`Ignoring The Rights Of Rape Victim`

By January 21, 2013 15:00

By A. Romen Kumar Singh

For too long, the law has centered its attention more on the rights of the criminal than on the victims of the crime. It is high time we reverse this trend and put the highest priority on the victims and potential victims”
-GERALD R. FORD, PRESIDENT, U.S.A (1975)

It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a serious of problems for the criminal justice system. There are cries for harshest penalties, but often times such cries eclipse the real plight of the victim. Rape is an experience which shakes the foundation of the lives of the victims. For many, its effect is a long term one, impairing their capacity for personal relationships, altering their behaviour and values and generating endless fear. In addition to trauma of the rape itself, victims have had to suffer further agony during legal proceedings.

The Supreme Court in Delhi Domestic working Women’s Forum V. Union of India (1995) 1SCC 14 a Bench of 3 Judges observed at Para 14: We will only point out the defects of the existing System.

Complaints are handled roughly and are not given attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in Court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the Court proceedings added to and prolonged the psychological stress they had had to suffer as a result of rape itself.

The are broad parameters in assisting the victims of rape:

1. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings to prepare her for the case and to assist her in the police station and in the Court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complaint’s interest in the police station represent her till the end of the case.

2. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

3. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

4. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

5. The advocate shall be appointed by the Court, upon application by the police of the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of Court was sought or obtained.

6. In all rape trails anonymity of the victim must be maintained, as far as necessary.

7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the constitution of India to set up criminal Injuries compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

8. Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries compensation Board whether or not conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

RECOMMENTATION OF MALIMATH COMMITTEE

The Malimath committee, Volume 1, Committee on Reforms of Criminal Justice System, 2003 has also recommended that a victim has a right to be represented by an advocate of his choice and that an advocate shall be provided at the expense of the State if the victim is not in a position to afford a lawyer.

It is a weakness of our jurisprudence that the victims of crime and the distress of the dependants of the victim do not attract the attention of law. Indeed, the victim reparation is the vanishing point of our criminal law. This is the deficiency in the system which must be rectified by the legislature.

DIRECTING A WOMAN TO APPEAR IN POLICE STATION IS VIOLATIVE OF S.160 Cr.P.C.

The investigation officer under section 160 Cr. Pc. may require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case and such person shall attend as so required.

Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. It is the statutory right of the woman rape victim not to appear in police station in connection with the investigation:

Invigorating the provision of law, the Apex Court by a Bench of 3 Judges in a case as reported in Nandini Satpathy V. P.L. Dan, A.I.R. 1978 S.C. 1025 at Head Note D held that act of directing a woman to appear in police station is violative of Section 160 (1) of Cr. Pc and held at page 17 that such deviances must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel behind this legislative proscription which keeps juveniles and females from Police Company except at the former’s safe residence. May be, in later years, community confidence and consciousness will regard police force as entitled to better trust and soften the Stigmatising or suspicious provisions now writ across the code.

VICTIMS RIGHT GUARANTEED

The code of Criminal Procedure (Amendment) Act, 2008 (Act of 2005) brought a radical and impactful change in the Indian Criminal Justice System by introducing and redefining the rights of the victims. The victims were conferred more rights and the major changes that took place are summarised as below:-

The term victim was defined by inserting a new section 2(WA) “VICTIM” means a person who has suffered any loss or injury caused by a reason of the act or omission for which the accused persons has been charged and the expression “VICTIM” includes his or her guardian or legal heir.” The definition incorporated under this section widens the expression “victim”. The new definition includes a guardian or legal heir of the victim and thus confers them with rights equivalent to a victim.

A proviso has been added to Section 24(8) whereby the victim is enable to engage an advocate of his choice to assist the public prosecutor. Before amendment, it was the Central Government or the State Government who may appoint a Special Public Prosecutor for any case or class of cases.  A proviso has been inserted in clause (a) of Section 26 of Cr.P.C., which provides that any offence under Section 376 and Sections 376 A to 376 D of the Indian Penal Code, 1860 shall be tried as far as practicable by a Court presided over by a woman keeping in view of the provisions of the above law, it can be concluded that the rape victim may approach the authority to conduct the trial of the rape case by a Court presided over by a woman. With the insertion of a second proviso the Section 157 Cr.P.C. in relation to evidence of rape, recording of statement of the rape victim shall be conducted at the residence of the victim or in place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality. The above provision of law makes it clear that recording of statement of the rape victim shall not be done at the Police Station. The new sub-section (1A) of Section 173 Cr.P.C. enjoins upon the investigating officer investigating a case in relation to rape of a child to complete the investigation within 3 months from the date on which the information was recorded by the officer-in-charge of the police station.

With the recommendation of the Law Commission of India, a new proviso has been inserted in Section 327(2) of Cr.P.C. which provides that a woman Judge or Magistrate as far as practicable shall conduct the trial in relation to rape case in camera.  Thus, the Criminal Procedure (Amendment) Act, 2008 has bestowed various rights. Role of the Woman Judge has been reflected in providing speedy and fair justice to the rape victim.  A new Section 195A in the Criminal Procedure code has been inserted to make provision for a witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code for threatening any person to give false evidence.

A new proviso has been inserted in Section 372 of the code of criminal Procedure whereby the victim shall have the right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. A new Section 357A was also incorporated in the code of criminal Procedure in order to provide for the State Government to prepare, in co-ordination with the Central Government, a Scheme called “Victim compensation Scheme” for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime. With the introduction of this scheme the victim has been assured of a compensation amount.

A new proviso to Section 309 of the code of criminal Procedure has been incorporated for completing the trail of offence under Sections 376 to 376D within a period of two months which is reproduced as below:-

“Provided that when the inquiry or trail relates to an offence under Section 376 to 376D of the Indian Penal Code (45 of 1860), the inquiry or trail shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses”

No adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; The fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

Where a witness is present in a Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit dispensing with the examination-in-chief or cross examination of the witness, as the case may be.

The victim of a crime is truly entitled to fair and speedy trial and the trial  court is under an obligation to conduct trial on day to day basis once the statement of witness is recorded in conformity with the guidelines issued by the Supreme Court. Trail courts should also be mindful that long adjournment of trial will have adverse serious consequences affecting the society at large:

CONCLUSION

The rights of the victim such as, Victim Compensation Scheme, right to appeal, right to legal representation etc. although are incorporated by the Amendment Act of 2008 and directives of the Apex Court of India, all the victims are not aware of their rights and effective steps are required to be taken to spread legal awareness about the rights for an effective implementation. Dispensing justice to victims of crime can no longer be ignored. The introduction of more victim rights will encourage victim participation and thus victim involvement can help restore a sense of control and enhance their faith in the criminal justice system.

Firing, Mindsets, Reform
BREATHLESS
By January 21, 2013 15:00