Victimology -- The Weak Limb of Criminal Justice Delivery System

(By V.K. Babu Prakash, Munsiff, Nedumamgad)

“Everything said here has been said before.  As no one listens to the same, let us begin it again from the beginning”.  

-- Andre Gide, the French Thinker

The concept of victim’s right is gaining the ground now in India with the terrorist attacks and other criminal acts are on the rise. Much is talked about the rights of the terrorists as accused who must get fair trial, legal aid and equality before law. Yet, Indian Society should first and foremost recognise the rights of the victims of terrorism and other criminal acts. The victims also have right to live, something that the terrorists and criminals do not recognise. Nobody talks about the right of the victim and his sufferings, but every body shouts about the rights of the accused. The Honourable High Court of Kerala in a recent decision held that the accused need not even appear before the trial Magistrate during pre-trial, trial or at the stage of pronouncing Judgment. It has limited the scope of trial before a Magistrate which meant that trial is a process whereby the accused and victim participate to help the court to find the truth from false. As the accused need not appear in the Court, the trial has practically become a duel between the prosecution and defence lawyer. Inspite of the fact that Code of Criminal Procedure prescribes that what all evidence that the prosecution has to render, it has to be rendered in the presence of the accused, now the accused need not be present in Court to watch the evidence and participate in the trial. Everything now he can pass on the buck of the lawyer who will be the knight in shining garb protecting his rights all throughout. But what about the hapless victim? He has to run from the pillar of the Police Station to the post of the prosecutor’s office to move his grievance redressed before the court of law. Nowhere he gets any proper attention. His status is only that of a witness who laid the information or witnessed the incident. His status is not at all glorious unlike the status of an accused who has every privilege under the sun. The victim will be ridiculed in the police station. He will be ignored in the prosecutor’s office. His plight is in tedium and trauma every where. Even in the court he does not get any fair treatment. There he has to bear the brunt of the clever and skilled defence lawyer who will terrorize him to become mute. If the victim is not sophisticated he cannot withstand the onslaught. Court’s power is limited which cannot always protect the victim during the course of trial as it may attribute bias to the victim. So, victim is a victim everywhere.

The Indian Penal Code defines offence and prescribes punishment and its mode of sentence.   It does not recognize victim’s right and its mode of enforcement. Though Code of Criminal Procedure recognizes the right of victim in a pale and limited sphere, it is not at all comprehensive enough. S.357 Cr.P.C. though recognizes the award of compensation to the victim, it has not developed into the branch of victimology at all. The Law Commission in its 41st report has recommended that power of awarding compensation by Criminal Courts to the victim of crime must be exercised by the court in a sense of reality. The Supreme Court also in a number of decisions held that S.357 Cr.P.C. empowers the criminal Court to award compensation to victim which power should be exercised liberally so as to meet the ends of justice in a better way. Never the less, awarding monetary compensation does not uplift the right and status of the victim in par with the right and status enjoyed by the accused before the Criminal Justice Delivery System.

Justice Malimath’s Committee appointed to recommend measures to revamp criminal Justice Delivery System made so many recommendations in its report. Among them the most progressive and drastic suggestion was the recommendation to uplift the status and role of victim in the system. Unfortunately, it was not considered or implemented by the Government of India. What is the solution to get justice by the accused and victim equally? The United Nations in 1985 formulated certain basic concepts to render justice to the victim of crimes. It recognized four basic rights. Those are:-

(1) Access to Justice:- There must be immediate measure taken to redress the grievance-victim must be made aware of his legal rights. Free legal aid should be provided to conduct cases. Victim’s privacy and security should be protected.

(2) Wealth and property:- The property or wealth which is lost or destroyed should be restored to victim, or else adequate compensation shall be provided.

(3) Compensation:  If adequate compensation could not be realised from the accused, it must be realised from the Government. Government should formulate  a National Compensation Fund for victims for the same.

(4) Assistance:-   Victim should be provided with Individual help and   assistance-Government, NGOS and Society should be accountable for it.

In England a law was enacted in tune with the UN concepts in 1995. British Home Department conducted an enquiry in 2001 on Criminal Justice Delivery System in England. The result was shocking. In Criminal Cases, the interest of the accused alone was given much predominance than the interest of the victim. When each case ended in acquittal, the condition of the victim fell from bad to worst. Investigation process takes long time. Trial takes too long a time in Courts. The state agency does not care to inform the progress or the stage of the case to the victim. It does not care about the safety or security of the victim. When the victim contacts the state agency, he gets only an indifferent attitude. Thus England made some vital changes in its system. When an accused is enlarged on bail, it would be informed to the victim. Victim can approach the court and file affidavit setting forth his grievances. State agency should provide adequate safety and security to the victim and the witnesses. A Code must be made setting out the rights of the victim before the Criminal Justice Delivery System.

In France the System is more victim friendly. From the stage of investigation till trial is concluded, the victim has an important role to play. If the prosecution does not conduct the trial fair, the victim can conduct the case by his own chosen counsel. Victim can lay evidence other than that laid by the prosecution. But, what about the system in India? The victim does not have any role during the investigation other than giving a statement before the agency. There is no guarantee that the agency would record the true statement. The statement has no value before the Court. Victim does not have much roles to play in trial too. The Courts do not recognise the right of the victim to oppose the bail application of the accused. He is either an informant or a witness at the most. The status of rape victim is more sorrowful.   She has to narrate the incident of rape again and again, word by word to the investigating agency who would mostly packed by men. She will be hunted by the media to curry-favour their spicy stories. At last she has to stand the test of the trial ordeal in the court. When all these are over, she will be a crushed being who has to live the rest of her life with a ravished body and wounded psyche. When clever lawyers manage to get favourable orders for their accused clientele, it really enlarges the rights of the accused. The weak victim will in turn be pushed down and down into the deep pit of his miseries. The present Criminal Justice Delivery System is nothing but an acrobatic exercise between the prosecutor and defence lawyer, where the defence lawyer wins, for sure. The system has to change and it has to change drastically.

Paperless Courts -- A Revolutionary Concept

(By V.B. Hari Narayan, Advocate, High Court of Kerala)

The Courts in India are flooded with cases which in other words means, loads and loads of papers. Imagine a situation where the filing of cases are done and their judgments are delivered through e-system. The Herculean task of storing the case bundles containing important documents could be avoided and the amount spent on stationary can be utilized for other meaningful purposes.  Dubai Courts are setting an example by trying to emerge as a paper free Court. 

The Dubai Courts have recognized the importance of keeping pace with modern technology, to maintain leading position in judicial, legal and research services. The electronic systems that are in place in Dubai Courts are the most sophisticated of their kind in the world. 

Collecting petitions and deposits relating to suits or cases electronically through the website, in coordination with the e-government are benefiting hundreds of litigants, who can pay electronically for the petitions and deposits of more than ten type of cases such as Shariah cases, inheritance related cases, cases relating to minors, the civil/general civil execution cases etc. The e-payment system provides simplified payment solutions to serve clients and reviewers. 

Apart from the above, there are as many as 437 services provided by Dubai Courts for all its clientele. Perhaps the most prominent ones of these electronic services are those provided to Judges, such as making available the rules for deciding cases, and to lawyers including lawyer’s communication service through e-mail designed to know resolutions of the hearings for their cases held that day. Additionally, lawyers can get all the necessary information about dates and places of next day’s sessions, saving their time.  This is in line with Dubai e-government strategy to convert all services provided by the Departments to online services. 

One such unique but simple system adopted by Dubai Courts is relating to book borrowing. The Dubai Court Library has activated and developed an electronic service to follow up the borrowed books through introduction of electronic reminder notices. This system is characterized by accurate follow up of the borrowing process to ensure return of books in due time. 

Dubai Courts have been working to manage law suits through sophisticated and cohesive electronic systems which cover all steps of suit proceedings from registration process, litigation, issuance of judgments to following up of executions at all three court levels (First instance, Appeal and Supreme). For instance, informing the litigants/lawyers through SMS about the posting of cases is a very useful and friendly mechanism. 

India too has understood the importance of modernisation in the legal front. Infact the Supreme Court of India has constituted a committee for monitoring the Computerisation of Law Courts throughout India. The simple but efficient methods followed by the Dubai Courts could be adopted in the Indian Legal field also if necessary amendments are made to the procedural laws. For eg. serving of summons/notice through electronic media, including SMS as an alternative mechanism needs serious consideration. The procedural laws based on Anglo-saxon jurisprudence, hitherto followed by Indian Courts have necessarily to change according to the changing times. 

Section 19(2) of the Prevention of Food Adulteration Act,

1954 -- Protection for Whom ?

(By P. Rajan, Advocate, Thalassery)

S.19(2) of the P.F.A. Act 1954 speaks of the defence, a vendor or retail dealer can take, in the event of prosecution launched against such person, under the provisions of the P.F.A. Act, if the article sold to the Food Inspector is purchased from a wholesale dealer or manufacturer with a cash bill or warranty. This provision, though appears to be introduced to protect the purchasers of food items from distributors and dealers even with proper warranty; often the requirements necessary under S.19(2) of the Act are not able to be proved by the vendor. The conditions postulated to get the benefit of S.19(2) are (1) the article was supplied by or purchased from a licenced dealer or manufacturer with requisite warranty, (2) Stored the food item till sample is taken by the Food inspector, properly and given by the dealer in the same condition, as purchased. Rule 50 of the Act mentions about the conditions relating to licence. Needless to say, to get the benefit of S.19(2) to the person concerned, in the event of prosecution under this Act, he has to prove the twin legal mandate detailed under sub-cl. (a) and (b) of S.19(2). 

Term warranty, being not defined in the P.F.A. Act, definition available in the Sale of Goods Act, 1930 is important in matters under the P.F.A. Act so also explanation in the Act. S.14 of the Act imposes an obligation on the manufacturer or distributor of any food item, to give a written warranty relating to the quality and nature of the item, to the purchaser. Thus the vendor should be aware of two things while buying the goods; distributor’s licence and required warranty in any form as contemplated under the Act, to establish the quality or purity of the commodity. The point to ponder is how far a retail dealer or vendor can succeed in knowing about the licence details to prove the same on a future date, when he is prosecuted under the Act relating to the food article he purchased.

Successive warranty is permissible under the Act, as articles may pass though several dealers, before reaching the final stage of sampling by the Food Inspector. In a State like Kerala, pulses, food grains and different varieties of packed food articles are being brought from other States. Dealers are made to believe the label declaration, regarding the licence details of the wholesale dealer while purchasing articles shown in the cash memo or Bill and when prosecution is initiated, to prove the defence under S.19(2), he has to prove the licence also, by depending solely on the bill details. When summons is issued to the wholesale dealer, in many cases it remains unserved if the place of business is in some other State; case is not different, even if the wholesale dealer is also impleaded at the primary stage itself, licencing authority is directed to furnish the licence details, either no response from the official who is bound to produce it or no licence during the relevant time. The futile exercise of the innocent vendor paves way for escape of the real offender.

The provision of law is stringent, the only solace hitherto is the ruling reported in (AIR 1995 SC 1983) (Unnikrishnan v. State). This ruling is rendered probably, considering the special circumstances and facts of that case, by the Apex Court, though no licence of the manufacturer was proved by the retail dealer. In another decision reported in (2005 (1) KLT 635) Varghese v. State of Kerala, Kerala High Court has held that, it is obligatory for the vendor to prove that manufacturer, distributor or dealer from whom the indictee purchased the article, is duly licenced to deal with such product and the Supreme Court ruling mentioned earlier, remains explained by the learned Judge.

Parrot cry, from different corners relating to prosecutions under the P.F.A. Act against petty vendors and their conviction; is in the air for long and the same cannot be in wilderness; deserves redressal. It is no secret that minnows are being caught - big sharks escape, even if caught, by piercing the net, laments many Manufacturer or wholesaler, though expected to obtain licence - even if obtains, does not disclose as needed under law, subsequently becomes bete noire of the purchaser when prosecution commences. The sentence portion of the Act is concerned, minimum jail sentence is provided and any deviation is impermissible for the trial courts, paradox of the penal laws is strange - for eg. drunken driving, unless the vehicle becomes a death machine on the road, invites only fine as sentence often, considering the percentage of alcohol in the blood of the offender, likewise some offences involving moral turpitude or public tranquility do not demand minimum mandatory jail sentence under the Penal Code. A milk vendor selling milk; a pint of it even, sans added, water - but difference in fat and milk solid not fat, gets minimum three months jail sentence for no fault of the milkman - but of the animal, as no device or method to detect the defficiency, for such hapless person. Adulteration of food item is no doubt a social menace but the relevant law -most of the sections need necessary change, to be made by the State Government atleast, to punish the actual culprit and also to exonerate the innocent and ignorant; invoking the relevant articles of Constitutional Law, at the earliest.

Not Goldsmith But Nelson

(In response to 2008 (2) KLT Journal 21)

(By K. Ramakumar, Sr.Advocate, HIgh Court of Kerala)

The High Court of Kerala quite often issues directions to the officers of the Executive to consider the grievances of the petitioners before it with a time limit fixed to ensure speedy compliance with the order. Judgments command that “it shall be done as expeditiousiy as possible and at any rate within three months”. English, continuing to be the language of the administration, one of the enterprising civil servants, who was issued with the above direction told a litigant “look here, the Hon’ble High Court has permitted to fix any rate I like”. So much is the standard of English knowledge among the officialdom, in spite of the fact that English has been the language that ruled the people well over 100 years in this country. Another officer said when he was presented with an order from the High Court that “there will be a direction”, amazingly, “let that direction come then I will pass orders”, evidencing the total lack of familiarity with mundane english expressions.

So is unfortunately the position in the Judiciary. An old timer warhorse, an octogenarian in age but not in appearance or agility, has contributed a highly commendable Article in (2008 (2) KLT Journal page 21) on the need to develop command of language by legal practitioners. The exhortation is eclectic as well as effulgent. Before however, starting reading Oliver Goldsmith or Charles Dickens, one wishes, they do some homework with Wren and Martin. They cannot turn a Nelson’s eye to “Nelson’s Grammar”, an equally authentic Grammar Book. Grammar these days is the biggest casuality in judicial language. In one of the reported judgments including in the esteemed Law Journal KLT, a case has been described as one for “eviction of a building”. No building can be evicted except by use of a Bulldozer or the JCB of Munnar notoriety. A tenant alone can be evicted under the Rent Control Act. Yet the above faulty and flawed expression has got into the judgment, ironically of a Judge who later described the contents of a counter affidavit filed by the Government as “a murderous assault on an alien language”. Such assaults are becoming common these days. Usages like “recordical evidence” have already started creeping in the judgments of subordinate courts but fortunately not in the High Court. “Today moving” however has already found its way even in judgments of the High Court”. Some legal practitioners in the High Court use the strange expression “would your Lordship may”, which sounds absolutely absurd. An exuberant young counsel stunned the Court by submitting he has “an Adipoli decision” on a point. While nobody can dispute that English is a great gift of Goddess Saraswathi to us, its intricate grammar cannot be given a go bye for convenience and expediency. If you stick to English, it has to be ensured that it is good English or at least correct English. Ever heard of a professor, who told a student “I am not vacant come behind”, meaning thereby that he is not free then but the student may come later and the guileless Advocate’s Clerk who sent a wedding invitation with a request “Presents only. No presence”. Nor can liberties be permitted with English language like our Tamilian brethren do as “head-going affair” or “elephant matter”. There is no “hand and arithmetic”, to such amusing howlers. 

Our connection with English is solely because the British ruled us for more than hundred years. English itself had to fight for survival and revival in its own land against Roman and Latin, the language of the rulers. The East Africans look upon French language with admiration and awe because it was the language of their rulers. So did the Indonesians about the Dutch in the past, not now. The Goans go about gleefully with smattering of Portugese because they ruled Goa from Lisbon. We adore English because it was the ruler’s language and to speak in ruler’s language was fashionable. Indeed our mindset continues to be English, which is why we are aping the English in dress in a hot country like India. English has never been a unifying force, as is believed by my learned, esteemed senior friend, but it has only divided. Thousands of years ago, a Sankaracharya from Kerala had ascended “the Sarvanjyapeeda” in Kashmir, proclaiming to the whole world the unity of Bharath and he was not obviously speaking in English. The expression “Asethu Himalaya” had come long before the English conquered our country. There existed a shared sacred thought common from Kargil to Kanyakumari, about the Kailas, long before the British set their foot on the soil of India. The Sanathana Dharma had always proclaimed “Loka Samastha Sukhino Bhavanthu”, a great thought not with much parallels. It is not for nothing that Prophet Mohamed blessed our country saying “blessed be the country that bears thy name”. Hind was the name of one of His consorts”. It was only after the British came, the feeling that all those who are born between the Himalayas and the Hindu Ocean are ‘Hindus’, slowly started vanishing, which ultimately led to the biggest catastrophe in history, the vivisection of the country, but for which India would have by now been one of the strongest of powers in the whole world. Please do not forget that ours is the country which owns the precious and richest language in the world - Sanskrit, which unfortunately is neglected on petty parochial considerations. Even Quatar, a Muslim Princedom has discovered that for use in Computers, Sanskrit is the best. It is a treasure house of all knowledges, the Sastras, the Vedas, the Upanishads etc., that give the world the message of prosperity, peace and tranquility. Let us not therefore, forget our own heritage, our own languages and our own proud culture.

English, but good English, certainly yes. But not the  English mind set.