to promote in order to adopt a victim centric approach: • At the investigation and the trial stage by furnishing information. • Encouraging the victim to take active part in the criminal justice process by facilitation and assistance. • Granting compensation and monetary reliefs. • Providing extended support services such as medical aid, rehabilitation, counselling and legal aid1 A host of rights giving a say to the victim in the criminal justice process were incorporated

through the 2008 amendment to the Code of Criminal Procedure. Section 2(wa) of the CRPC laid down the definition of the victim for the first time. The definition covered the legal heir and the guardian of the victim as well in providing compensation for any injury suffered as a result of any act or omission on the part of the accused. Participation In The Stage Of Investigation The participation of the victim at the stage of investigation begins from lodging of the FIR, followed by recording of the statement of the witness and to be sent for medical examination if necessary. In case the police refuse to lodge the FIR, the CRPC provides other provisions under section 154(2) and section 190 as well, where the victim can send the FIR to the SP or can directly reach to the magistrate respectively.

Following this, the victim is then called upon to tender evidence in the court, which is often delayed by multiple adjournments. The police investigate the case, file the chargesheet and then the magistrates decides whether or not to take cognizance upon it. The victim merely sets the criminal law in motion but the prosecution

1 Erin Ann O'Hara, Victim Participation in the Criminal Process, 13 J.L. & POL'y 229 (2005).

steers it. 2 Participation In The Stage Of Prosecution There are a few areas under which a victim is allowed to participate in the stage of the prosecution. The sole in charge of prosecuting the case is the public prosecutor (PP). Under Section 301, he can be assisted by an advocate of the choice of the informant or the victim sometimes, but even in that case the prosecution will be entirely led by him and the other advocate will merely be for the purpose of assisting. Section 302, which specifically covers the trial in a magistrate’s court provides that a limited intervention by the advocate appointed by the informant or victim is still possible in a magistrate’s court. 3 In addition to this, if the Magistrate does not take cognizance after the police report is submitted, the victim gets an opportunity to address the court.

4 Lastly, with the amendment of 2006, the concept of Plea Bargaining envisaged under from sections 265A to 265L deserve a special mention. Under Plea Bargaining an effective right is given to the victim under which it can participate in a meeting to work out a mutually satisfactory disposition of the case along with an agreement on the compensation to be payable. Section 372 was also amended and it gave the right to appeal to the victim against any order involving an acquittal of the accused, conviction for a lesser offence, or granting inadequate compensation to the victim. 5 Assistance to the prosecution by engaging an advocate by the victims was also provided under section 24(8).

Regarding the victims of sexual offences, a relief was incorporated by giving them the relaxation of recording of statements at their own residence or place of choice in the presence of her guardian, parents, relatives or a social worker recorded by a women police officer. The amending act also provides that the trail as far as possible be conducted by a women judge or a magistrate. Section 357 enumerated the compensatory rights of the victim where they are entitled to a compensation from the accused after his conviction from fine imposed on him. Section 357A further requires state governments to establish victim compensation schemes. 2 Justice P. V. Reddi, Role of Victim in the Criminal Justice Process, 18(1) NATIONAL LAW SCHOOL OF INDIA

REVIEW (2006)

3 J.K. International v. State (2001) 3 SCC 462 (India)

4 Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 (India)

5 N.2

B. CHANGES INTRODUCED BY THE BNSS IN RELATION TO THE RIGHTS OF

THE VICTIMS

Victim Centric Reforms in India largely revolves around three pillars related to the right to participation, right to information, and the right to compensation for the injury suffered. The BNSS, which claims to have been inspired by the 152nd, 154th Law Commission Reports and the Malimath Committee Report incorporates certain reforms related to the rights of the victims under various provisions. “Victim” defined under clause 2(1)(y) of the BNSS, means a person who has suffered any loss or injury caused by reason of the act or omission of the accused person and includes the guardian or legal heir of such victim; The definition has been expanded to eliminate the need of formally charging the accused for granting of compensation to the victim. This change has expedited the process of compensation given to the victim in cases where it is available.

6 Right to Participation Clause 360 BNSS : Section 321 CRPC laid down that the prosecution with the consent of the court, can withdraw the case at any time before a judgment is pronounced. The CRPC did not provide victim to be heard at this stage; Hence, there was a lacuna in the law where a case could be withdrawn with the consent of the court without giving any say to the victim. Clause

360 of the BNSS stems in to cure this defect. The proviso to clause 360 reads as “provided

further that no court shall allow such withdrawal without giving an opportunity of being heard to the victim of the case” this is a significant acknowledgment of the right of the victims as an important stakeholder in the criminal justice process.7 Right to Information Clause 173(2) of the BNSS lays down that the victim or the informant shall be given the copy of the FIR free of cost. Such a provision was not present under the section 154 of the CRPC.

6 Namita

Raje, Victim: The Conundrum over definition, Live Law (May 26th, 2024) (Last Visited on Aug 28th, 2024). 7 Criminal Law Bills Decoded, PROJECT 39A (Nov 23, 2023) (Last Visited on Aug 25th, 2024).

This forms a significant recognition of the information rights of the victims as the FIR is the first piece of information regarding any offence. Clause 176(1) of the BNSS provides protection to the victims of rape. It lays down that the statements of such victims can be recorded through audio visual means which enhances transparency in the investigation. Clause 193(3) of the BNSS acknowledges the delay in the investigation and the effect it leads on a victim and thus provides that the police officers are required to inform the victim about the progress of the investigation within 90 days so that the victim is more informed regarding the lapses and delays in the investigation. This ensures tha the victim has a satisfaction of knowing what is happening.

However, the duty of the police is to merely inform the victim about the progress of the case and it does not extend to hold them accountable for such delay and pendency of the investigation. Therefore, even though the right is a step forward towards a victim centric approach, non-enforceability of the same restrains the utilization of the right. Clause 193(2) of the BNSS also specifically mentions a timeline for the completion of investigation within 2 months for certain offences committed under sections 64, 65,66,67,68,70 and 71 BNS and also regarding the POCSO offences to address the delay in investigation in these cases to provide timely resolution to the victim. Clause 230 of the BNSS ensures enhanced participatory right of the victims and recognises the importance of supplying certain documents to the victim.

It provides that where a case is instituted on a police report, the magistrate shall within 14 days provide to the advocate to the victim certain documents such as the Police Report, FIR, and other statements and confessions recorded of any witnesses or accused. Section 207 of the CRPC only mandated such supply of documents to the accused. But the BNSS extends the same to the victim as well so as to ensure better participation in the criminal justice process. However, a catch is that the rights under 193(3) and 230 are present for those victims, which are represented by an advocate. Hence, if a victim socio- economically disadvantaged, the utilisation of these rights becomes difficult where the victim is not able to afford to hire legal services and in case there is non-availability of a free legal aid to these categories of victims.

Clause 176(1)(b) of the BNSS provides that if there are not sufficient grounds for the police

officer to investigate the case, he shall inform the informant abut the same. Under BNSS no such expansion has been done to cover the victims under its ambit. However, just as the supreme courts have previously extended the rights to the informants to the victims as well, similarly maybe this provision could also be extended. Other Rights Clause 173: Under clause 173 the court has explicitly provided what was previously mandated by the supreme court in the judgment of Lalita Kumari v. Government of Uttar Pradesh. 8The BNSS has mandated the police to register the Zero FIRs. A Zero FIR is one which can be registered by any police station despite having no jurisdiction, when it receives any information regarding commission of a cognisable offence. It was introduced after the Nirbhaya Gang Rape case, based on the recommendation of the Justice Verma Committee.

It also finds its mention in various supreme court judgments. 9 The concept of Zero FIRs being mandated as a law under the act is a positive step towards addressing one of the integral issue the victims faced regarding the registration of FIRs as the police used to avoid it citing lack of territorial jurisdiction. The BNSS has also introduced the E-FIRs, which enhance the accessibility of the victims and the informants to register FIR from any place without having been visiting a police station. EFIRs are more convenient as they eliminate the possibility of refusal by the police to register FIRs and also make the experience hassle free so that people come forward in registering FIRs. The people can also track the status of their complaints online.

8 (2014) 2 SCC 1 (India).

9 Satvinder Kaur vs State, AIR 1999 SC 3596 (India).

CHAPTER 2:

A. POSITION OF VICTIM RIGHTS JURISPRUDENCE IN THE INTERNATIONAL

COMMUNITY

Victim Rights and the United Nations The UN on Nov 29th, 1985 adopted the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” (UN Declaration)10 under which the need to acknowledge and protect the rights of the victims was recognised comprehensively for the first time. It proposed to establish certain basic standards and norms in the national laws of the respective countries for inculcating victim centric laws. The Declaration recognised four critical components to be realised: access to justice and fair treatment; Restitution; compensation; and assistance.

11 This declaration serves as the Magna Carta of the Victim Rights Internationally and has made certain suggestions which deserve a special mention: • Right of being treated with respect and recognition • Right of having proper support services • Right of being informed about the case • Right to the presence and provide an impact statement during sentencing • Right to legal representation • Compensation from the offender and the state12 Position in the US US has several legislations in favour of the Victim rights enforcement mechanism. The Witness Protection Act of 1982, incorporates restitution and victim impact statements during sentencing 10 UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, November 29, 1985. 11 S. Muralidharan, Rights of Victims in the Criminal Justice System, National Human Rights J. (2004).

12 Aymen Najm Abed, L Jayashree, Rights of Victims in India with International Perspective, 7(3) J. OF INNOVATIVE TECHNOLOGIES AND INNOVATIVE RESEARCH (2020).

of offenders. The Victims of Crimes Act 1984 (VOCA)13, essentially provided for creation of funds for the victims of crime. The funds collected from various sources for e. g. fines, penalties, bond forfeitures etc is redistributed for victim compensation and assistance. The Victims Right and Restitution Act, 1990, came as an enormous rights mechanism for the victims. Under the Act the Victims could get notified of the court proceedings and to attend them, could be informed of the change on the offenders’ detention, could consult the prosecutors, could be protected against offenders’ aggression amongst others. Under The Violent Crime Control Act and the Law Enforcement Act the victims are given the right to speak at sentencing hearings and restitution was made mandatory in sexual harassment cases.

14 The Mandatory Restitution Act 1996, covered specific cased of fraud, property crimes, consumer product tampering, and drug related crimes under its ambit and provided for full restitution. Further, the right to speedy trial and participation in parole proceedings were also inculcated.

15 The Torture Victim Relief Act 1998 is another legislation providing relief specifically to the

victims of torture. The Crime Victims Rights Act, 2004 (CVRA) was the most significant legislation furthering the victims’ rights. It provided for creation of a judicial enforcement regime and gave a number of participation rights comprising not only the right to be treated fairly and respecting of victims’ dignity and privacy but also a host of other procedural rights as well for e. g. right to speedy resolution, timely restitution, protection from accused, notice of any hearing or parole proceeding involving the accused, reasonable hearing involving parole, release, sentence etc. 16 Position in the UK The Code of Practice for Victims of Crime mainly focusses on the information right of the victims. Vulnerable and Intimidated witnesses are covered under enhances services through Witness Care Units. The victims are identified and periodically informed about the case progress.

17 Victim Personal Statement Scheme (2001), under which the victim submits a personal statement to the police agencies to inform the criminal justice agencies about their

13 Barbara E. Smith, Constituionalizing Victims Rights in Victims of Crime, 2 THOUSAND OAKS, SAGE

PUBLICATION 247-249 (1999).

14 Dean G.Kilpatrick, David Beatry and Susan Smith Howley, The Rights of Crime Victims; Does the legal Protection make a Difference? (Washington DC, US Department of Justice, National Institute of Justice, 1998). 15 John Hagan, Victims before the Law: A Study of Victim Involvement in the Criminal Justice Process, 73 J. CRIM. L. & CRIMINOLOGY 317 (1982).

16 David E. Aaronson, New Rights and Remedies: The Federal Crime Victims' Rights Act of 2004 28(4) PACE

LAW REVIEW (2008).

17 Power of Criminal Justice Act of 1973.

specific service needs. These statements are a part of the victim’s file. The Criminal Justice Act 1988, this act took away the discretionary element of granting compensation provided under the 1973 Act and made it obligatory to grant compensation and further to provide reasons in case the court is not granting the compensation where it is empowered to do so. 18 The compensation orders prevented the victim from the hassle of filling a civil suit for the same. The court awarded compensation under various categories of personal injuries, loss or damage. The Criminal Injuries Compensation Scheme (1964) was enacted under the Criminal Injuries Compensation Act, 1995 was primarily introduced as an experiment on a non-statutory basis to provide compensation to the victims not by the offenders but arranged by the state. UK is the first county to establish such a scheme.

19 Under the scheme victims of violent acts were paid purely financial compensation who have sustained injuries under the act. Later, the criminal justice act of 1988 replaced the scheme and made it an explicit legal right of the victims to compensation. The act also broadens the definitions of the victim and covers a large variety of victims under the act eligible for compensation. Novel schemes like ‘Victim Support’ and ‘Victim’s Welfare’ were also launched to enlarge the victim rights. These schemes included the basic rights of the victims such as the right to be heard, to be protected by the enforcement agencies, to receive support, assistance, compensation and restitution. The Victims Charters further laid down the standards of service to be provided to the victim and their family.

The Criminal Injury Compensation Act prescribed a standard range of compensation to be granted to the victim depending upon the nature of injuries which were grouped in particular categories. 20 The National Association of Victim Support Schemes was established by the British Government to prescribe uniform victims service standards across the states and was further modified to clarify what services are meant for a particular category of the victims and which service providers will cater to it. 21

18 N.14.

19 B.Jayasimha, A Comparative Analysis of Victims’ Rights in US, UK and India, 4(12) GLO. J. FOR RESEARCH ANALYTICS (2015).

20 Sec 108-117 and schedules 6 and 7 to the Act set out the scheme

21 N. 20.

B. WHAT DOES THE JUDICIARY LAY DOWN ON VICTIM PARTICIAPTION

RIGHTS?

The Judiciary has laid down guidelines and standards for expanding the horizon of the victim related rights several times. Jagjeet Singh v. Ashish Mishra22 The court held that the presence of the victim during the hearing of the bail application shall be done to ensure better participation of victims in the criminal proceedings. The victim should be given a right to be heard at every stage of the legal proceeding- from the investigation till the judgment their participatory rights should be unhindered. Saleem v. State (NCT of Delhi)23 The court held that the participatory rights of the victims should not be compromised in the quest of maintaining confidentiality. It held that even without impleading, victims can exercise their right to be heard.

Section 439(1A) was further expanded to include the victims right to be heard in consideration of anticipatory bail applications and also during other petitions by the accused regarding suspension of sentences, parole, or other interim reliefs. The court also provides that legal aid counsels should be appointed wherever requires so that the participatory rights of the accused can be effectively exercised and not just for the name’s sake. Delhi Domestic Working Women’s Forum v. Union of India24 In this case the SC enshrined principles related to the survivors of rape. The SC emphasised on the significance of providing legal aid to the victims of rape, starting from the stage of police station.

The court held that a meaningful participation of the victims of rape can be achieved only through her involvement by legal representation at every stage of the process from explaining the nature of proceedings to her to being questioned and assistance in the police station. The advocate should be available throughout the case to represent the interests of the victim.

22 (2022) 9 SCC 321.

23 2023 SCC OnLine Del 2190.

24 (1995) 1 SCC 14 [15].

However, these guidelines still receive no central legislation to support the same. Moreover, all these guidelines emphasizing on the victim centric approach will not yield results if they are not supported by free legal aid. Mallikarjun Kodagali v. State of Karnataka25 This case recognised the need for psychological support and counselling to the victim depending on the nature of the crime. It emphasized on the rehabilitation needs of the victim. It also laid down provisions regarding hearing the victim during sentencing of the accused. A victim impact assessment should be given due recognition in order to inflict appropriate punishment on the accused. Karan v.

State of NCT of Delhi26 The Delhi High Court in this case necessitated the need to incorporate the Victim Impact Statements (VIS) in consultation with the victims so as to pronounce an effective judgment while sentencing the accused. Bhagwant Singh v. Commissioner of Police27, the apex court ruled that the police report is forwarded to the magistrate having jurisdiction in the matter when the police investigation is complete, and that the victim must be consulted if the magistrate declines to file charges. Informant v. State of Karnataka, the court held that the victim or the informant should get their say at the bail cancellation proceedings under section 439(2). 28

CONCLUSION AND SUGGESTIONS

In India due to the presence of an adversarial system, there are two parties in a criminal trial: the prosecution and the accused. The trial revolves around their submissions and the victim gets no statutory right to intervene or play an active role in the proceeding from the beginning to the investigation till the conclusion of trial. In contrast, in foreign jurisdictions like France, the victims have a right to participate in the trial as proper parties and can approach the court

25 (2019) 2 SCC 752.

26 277 (2021) DLT 195 (FB).

27 (1985) 2 SCC 537.

28 CRL.P.No.3701/2023 KHC (India)

if any delay or distortion in the proceedings. The role played by the victims throughout the proceedings is at par with the prosecution. Even in the countries, which have a system similar to ours for e.g. US, there is a prevalence of Victim Impact Statements, to be taken into account before sentencing an accused or considering his bail application. A balanced approach should be undertaken to provide a limited participation to the victims. It

will only help the prosecution in establishing the case the court in the voyage of discovery of truth. At the pre-trial stage they must be heard before framing the charge. During the trial, they should be allowed to intervene if some material witness or evidence is not taken into consideration and to put supplemental questions to the witnesses. Just as US, UK and other developed countries have substantial legislations to support the victims of crime, India should also enact exclusive laws to support the victim compensation and rehabilitation. The provisions mentioned under different criminal laws are not enough to address the issue of victim rights. The Supreme Court has given various guidelines on several occasions towards a victim centric approach however little has been done by the government to incorporate these into the laws.

The Supreme Court itself has not been consistent in granting compensation to the victims and mostly in cases it has considered the status and means of the accused to grant compensation to the victims. In such a case, while making a balance between the rights of the accused and the victims, the scale inadvertently turns towards the accused and the victims are provided meagre amounts which oftens turns as a mockery towards their rights. In such a situation setting up of a Central/State managed injury compensation fund, as is prevalent in other countries would be beneficial. The state managed compensation funds set up under 357A of the CRPC and the central victim compensation funds are the two schemes available for the victims of crime. However, despite these schemes, adequate compensation seems as a distant dream for the victims.

In Re Alarming Rise in Number of Reported Child Incident Case29 a shocking revelation came to the forefront where it was revealed that the mandate of the scheme under section 357A rarely gets fulfilled and no interim or final compensation has been awarded in 99% of the cases. The state and the various authorities like the Court, NALSA, DLSA need to come together and ensure that

29 (2020 7 SCC 87)

adequate compensation is granted to the victims and the only compensation scheme available for the victims just does not remain in papers. Separate medical aid funds should be established for victims of violent crimes as monetary compensation will not be enough in those cases. The Law Commission Reports have recommended establishing of a criminal injuries’ compensation board, establishing of funds for victims of custodial crimes, framing of exclusive legislations providing different compensation for different offences; however, these are yet to find a mention in the laws. In foreign countries, providing monetary relief is just one arm of victim rights and victim support schemes, in addition to the legal aid and the compensation funds have played a significant impact.

Support Services to address the material, medical, psychological and social needs of the victims, counselling by experts, rehabilitation of poor workers have played a huge role in furthering the victim centric rights. The NGOs can play a significant role in this regard. The police stations and hospital also need to be sensitized regarding treatment of victims as it is often seen that victims are merely treated a chattel in these places. Comprehensive and effective guidelines regarding treatment of victims in these places should also be on the agenda of the government. The BNSS, which claims to have been inspired by the Malimath Committee Reports seem to have missed out on important recommendations suggested by the Committee.

Suggestions like impleading of the LRs of the victim in case the victim is dead, for an offence punishable with more than 7 years imprisonment, right to be represented by the advocate of his choice, to be provided by the state if he is not in a position to hire, to produce evidence with the leave of the court, to be heard in the grant or cancellation of bail, and to advance arguments once the prosecution is over with theirs have been left out.