CRIMINOLOGY

UNIT 2
Radical theories of Crime
Radical Theory shows the relationship between crime and law by
which the affluent community in the society use their power in
relation to the law in order to rule over the poor or less fortunate
section of the society.
Radical Criminology has been highly criticized as it fails to take other
existing reasons for the existence of crime. It also fails to elaborate
on the crime rate being low in some of the capitalist nations given
the fact that radical theory believes capitalism is always a source of
crime. Moreover, there are a lot of countries that have succeeded in
overthrowing capitalism and yet face a high rate of crime.
CHARACTERISTIC, ORIGIN, DEVELOPMENT
Characteristics
1. Radical theory is connected to conflict criminology where it
focuses on the Marxist theory and the ruling class.
2. Radical criminology must be anti-statist and anti-capitalist. It must
not succumb to the myth, as libertarians do, that there is an
opposition between capitalism and the state.
3. It considers that the ruling class uses crime as a tool to subjugate
the lower class.
4. It is not supported by any of the policies of the government.
5. It rejects all the theories of crimes including psychological and
biological theory as it analyses all groups of people and might label
some of them as criminals.
6. It should identify exploitation of labour and stand up with the laws
that fight against anti- vagrancy acts and prison workhouse.
ORIGIN
Radical criminology comes from Instrumental Marxism, a form of
Marxism. In the 1960s in the United States of America, it became
really popular during the Civil Rights Movement and Anti-War
Movement. A different group of masses started to protest against the
economical and social inequality that the lower class was going
through, thus creating awareness not only within the country but all
over the world. “In 1990 the Division of Critical Criminology was
recognized by the American Society of Criminology, which solidified
radical criminology as a legit theory.”
DEVELOPMENT
A group of abolitionists and anarchists connected with the
criminology department at Kwantlen Polytechnic University (a Critical
Criminology Working Group). Anti-capitalist advice has been given in
order to get rid of this kind of radical crime. It has also been
published in various journals so that people would get to know about
it.
Crime against Children: A Critical Analysis
Children's are the future of a nation as they are the ones who will
take the country in the track of progress and prosperity but in
present scenario the crime rate against the builders of the nation i.e.
"children" are increasing day by day. They are being forcefully
indulged in various activities such as trafficking, begging, they are
being sold just for the sake of money, and are being killed also.

Sexual offence against the children is a very serious crime which not
only affects them physically but also, they are mentally affected. This
article deals with the various offences against the children including
the sexual offences. It also focuses on various case laws for better
understanding. Though various laws are being made in order to
protect the future of our country but still they are not safe, as in the
year 2016-2017 there was an increase in the crime rate up to 20%. It
is the need of the hour to rethink on the present law in order to
prevent the crime against the children.

Introduction
Since ages, children have been the victims of the one abuse or the
other. Though it is highly unbelievable that, where we consider
children's to be the future of our nation but it would not be wrong to
say that they have been neglected a lot. The crimes which are
committed against children are not restricted to any specific gender
or age group, rather it happens because of their incapability to
appreciate the nature of the offences which are being committed
against them and their consequences thereof, which ultimately
makes them a soft target of the offender. It is due to their inherent
innocence and maturity which are usually related to a children's age
make them an offender's favorite victim.

Various offences are being conducted against children, they are

either being sold, enslaved, exploited, physically abused and are
killed too. And this victimization starts before the birth of a child
itself.

For example, foeticide, gender determination of foetus and causing

the miscarriage and if it is found to be a girl child then she is being
killed in the mother's womb itself. This practice is going since ages
and with the technological development, the act has been done,
though various laws have been made but still in some parts of the
country they are still in existence.

Not only this, there are several other offences that a child is victim of.
These offences are, child trafficking, sex tourism, incest, child rape,
child pornography, devadasi system, and prostitution.

Though, India with the second largest child population in the world
and there are certain provisions that are being made for the
protection of children, but still the crime rate against the builder or
future of our nation is increasing day by day. There is a need to
prevent these acts with the help of stricter laws.

Crime Against Children

Children are the most vulnerable and innocent victims of crime. They
can be easily targeted and many a times they being targeted by the
known. They can be parents, relatives, caretakers, guardian or any
other who are being appointed to look after them.

Following are the crimes that are being committed against children
and they are as follows:
Child Abandonment: - it occurs when a parent, guardian or a person
in charge of a child either deserts a child without any regard for the
child's safety or welfare of the child and without considering child's
physical health. It includes:
 Unwillingness in providing the care, support or supervision for
the child
 Abandoning an infant in a trash cans or at the road side or
leaving at some other doorsteps.
 Being absent from the home for a particular time period, which
creates a substantial risk of serious nature to a child left in the
home.
 Making only less efforts to support and communicate with the
abandoned child
Statutory Rape or Sexual Assault: - It refers to sexual relations with
someone below the "age of consent" i.e. not in a state of
understanding the concept of consent. In such cases individuals are
too young to give the consent and it ultimately results into child
molestation.[1]

Sexual abuse and exploitation: - According to the National Crime

Records Bureau (NCRB), every 15 minutes a child is sexually abused
in India. And the crime rate is increasing day by day. [2]

Child sexual abuse also known as child molestation is a form of child

abuse, where an adult uses the child for sexual stimulation. It
includes engaging a child in sexual activities, indecent exposure, child
grooming, child sexual exploitation or including a child to produce
child pornography.[3] Molestations and rapes are not solely
restricted to any gender at present. A child irrespective of its gender
can be exposed to sexual offences such as molestation or rape. Such
offences might be committed by some outsiders but it is also
committed by a family member, school teacher, friend, house help
etc.

Generally, a child fails to comprehend the severity of the nature of

the act due to lack of knowledge. Or sometimes, even the child is
going through this pain but the child stays silent due to the threats
given from the perpetrators, or sometimes the family advises them
to be silent for the purpose of maintaining the so-called family
honour. There has been an increase in the sexual offences against a
child and the majority of the cases do not get reported as the family
members are concerned with their family honour or the reputation.

Cruelty:
Basically, cruelty is any act or omission which inflicts mental or
physical harm upon an individual, irrespective of the age, gender,
mental capacity etc.

Yelling at a child just to scare him or her can amount to cruelty. Our
society feels that 'spare the rod shall spoil a child'. Society is of view
that unless parents or guardian behaves like a martinet with a child,
such child shall never be capable of being disciplined in life. Even
educational institutions have the impression that physical
punishment for mistakes is the sole way of inducing discipline within
a child. But in present scenario, cruelty towards child in educational
institutions has seen a decline due to strict legislative enactments.
But the domestic abuse of children goes on unaddressed as they are
unaware of their rights. Therefore, cruelty has become an accepted
notion.

Employment of child for begging:

Children are being forcefully employed for the purpose of begging.
Employment of children as beggars exists on a global scale,
irrespective of country's economic scenario. The most shocking
factor is that, the child is sometimes being used by his or her parents
to beg for alms. The money that they have received for begging ends
up with those who find a child as a convenient source of earning.

Intoxicating a Child: - Children who fall prey to such kinds of racket,

are sometimes forced to consume intoxicants such as alcohol, drugs,
cigarettes etc. so that it becomes easier for the people i.e. the racket
leader to control them and they can in order to fulfil their greed, they
can force the children to do any kind of unlawful activities.

Child pornography: - It refers to the inducing or coercing a child or

indulging a child in sexually explicit acts and recording them. Such
inducing acts can be done by tempting a minor through monetary or
some other means. Child pornography is banned in all nations and
pornographic websites are strictly directed for removal of any kind of
such content which involves a child in it.

Among crime against children, kidnapping and abduction continued

to be the most prevalent in nature. Around 42 % of the total 1,29,032
cases of crime were being reported. Apart from that, the other major
crime against children include violation of the protection of children
from sexual offences (POCSO) Act, rape, sexual assault and procuring
of minor girls.[4]

The effects of child sexual abuse include depression, anxiety, post-

traumatic stress disorder, as well as some physical injuries. Though
physical injuries can be healed with the passage of time but it takes
time to heal with the mental injuries.

Generally, in most of the cases the offender is acquainted with victim.

And around 30% of the abuse on children is being done by the family
members itself (relatives).

Though, various laws have been made at international level as well.

 United States, Convention on the Rights of the Child (CRC), is an
international treaty that legally obliges the states to protect the
children's rights. CRC's Article 34 and 35 states about the
protection of children from sexual abuse and sexual
exploitation. As of November 2008, there are 193 countries that
are being bounded by the CRC.
 Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual abuse, Council of Europe
has adopted this convention in order to prohibit child sexual
abuse that occurs within the family or at the home.[5]

In the eyes of law, any sexual activity is done with the child then it
constitutes a criminal offence i.e. if any of such activity is done on a
child below the age of 18 years then it is considered as a crime
against children. As they are too young and immature to make such
kind of decisions.

Possibly, there are many reasons for crimes against children. Few of
them are mentioned below:
 Poverty:
Poverty is the main reason which forces many people to choose
the path of crime and somehow, children are the preys to these
crimes. Sometimes, due to the problem of poverty parents
often sell their own children just for the sake of money, in the
hands of criminal minded people and then they have to face
the various crimes.

 Lack of awareness and carelessness by parents:

In rural parts of the country there are many poverty-stricken
families with number of children's, which ultimately results into
inadequate care to each and every child and eventually they
become the victims of various crimes.

 Society:
Well, society is equally responsible for the increase in crime
rate against children. People who indulge children in such
heinous offences, and people who overlook the crimes taking
place etc. are all equally responsible for the current scenario.
And another area of concern is the dramatic increase in the
rape incidents, which is also a serious issue.

 Internet:
Internet has played a major role in increasing the crime rate
 against children, as a lot of inappropriate stuff is being provided
over there which somehow affects the mentality of an
individual. So, more care and stricter measures must be taken
so that these types stuffs do not reach the non-desirable
audiences.

 Television:
Television has somehow changed the mind set of people. As the
crime shows which are being aired on television. They have
their pros and cons. Where somehow, it focuses on how to be
safe and what all is going in the society, whereas on the other
hand, it provides people with criminal mind the new ideas as
how to prey kids.

Apart from this there are various other offences that are mentioned
under IPC and Special and Local laws (SLL) and they are as follows:
 Abetment of suicide of child (sec 305)
 Infanticide (sec 315)
 Exposure and abandonment of child under12 years, by parent
or person having care of it (sec 317 IPC),
 Procuration of minor girls (sec 366A)
 Importation of girls from foreign country, below the age of 18
years (sec 366-B)
 Selling of minors for prostitution (sec 372)
 Buying of minors for prostitution (sec 373) [6]

Laws under Special Local Laws (SLL) are as follows:

 Transplantation of Human Organs Act1994(for persons below
18 years of age)
  Child labour (Prohibition & Regulation) Act,1986
 Immoral Traffic (Prevention) Act, 1956
 Juvenile Justice (Care & Protection of Children) Act, 2000
 Protection of Children from Sexual Offences Act, 2012 (POCSO)
 Prohibition of child marriage Act, 2006[7]

There are certain constitutional provisions which deal with the

rights of children, they are as follows:

Article 21- it provides for right to life and personal liberty

Article 24- it states that child below the age of 14 years shall not be
employed to work in factory or a mine nor shall be engaged in any
kind of hazardous work'

Article 39(f)- it makes obligatory for the state to direct its policy
towards securing that children are given opportunities and facilities
to develop in a healthy environment and in conditions of freedom
and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment

Article 45- states that, free and compulsory education to all children
upto the age of 14 years.[8]

Though various laws are being made by the legislation and various
rights are being provided to the children but still the crime against
them is increasing. It has been seen that the main reason of these
offences against children could be poverty and illiteracy. As they have
played an important role for the exploitation of children, in order to
earn their meal for the day. It ultimately results into their sexual
exploitation. Though certain laws have been implemented for the
protection of the children but still improvement is still required, as in
the year 2016-2017 there was an increase in the crime rate of upto
20%.

Due to such offences not only a child's physical health gets affected
but they are being mentally affected too. And due to this, there is an
impact of offences against children on society.

Children are so innocent in nature, that their innocence can be easily

misused by others, which leaves an unforgettable impression on their
lives as well as on their family members. When such kind of offences
is being committed against children, there is a threat in the minds of
people living in the society and it also leaves an impact on the
parent's psychology. Because, in a country like India where a
normative structure like socialization plays quite significant role in
one's life.

Here, people have to suffer a lot because of the crime which not only
destroy their social conditions merely by labeling perspective.
Though, govt. has implemented various laws and policies in order to
protect children by assuring them some rights and that are being
mentioned above.

Protection of children from sexual offences Act, 2012

Earlier there was no separate legislation for the protection of rights
of children but with the increasing rate of grave sexual offences
against them and low rate of conviction, there was a need for the
separate legislation.
So, the Protection of Children from Sexual Offence Act,2012 (POCSO)
was enacted to protect the children from various types of sexual
offences and to establish Special Court for providing speedy disposal
of cases.

Offences against children (Prevention) Bill, 2005 was an attempt to

address the issue of child abuse. It mainly focuses on the rights and
remedies available to them. It also includes instances of sexual abuse
which includes touching a child directly or indirectly with sexual
intent. It also includes the provisions of enhanced punishment for
abuse of trust and for those individuals who were previously
convicted for child sexual abuse.

The Juvenile Justice (Care and Protection of Children) Act, 2015

This act was enacted to consolidate and amend the law regarding
juvenile in conflict with law and children in need of care and
protection by providing proper care, protection and treatment and by
providing them child friendly environment in the adjudication and
disposition of matters which is in the best interest and which
ultimately helps them in their rehabilitation which are being
established by law.
Crimes Against Women
Over the last few decades, India has witnessed phenomenal growth.
In spite of all development and growth, women are still victims of
horrendous crimes. According to a report of the UN published in
1980- �Women constitute half of the world's population, perform
nearly two-thirds of work hours, receive one tenth of world's income
and fewer than one hundred percent of world's property.' The status
of girls in India, both historically and socially has been one of the
respect and reverence.
Constitution of India, 1950 played the important role in reducing the
discrimination. There are so many provisions in constitution of India
which are against the discrimination between genders and so many
DPSPs are also present which help in women empowerment.
Preamble on constitution doesn't discriminate men and women but
treats them alike.

Crimes against women are of various types as crimes involving sex for
economic gains including prostitution, wrongful confinement,
trafficking, dowry extortion, rape, assault, harassment at work place,
gang-rape, acid-attack, kidnapping, and other immoral acts are
injurious to the society.

In some villages of India, women are still treated as prisoners.

Poverty and illiteracy are the important factors causing crimes against
women. Violence against women is perhaps as old as mankind. In
India, not only in rural areas but also in urban areas, women are
facing lot of problems. Crimes against women are happening because
of inefficient legal justice system, weak rules of law and weak political
structure.

Problem of crimes against women in India

Under the IPC (INDIAN PENAL CODE) crimes against women include
rape, kidnapping and abduction, homicide for dowry, torture,
molestation, harassment, and also the importation of girls.

Rape:
Although the proper definition of �rape' is itself a matter of some
dispute. Section 375 of INDIAN PENAL CODE relates to the offence of
rape. A man is alleged to commit rape when he penetrates his penis
to any extent into the vagina of a woman. How far it's gone inside
vagina is immaterial. Even slightest penetration of penis by a person
into the vagina of a women amounts to rape. This is often so because
clause (a) of section 375 says that penetration by a person of his
penis into the vagina, mouth, urethra, or anus of a woman is rape.[1]

To constitute the offence sexual intercourse by a man with a woman

is necessary. A boy above 12 years of age is capable of committing
rape under this section, whereas boy below 12 but above 7 years of
age enjoys a qualified immunity. To constitute the offence, there
should be penetration against her will. If a girl does not resist
intercourse in consequence of misapprehension, this does not
amount to a consent on her part. If a consent is obtained by putting a
women in fear of death or hurt, that consent would be illegal. Sexual
intercourse with a woman with or without her consent when she is
under 18 years amount to rape.

Exception: Sexual intercourse by a man with his wife under 15 years

of age is rape whether; it has been done with or without her consent.
Such a check was necessary to restrain men from taking advantage of
heir martial rights prematurely. No man can be guilty of rape on his
own wife when she is over 15 years on account of the matrimonial
consent she has given.[2]

According to a report, more than 32,500 rape cases were registered

with the police in 2017. Around 50% of the victims were of aged
between 18-30 years and 30% of victims were children. Indian courts
disposed of only about 18,300 cases related to rape that year, and
127,800 cases were still pending at the end of 2017. In 2017,
conviction rate were only 26%.[3]

Important case that shook India:

In November 2019, a doctor was gang raped near Hyderabad. Her
body was found the day after her murder. The victim parked her
scooter near the toll plaza, and took the taxi to her office. After she
returned back to her scooter, tyres of her scooter were punctured.
Two lorry drivers & their companion saw her. They pretend to help
her and push her in the bushes where they raped her. They took her
body in the lorry and dropped it on the roadside, 27 km from location
where they burnt her body under the bridge. Protests were started
all over the country demanding death punishments for accused.
People were demanding amendments in the punishments of rape.

Chief Minister ordered to try the case in fast track court. Police
gathered the evidence from CCTV cameras and mobile phones and
arrested 4 men. Confessions were recorded and they were taken into
judicial custody for 14 days. The accused were taken to the location
of crime for the reconstruction of the crime scene. According to the
Hyderabad police, two of them tried to snatch the guns from
policemen, they were asked to surrender but they didn't listen and in
retaliation, accused were killed. This was happened under the bridge
on Bangalore Hyderabad national highway.

Some were against the policemen and according to them, it was a

pre-planned encounter and some were celebrating the encounter.
The first post-mortem of the accused was conducted in the
government hospital on the same day of encounter. Re-post mortem
was ordered by the high court and it was done by the forensic
experts of the AIIMS, Delhi. �Disha' used a victim's fictional name.
#justicefordisha was also used by the protestors.[4]

Kidnapping & Abduction-Kidnapping of women is India's fastest

growing crime. Marriage is the biggest reason of kidnapping in India.
10 women kidnapped each day in Delhi in 2018 and in many cases,
culprits are known to the woman. Kidnapping and abduction is a
violent crime. Indian Penal Code explains the offence of kidnapping &
abduction, procuration and importation of girls. The exacting
importance of grabbing is youngster taking.

Kidnapping is of two kinds:

1. kidnapping from India, and
2. kidnapping from lawful guardianship.
For an offence under this section the victim could even be a male or a
female, whether major or a minor. Taking away any person beyond
the bounds of India or taking away any person from lawful
guardianship without the consent is named kidnapping. If a private
has attained the age of majority and has given his consent to his
being conveyed, no offence is committed. The age of consent for the
aim of offence of kidnapping is 16 years for boys & 18 years for girls.

The provisions of those sections under this head are intended more
for the protection of the minors and thus the persons of unsound
mind themselves than for the right of guardians of such person. In
abduction, an individual is compelled either by use of force or is
induced by practicing deceit to move from one place to another.
Actual use of force is necessary. [5]
Kidnapping, abducting or inducing women must be with the intent
that she could also be compelled, or knowing it to be likely that she is
going to be compelled to marry any someone against her will; or so
as that she may be forced or seduced to illicit intercourse or knowing
it to be likely that she is going to be forced or seduced to illicit
intercourse. It's immaterial whether the woman kidnapped is
married or not.

Procuration of minor girl- Procuration of minor girl has become an

emergency that should be taken into consideration. The crime rate
has increased gradually in India. This is a violent crime and to
constitute the offence, inducing a girl under 18 years of age to travel
from any place or to try & do an act and with intention or knowledge
that such girl will be forced or seduced to illicit intercourse with a
person. Seduced means inciting or tempting no matter whether the
girl has been previously compelled or has submitted to illicit
intercourse.

Importations of girl from foreign country- Minor girls are chief target.
This section makes it an offence to import into India from any
country outside India girls below the age of 21 years for the aim of
prostitution.

According to the newest data released by National Crime Records

Bureau, a whole of 95,893 cases of kidnapping and abduction were
registered in 2017, a rise of 9% from the previous years. Out of them
75% were female victims & out of female victims 90% were
recovered alive and rest were dead. The speed of kidnapping and
abduction was the highest in Delhi with 27.6 cases per one lakh of
population followed by Assam with 23.9 cases and haryana with 15.7
cases. The maximum amount as 43.9% girl (those below the age of
18) were kidnapped and abducted for various reasons.[6]

Cruelty By Husband Or Relatives Of Husband And Domestic Violence:

Cruelty refers to sexually, physically or mentally abuse of a person.
Dowry is also a one of the main reasons in India. This is defined in
section 498-A of INDIAN PENAL CODE. This section was enacted to
meet the cases of dowry deaths.

It was introduced in the year 1983. Its objective is to protect a

woman who is being harassed by her husband or relatives of
husband. The act of harassment would amount to cruelty for the
purpose of this section. Relatives include father, mother, husband,
son, daughter, brother, sister, nephew, niece, grandson or grand-
daughter of an individual or the spouse of any person. The meaning
of word relative would depend upon the nature of the statute. It
principally includes a person related by blood, marriage or adoption.

Every third women in India suffers sexual, physical violence at home.

According to the survey, 27% of women experienced physical
violence since the age of 15 in India. This experience of physical
violence among woman is more common in rural areas than among
women in urban areas.

Most of the occasion's culprits of this viciousness have been the

spouses. 31 percent of married ladies have encountered physical,
sexual, or passionate savagery by their life partners. The most well-
known sort of spousal brutality is physical violence (27%), trailed by
emotional violence (13%). The study detailed that among married
ladies who have encountered physical brutality since the age of 15,
83 percent revealed their current spouses as culprits of the savagery.
Be that as it may, for ladies who are not hitched, the experience of
physical viciousness comes from the most widely recognized culprits,
which incorporate moms or step-moms (56%), fathers or step-fathers
(33%), sisters or siblings (27%), and educators (15%). [7]

In any case, the most stressing piece of the spousal-brutality is that

pretty much every third married ladies, who has encountered spousal
viciousness, announced encountering physical wounds, including
eight percent who have had eye wounds, injuries, disengagements,
or consumes and six percent who have had profound injuries, broken
bones, broken teeth, or some other genuine injury. However, just 14
percent of ladies who encountered this savagery looked for help to
stop it. In any case, the defenselessness of halting the brutality being
caused on them isn't the main stressing factor. Ladies in India,
shockingly, are steady of abusive behavior at home.

Information from the overview shows, ladies in India between the

ages of 40 to 49 were generally strong of aggressive behavior at
home, with 54.8% in understanding. The rate advocating misuse is
hardly lesser among more youthful ladies. 47.7% of young ladies
between the age of 15 and 19 concurred with savagery by spouses.
This peripheral contrast in perspectives of ladies towards abusive
behavior at home is likewise obvious in urban and provincial zones.
While 54.4% of rustic ladies studied the nation over concurred with
residential maltreatment, just 46.8% of urban ladies upheld such
savagery.

Sexual rights are a genuine worry for Indian ladies. Approving this
worry, six percent of ladies in India and answered to having
encountered sexual savagery in the course of their life. Among
wedded ladies who were survivors of sexual savagery, over 83%
announced their current spouse and 9% report a previous husband
as the culprits. The type of sexual viciousness most normally revealed
by ladies was that their significant other utilized physical power to
have sex when they would not like to (5.4%). About 4% announced
that their better half constrained them with dangers or in different
manners to perform sexual acts they would not like to and 3%
revealed that their significant other constrained them to perform
other sexual acts they would not like to.
Married couples being out of the domain of assault laws empowers
men to 'go after' ladies in the security of her home. These
measurements give an away from of the sort of inappropriate
behavior and viciousness little youngsters and ladies face in India.
The situation for unmarried ladies is the same.

The review report featured that most basic culprits of sexual brutality
on unmarried ladies were different family members (27%); trailed by
a present or previous boyfriend (18%), their own companion or
colleague (17%) and a family companion (11%). "Sexual viciousness is
regularly dedicated by people with whom ladies have a personal
connection. Physical savagery and sexual brutality may not happen in
disconnection; rather, ladies may encounter a mix of various sorts of
viciousness," the overview report said.[8]

Sexual Harassment of Women at Work Place

Inappropriate behavior is the declaration of undesirable human
relationship and it isn't simply the infringement of respect,
impeccable to government directed assets and reasonable to calm
proximity ensured by law. Inappropriate behavior is genuinely hurting
and makes a sad, deficient air at the workplace.[9] It is a dangerous
issue found in the working environment in India which has changed
into the essential factor for diminishing the thought of working life.
The female work hypothesis has decreased stood apart from men
since two decades from 1981 to 2001. The 2013 Act is the
codification of Supreme Court Vishakha Guidelines, which sees that
each lady has the advantage to live with decency and it is the
essential thing right of each singular working ladies. The Indian
Supreme Court, Vishakha overseeing (1997) not essentially vigorously
grounded the contention that every occasion of inappropriate
behavior of ladies at work environment was a human rights
infringement, other than it developed the framework and
masterminded approval on bad behavior at work space (Prevention,
Prohibition and Redressal) Act, 2013 in India. Sexual provocation at
work environment is neither new nor wonderful, yet it isn't spoken to
or spoken adequately about.

At the key level, it is a demonstration of male amazing quality and

the inalienable powerlessness to manage ladies at standard with
men. Most working ladies face inappropriate behavior at working
environment in some shape or the other. It effects and impact
trimming down paces of ladies in more noteworthy affiliations
wherein legitimate positions the degree of ladies dwindled further.
The pace of inappropriate behavior is developing all around.

Under the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 the law gives an ordinary fix that
if the criminal nature, the fighting is to be recorded with the police
handle part 354A of IPC, control for multi year which may reach out
to five years with the fine. There are couples of preventive estimates
taken at the work environment by this show; the lewd behavior issue
must be determinedly talked about at laborer's social affairs,
business delegate get-togethers. Ladies can be viewed as change
executives in individuals as a rule eye; given their fluctuated parts
and the degree of impact they can yield[10].

Vishakha & others v/s State of Rajasthan- It is one of the landmark

judgment in the history of sexual harassment of women at work
place. Bhanvari Devi was a social activist. She was under a
development programme in order to stop child marriage, an initiative
taken by the Rajasthan government. As a part of her duty, she tried
to stop child marriage of daughter of thakurs. Child was under 1 year.
She was infant only.

Her efforts were useless as thakurs ordered everyone to socially

boycott her. She was gang raped by Thakur & his 5 friends in front of
her husband. She was continually taunted by women constable in
police station that night. She was ordered to leave her lehenga at
police station as proof of evidence. She was only left with the dhoti
of her husband to wrap her body. The trial court discharged the
accused.

The high court states that it was a case of gang rape conducted out of
revengeful situation. But Supreme Court observed that (after filing
writ petition by vishakha, the victim of case) this is against the article
14, 19, 21, of constitution of India which ensures right to dignified life
& basic requirement of safe working environment at work place. In
this case, Supreme Court made the term sexual harassment well
defined. Supreme Court passed the guidelines for the employers and
employees to ensure safe working environment at work place. This
was done to ensure full dignity to the women at work place. Victim
can also use the option to seek the transfer of culprit or her
transfer.[11]
Victims Suffer Silently For A Long Time
In India, women suffer silently for a long time. According to BBC
report, in every 5 minutes, one woman suffers from violence. Lack of
financial support, lack of family support, compromise for the sake of
children are the main reasons which stop the woman from raising
voice against violence. They usually have less access to employment,
property, medical care etc.

Poor Literacy level in India is really a major concern. Literacy level is

64.6% for women whereas it 80.9% for man, according to 2001
census. Most of the women are dependent on the man for financial
purpose. Before raising voice, they thought thousand times about the
family children and society.

More than 95% of cases of crimes against women go unreported. In

states such as Bihar, Uttar Pradesh Jharkhand, only 0.5 cases of
violence against women were reported. In some states like Delhi,
Maharashtra, Himachal Pradesh shows higher reporting rate.

They called women a Devi and irony is that, they beat women, they
torture women and they sexually assault them.

Laws to protect women against crimes

1. The Indian Penal Code, 1860
2. The Sexual Harassment Of Women At Work Place (Prohibition,
Prevention, and Redressal) Act 2013
3. Protection Of Women From Domestic Violence Act, 2005
4. The Dowry Prohibition Act, 1961
5. The Indecent Representation Of Women (Prohibition) Act, 1986
6. The Immoral Traffic Prevention Act, 1956
 7. The Commission Of Sati Prevention Act, 1961
The Constitution of India also ensures gender equality under article
14. Even after introducing such a big amount of laws, crime rate
against women continues to be increasing.

Suggestion To Improve The Implementation And Women Related

Law
 Fast Track Courts- Every case related to women should be tried
in fast track courts. Cases related to violence against women
should be on top of priority list. More and more fast track
courts should establish.
 Strict Punishments- Fear of punishment prevents the law
breaker from violating the law. Punishments should be strict for
every culprit. Most offences should be categorized under non-
bailable offence.
 Increase Reporting of Cases & Spread Awareness among
Women- Women should be aware about their rights. Initiative
should be taken by state governments to educate women about
the laws. Need of women empowerment is also required.
 Proper Planning- Law enforcement agencies should make
proper plans which help in reducing the violence against
women. They should make plans for empowerment of women.
 Police Department- Police department plays the important role
in implementation of laws. They should be more cooperative
with victims. Police should encourage women to report crimes.
Special types of crimes in India: Honour Killing, Female
Foeticide, Witch Hunting
There are various Special types of crimes in India.
Honour Killing
India is a country that is very sensitive about its “honor”. Now,
you might ask, what exactly is an honor for them? Well, given
the large biases and cultures in India, honor might also mean
choosing not to be a part of some community because it is
considered “impure”, “untouchable”, or just “different”.
Let us discuss an example to understand it better.
“The recent honor killing incident shows the problematic nature
of caste. M. Sudhakar from the Morappan Thangal village
returned to his village from Chennai during the lockdown. After
returning to his village, he attempted to meet his wife, which
angered the women’s parents and relatives leading to threats
of killing him.” The question is, why would a husband be
prevented from meeting his own wife? reason was that he
belonged to the most backward class of SC, thus, making it
“against the honor of the wife’s family.”
Female Foeticide
Simply put in a definition, Female Foeticide is killing/aborting
the female fetus even when it is illegal according to the law.
However, it is more than just a definition, this is a deep-rooted
hatred towards the girl child, the age-old notion that has crept
into the minds without any logical conclusion.
The surprising element here is that even the elderly women are
against the birth of a girl child knowing very well they were
exactly in that position many years ago. It not only violates the
“Right of Life” but also makes us question the kind of mindset
with which people are living in.
What could be the conclusion is that “Despite the existence of
various protection law against female foeticide like Prenatal
Diagnostic Techniques Act, there is a dire need to strengthen
this law since the number of convictions is despairingly low as
compared to the burden posed by this crime.”
Witch-Hunting
Witch Hunting is targeting women by accusing them of “indirect
murder through black magic”. It is generally done in backward
areas by men to intimidate these women into giving their
properties or shunning them out of society. In many parts of
Gujarat, they are called “Daakan” and are even stoned to death
without any evidence. Recently, Madhuban, in a village of
Gujarat was beaten with a rod by the men in front of everyone
because they were “suspicious” that she might be involved in
black magic, hence being labeled a witch.
There are certain laws such as the Prevention of Witch (Dayan)
Practices Act, 1999, Witch Hunting (Prohibition, Prevention, and
Protection) Bill, 2015, however, these practices are hard to end
given the deep-rooted superstitions.
White-Collar Crime in India
Understanding White-Collar Crimes
A crime committed by a person of high social standing while
working was first referred to as “white-collar crime” by
sociologist Edwin Sutherland in 1949. White-collar workers held
non-laboring office positions, while blue-collar workers typically
wore blue shirts and worked in factories, plants, and mills.
Well-known individuals who have been convicted of white-
collar crimes have participated in insider trading, accounting
fraud, securities fraud, and Ponzi schemes.
Among the many new white collar crimes made possible by the
internet are so-called Nigerian scams, in which phoney emails
request assistance in forwarding a sizeable sum of money to a
criminal ring. Insurance fraud and identity theft are two other
common white-collar crimes.
Types of White-Collar Crime
The term “white-collar crime” refers to a broad range of crimes,
including the following:
1. Fraud
Fraud is a blanket phrase that covers a wide range of
techniques used to defraud people of their money. The offer to
transfer someone a large number of money (like ₹10,000 lakhs)
in exchange for a small sum of money (like ₹3,000), which the
con artist may pass off as a processing or finder’s fee, is one of
the most common and basic scams. Naturally, the con artist
gets the money transferred to him, but he never gives out the
money he promised.
2. Insider trading
Insider trading is the practice of trading while having access to
important, confidential information that gives the trader an
advantage in the financial markets. An employee of an
investment bank, for instance, might be aware that Company A
is preparing to acquire Company B. The employee can put
money into Company B with the anticipation that once the
purchase is made public, the company’s stock price will jump
sharply.
3. Ponzi scheme
After Charles Ponzi, the first perpetrator of such a scam, a Ponzi
advert is a financial fraud that makes unusually high returns to
investors. It pays such rewards to the initial investors using the
newly deposited funds of new investors.
When the con artist is unable to bring in enough new clients to
pay off the old ones, the scheme falls apart like a house of
cards, leaving many investors with large losses.
4. Identity theft and other cybercrimes
India’s worrying 63.5% surge in cybercrime cases in 2019
indicates that the nation has become a prime target for these
crooks. 60.4% of all reported cybercrime cases involved fraud.
Due to the pandemic, the majority of Indian businesses saw a
surge in cyberthreats or alerts of more than 25% during the
transition to working from home.
5. Embezzlement
Embezzlement, sometimes known as larceny, is a type of theft
that can take many different forms, from an employee taking a
few dollars from the cash register to a complex strategy to
move millions from the company’s accounts to the embezzler’s
accounts.
6. Counterfeiting
The issue of product counterfeiting is well-known and has
existed for a very long time. Ancient times saw the use of
trademarks, and when there are trademarks, counterfeiting
quickly follows. In recent times, the issue has received
increased attention. Finding out the extent of the market for
counterfeit goods would seem to be the reasonable first step.
However, determining the size of this illegal commerce is a
challenging undertaking. First, since counterfeit trade is by
definition unlawful, no direct measurement of it can be done. It
is impossible to draw any inferences from these numbers
because customs seizures make up such a small portion of total
trade.
7. Money laundering
Criminals require a service like money laundering when working
with significant sums of cash. It comprises moving the funds
through several accounts before finally depositing them into
genuine businesses, where they are combined with the
legitimate revenues and lose their initial capacity to be linked to
illicit activities.
8. Espionage
It is possible to say that the espionage system in ancient India
was a vast network that permeated practically all administrative
divisions. Through this network, the monarchs attempted to
gather information, and by acting on that knowledge, efficient
and successful rule was maintained.
The government used double agents, counterspies, and spies.
In the past, they were actively gathering intelligence around the
empire. Then this intelligence was translated. To prevent them
from knowing one another, the interpreters and intelligence
gatherers were kept apart.
Juvenile Delinquency in India
Juvenile Justice Act, 2015 aims to replace the existing Indian
Juvenile Delinquency Law, Juvenile Justice Act, 2000, so that
juveniles in conflict with the law, involved in Heinous Offences,
can be tried as adults. Juvenile here refers to those adolescents
who have not yet achieved the age of majority or fall within the
age group of 16-18 years.

Juvenile Crime is not naturally born in the child but it is largely

present in him because of the surroundings that he is brought
up in, his own absurd actions or simply lack of discipline and
proper education.
As Fredrick Douglass says:
It is easier to build strong children than to repair broken men.
The youth is regarded to be one of the greatest assets of a
country. If this population is not well groomed the future of a
country would certainly not be very bright. We as a whole have
a moral as well as an ethical responsibility to provide all
children with a healthy environment to study and grow in.

The most common reasons for a child to go against the law is

either lack of education or faults in their upbringing that is due
to unhealthy socio-cultural environment resulting in the child to
become physically and mentally unfit as well as an irresponsible
citizen. Fair and equivalent chances must be given to all
youngsters to diminish imbalance and guarantee social equity
in the country.

Children are expected to be obedient, respectful and have good

virtues. However, due to certain circumstances, some children
are unable to follow the set social and legal dictum. These
children often get involved in criminal behavior which is known
a Juvenile Delinquency or Juvenile Crime.

Who is a Juvenile?
According to Section 2(k) of the Juvenile Justice (Care and
Protection of Children) Act, 2000 defines “Juvenile” or “Child”
as a person who has not completed 18th year of age. A juvenile
is a young person who has not met a specific age as prescribed
by the law of a country and doesn’t abide resemblance as a
matured person who can be made legally liable for his criminal
activities.

What is Juvenile Delinquency?

Juvenile Delinquency refers to participation of minors in illegal
crimes. When a person deviates from the normal course of his
social life his behavior is termed as ‘delinquent’. In other words
when a juvenile’s actions prove to be dangerous towards the
society and for him, he may be called a juvenile delinquent. The
act of delinquency may include running away from home, use
of inappropriate or vulgar languages, committing sexual
offences etc.

Historical Background of Juvenile Justice System India

Prior to the Juvenile Justice Act 1986, enacted by the
Parliament to provide care, protection, treatment, development
and rehabilitation to neglected or delinquent juveniles, the
Juvenile Justice Act, 1960 was operative throughout the
country. in India and hence, Juvenile Justice Act, 2000 was
enacted. Later the Juvenile Justice (Care and Protection of
Children) Act, 2000 came into force w.e.f. 30th December 2000
as the primary legal framework for juvenile justice in India.

This act was further amended in 2006 and 2010. In the wake of
Delhi gang rape (16th December 2012) this law suffered a
nationwide criticism owing to its helplessness against crimes
where juveniles get involved in heinous crimes like rape and
murder but cannot be tried. The Juvenile Justice Bill, 2014 was
then passed by the Parliament in December, 2015and it became
the Juvenile Justice Act, 2015. It came into force from 15th
January 2016. Under the Act of 1986, Section 2(a) defined the
term juvenile is a "boy who has not attained the age of 16 years
and girl who has not attained the age of 18 years". Meanwhile,
India signed and ratified the UN Convention on the Rights of the
Child (UNCRC), 1989, which treated a person as a juvenile who
is below 18 years of age.

Causes of Juvenile Delinquency

Individual factors
There are several factors in an individual that may lead to his
delinquent behavior. A minor who has lower intelligence and
has not received proper education is more likely to be involved
in delinquent behavior. Other factors may include impulsive
behaviour, uncontrolled aggression, inability to delay
gratification. Mental Health factors are also a part of individual
factors. The mental state of an individual is extremely important
for his behavior in the society. Thus, these factors can
contribute to the involvement of a juvenile in harmful,
destructive and illegal activities

Family Factors
Family factors may be inclusive of ongoing family feuds, neglect
and abuse or absence of proper parental supervision. Children
whose Parents demonstrate lack of respect of law and social
norms of the country may imbibe the same. Moreover, children
that display the weakest attachments with their families appear
to be the same juveniles who engage in inappropriate activities.

Substance abuse factors

Substance abuse is found in a majority of juvenile delinquent
cases. Juveniles today are using more powerful drugs than
adolescents 10 years ago. Moreover, these children start
 consuming drugs at a younger age. The use of these illegal or
legal substances leads to these adolescents to engage in
committing crimes. Additionally, when a child is under the
influence of drugs or alcohol, he is most likely to engage in
destructive, harmful ad illegal activities.

Prevention of Juvenile Delinquency

Prevention is necessary for such children. Firstly, identification
of such juveniles and then providing them with the required
treatment is of utmost importance. These adolescents become
habitual offenders if not timely stopped from committing
offences. Moreover, the most effective way to prevent juvenile
delinquency has indubitably been to assist children and their
families from the very beginning. The State programs attempt
at early intervention, allowing numerous groups to tackle this
problem in a number of ways. There are many Jurists and
criminologists who suggest various provisions for the
prevention of juvenile delinquency. Some of the provisions that
are very useful for the welfare, development and growth of the
juveniles have been mentioned below.
 Individual Programs- It involves the prevention of delinquency
through counselling, psychotherapy and proper education.
 Environmental Programs- involves the employment of
techniques with a view to change the socio-economic context
likely to promote delinquency.

Delinquency Prevention is the broad term for all efforts aimed

at preventing youth from getting involved in criminal, or other
antisocial activities. Various governments are recognizing the
importance of allocating resources for the prevention of
 delinquency. Prevention services include activities such as
substance abuse education, treatment, family counselling,
youth mentoring, parenting education, educational support and
youth sheltering.
Compensation of victim of crime in India
Who is a victim of crime
 Any person, group, or entity who have suffered harm, injury or
loss due to illegal activities of others. The harm may be
economical, mental, or physical.
 Thus any person who has suffered harm because of violation of
criminal law is a victim.
 A person will be considered as a victim even when the offender
is not identified or prosecuted. Term victim also includes
individuals who have suffered harm as a result of assisting
victims in distress or to prevent victimization.
 Not only the person who suffered loss or injury are the victim,
but in some cases, the near and dear of victims (family
members) are also the victims.
Can a victim of crime get compensation in India
Yes. A victim of the offence can get compensation in India. But
there is a procedure which needs to be followed. We will
discuss the procedure at length in the later part of this article.
How can the compensation be sought
The compensation has to be ordered by the court.
Compensation can be sought through the procedure
established by the court. Compensation is awarded for material
as well as non-material damages.
Material damages include medical expenses, loss of
livelihood, etc. Non-material damages include pain, suffering,
 mental trauma, etc. In criminal cases, the victims can directly
apply for the compensation, and it is the duty of the lawyer
representing the victim to demand such compensation.

Laws governing compensation of victims of crime in India

 The provisions relating to compensation to victims of crime are
contained in sections 357, 357(1), 357 (2), 357 (3), 357A, 358,
359 and 250 of the Code of Criminal Procedure, 1973.
 Constitution of India also provides for certain safeguards to
the victim of crime. Article 14 and 21 of the Constitution
supports the argument.
Victim compensation under The Code of Criminal Procedure,
1973
WHERE CONVICTION AND FINE IS PART OF THE SENTENCE
When an accused is proven guilty, and the court passes an
order which contains a fine of any denomination, the court can
order such fine or any part of it to be paid to the victim of
crime. The fine imposed is utilised to compensate the victim of
fine in the following ways.
 #1 Compensating for the expenses incurred during litigation
(357 1 a)
 This is the essential relief which a victim of a crime must get.
Litigation costs in India are very arbitrary. The lawyer charges
hefty amount. Getting justice at times adds to the burden of the
victim itself. Instead of getting justice, the victim is trapped in
the honeycomb of justice delivery system.
 The court knows this fact and thus, compensate victim by
providing them the expenses incurred during litigation.
#2 Compensation for loss or injury to be recovered by the civil
court
 If the court is of the view that, the compensation sought is
beyond the jurisdiction of the court, the court itself orders the
appropriate court to look into the matter.
 In the payment to any person of compensation for any loss or
injury caused by the offence, when compensation is, in the
opinion of the Court, recoverable by such person in a Civil
Court.
#3 Compensation in case of death
 One might question the fact that, who is the victim where
death has been caused? As the victim is already dead, who
should be compensated for the crime?
 It is the family of the victim. Think of the mental trauma they
might have gone through. Medical expenses incurred, expenses
during last rites. What if the victim who died was the sole bread
earner of the family?
 The Court is well aware of such situation. Therefore, the
legislature and the judiciary tied their hands to do complete
justice.
 Victims are entitled to recover damages from the person
sentenced for the loss resulting to them from such death. When
any person is convicted of any offence for having caused the
lives of another person or of having abetted the commission of
such a crime.
#4 Compensation of victim of crime in offences like theft,
cheating, criminal breach of trust, etc
In cases of crime such as theft, cheating, criminal breach of
trust, criminal misappropriation, the Court either tries for
recovery of goods and in the case where recovery is not
possible court orders for compensation for the price of such
goods.
COMPENSATION WHERE FINE IS NOT A PART OF THE SENTENCE
The accused person in such case may be ordered by the court
to pay a certain sum as compensation to the victim of crime
who suffered loss or injury. Indian legal system is victim friendly.
Victim’s rights are kept at the top of the priority list.
When a Court imposes a sentence, of which fine does not form
a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount
as may be specified in the order to the person who has suffered
any loss or injury by reason of the act for which the accused
person has been so sentenced.
VICTIM COMPENSATION SCHEME
In 2009, the central government gave directions to every state
to prepare a scheme which has to be in agreement with the
center’s scheme for victim compensation. The primary purpose
of the scheme is to provide funds for the purpose of
compensation to the victim or his dependents who have
 suffered loss or injury as a result of the crime and who require
rehabilitation.
Quantum of compensation under the scheme
It is the court which orders that the victim who suffered loss
needs to get compensated. Under the scheme, whenever a
recommendation is made by the Court for compensation, the
District Legal Service Authority or the State Legal Service
Authority, as the case may be, decides the quantum of
compensation to be awarded.
Compensation in cases where the accused is not found guilty
or the culprits are not traced
Where the cases end in acquittal or are discharged, and the
victim has to be rehabilitated, the court may make a
recommendation for compensation.
Where the offender is not traced or identified, but the victim is
identified, and where no trial takes place, the victim or his
dependents may make an application to the State or the District
Legal Services Authority for an award of compensation.
Who is to provide compensation in the above case
 The State or the District Legal Services Authority shall, after due
enquiry-award adequate compensation by completing the
inquiry within two months.
 Also, it is the duty of the State or the district legal service
authority to provide an immediate first-aid facility or medical
benefits to the victim free of cost on the certificate of the
police.
Treatment of victim of crime
All hospitals, public or private, whether run by the Central
Government, the State Government, local bodies or any other
 person, shall immediately, provide the first-aid or medical
treatment, free of cost, to the victims of any offence covered
under the following of the Indian Penal Code,
 376 (Rape)
 376A (intercourse by a man with his wife during separation)
 376 B (intercourse by a public servant with a woman in his
custody), 376 C (Intercourse by superintendent of jail or a
remand home), 376 D (intercourse by any member of the staff
of a hospital with any woman in that hospital) of the Indian
Penal Code.
 376 C (Intercourse by superintendent of jail or a remand home),
 376 D (intercourse by any member of the staff of a hospital with
any woman in that hospital) of the Indian Penal Code
What to do in case of inadequate compensation
If the trial Court, at the conclusion of the hearing, is satisfied,
that the compensation awarded under section 357 is not
adequate for such rehabilitation, or where the cases end in
acquittal or discharge and the victim has to be rehabilitated, it
may make a recommendation for compensation.
When is the compensation to be provided
 Along with the duty of the offender, it is the duty of the state
too, to compensate the victim. Compensation to the victim of
crime can be provided:
 At the conclusion of the trial. That is on the orders of the court.
 When inadequate compensation is granted by the lower court
to the victim of crime, the Appellate Court might increase the
compensation.
 Where accused is not traceable, it becomes the duty of the
state to compensate the victim of the crime.
CENTRAL VICTIM COMPENSATION FUND SCHEME
The Central government in 2015 formulated the CVCF scheme
to compensate the determined. Every state has their own
guidelines which decide the procedure.
An attempt has been made by iPleaders to bring forth the
procedure by examining different scheme of the different
states. This is a standard procedure which one might follow. To
know the exact step by step procedure, please see your state’s
guidelines on Victim compensation fund.
Step 1 Making an application before the District/State Legal
Service Authority
 An application can be made for temporary or final
compensation. It can be filed by the Victims or their
dependents or the SHO of the area.
 The application must be submitted along with a copy of the
First Information Report (FIR), medical report, death certificate,
if available, copy of judgment/ recommendation of court if the
trial is over, to the State or District Legal Services Authority
Step 2 The scrutiny stage.
District Legal Service Authority of every state first verify the
content of the claim. Specific loss, injury, rehabilitation is taken
into consideration.
Step 3 Deciding the quantum of compensation to be given to
victim of crime
The quantum of compensation to be granted is decided on the
following factors,
 The gravity of the offence and the loss suffered by the victim.
 Medical expenditure incurred during treatment.
 Loss of livelihood as a result of injury or trauma.
 Whether the crime was a single isolated event (Example Theft)
or whether it took place over an extended period of time
(Example multiple times, Rape with a woman who has been
locked in a house)
 Whether the victim became pregnant as a result of such
offence.
 In the case of death, the age of deceased, his monthly income,
the number of dependents, life expectancy, future
promotional/growth prospects etc.
 Or any other factor which the Legal Service Authority might
deem fit.
Step 4 Method of disbursement of compensation
 The amount of compensation so awarded shall be disbursed by
the respective Legal Service Authority by depositing the same in
a Nationalized Bank in the joint or single name of the
victim/dependent(s).
 Out of the amount so deposited, 75% (seventy-five percent) of
the same shall be put in a fixed deposit for a minimum period
of three years.
 The remaining 25% (twenty-five percent) shall be available for
utilization and initial expenses by the victim/dependent(s), as
the case may be.
 In the case of a minor, 80% of the amount of compensation so
awarded, shall be deposited in the fixed deposit account and
shall be drawn only on attainment of the age of majority, but
not before three years of the deposit
 UNIT 4
Probation of Offender Act, 1958

“Hate the crime and not the criminal”. You might have heard
this a zillion times. This means that we need to eliminate crime
and for this the elimination of criminals is not required. The
Criminal Law in India is more into reforming offenders rather
than punishing them. It is true that punishment gives a sense of
satisfaction to the society as well as to the victim, but this does
not reform the criminals. Especially in the cases of
imprisonment, once the person is out of prison, he is back to
his old ways of infringement of rights. This is common in the
cases of youth criminals. Their minds are not mature and get
diverted when engaged with several criminals in jail.
Thus, instead of keeping the accused with hardened criminals in
jail, the court may order personal freedom on the basis of good
behaviour. The court can also grant a supervision period for the
accused. The main aim behind the Probation of Offender Act,
1958 is to give an opportunity to offenders to reform
themselves rather than turning into hardened criminals. Section
562 of the Code of Criminal Procedure,1898 (after amendment
it stands as Section 360 of the Code of Criminal Procedure,
1973) provides that any person not below twenty-one years of
age who may have not been convicted for an offence for
imprisonment up to seven years or not convicted to death or
imprisonment of life can be released on the basis of probation
for good conduct.
The Act is based on a reformative approach which has come
over the years from the Doctrine of Deterrence. It has been
observed that the offender’s readjustment in society decreases
after the release. They might also face problems while working
with professional delinquents. This creates an undesired impact
on the convicted and his/her life afterwards. The Probation of
Offender Act, 1958 saves minor offenders from becoming
regular criminals. This is done by providing them with a chance
to reform themselves rather than getting into prison. The
probation officer amicably reaches to the needs and difficulties
of the accused and tries to solve the problem. This is done for
the person convicted of minor crimes.
The Probation Officer is the key human being in the process of
Probation management. He contacts the Probationer directly.
He is responsible for upholding the provisions of the court’s
probation order. He carries out two primary functions which
consist of the Probation offender presentence investigation and
supervision of the offender. The Probation of Offender Act,
1958 aims at providing the release of the accused if he has
been found not guilty of an offence not punishable with death
or life imprisonment after due admonition. It has been enacted
to provide the offenders with an opportunity to prove that they
can improve their behaviour and can live in a society without
harming them.
It is also to be kept in mind that reformation doesn’t always
work. Sometimes the crimes are so heinous and abhorrent and
the criminals are so unrepentant that punishment of such
crimes is important. For some cases, reformation is not useful
and punishment is best to safeguard the society by locking
them for life.
Scope and Background
The Act is a landmark in advancing the new liberal reform
movement in the penology field. It is the result of the
recognition of the doctrine that criminal law is more about
reforming the individual offender than about punishing.
Probation has its influence from the juvenile justice system of
“positivism” which has its development from the ideologies of
the criminal justice system. The origin of probation was traced
in the early practices of the English law and experienced
development in the 19th century. However, the development of
probation began in the early twentieth century, when various
countries like Europe and North American began to initialize
methods to reduce the consequence of severe punishments.
Imprisonment became the most common mode of penal
sanction.
From early 1800 to the present date, probation has tried to
reform, remake, remould the offenders into honest, good and
law-abiding citizens. In India, the main legal articulation to the
reformatory framework for the probation theory is found in
procedural code. Later the Children Act, 1908 additionally
enabled the court to discharge certain guilty parties waiting on
probation because of their good conduct. The extent of
arrangements of probation law was expanded further by the
enactment in 1923 resulting in the Indian Jails Committees
Report (1919-1920). In 1931 the Government of India arranged
a Draft Probation of Wrongdoers Bill and flowed it to the then
Provincial governments for their perspectives.
A Bill on Probation of Offenders was introduced in Lok Sabha on
November 18, 1957. A Joint Committee was formed to consider
the Bill allowing for the release of prisoners on probation or
after proper admonition and related matters. On 25 February
1958, the Joint Committee delivered its report to Lok Sabha. In
Parliament, the Probation of Offenders Act was adopted on the
advice of the Joint Committee. Probation in India is used as an
institutional method of treatment. The western does not allow
the use of institutional methods for probation. They administer
probation by voluntary organisations of sociologists and
psychologists. They consider that the judges should not
interfere with this.
The Indian system says that the judiciary should solely vest in
the probationary laws. This is so because the power of
probation will be vested upon the voluntary and extrajudicial
agencies which lack judicial methods and techniques. This
would create a serious problem as these organisations will have
their own values and considerations. Sociologists and
psychologists will be concerned only upon the reformations of
the offender and not the legal implication of the reformative
measure. Probation is subjected to judicial review under Article
226 of the Indian Constitution which will eventually allow the
judges to bring it under judicial scrutiny.

Aim and Objective of Probation

The main aim and objective of probation is to permanently
reform the lawbreakers. It involves moulding the habits into
constructive ways by rehabilitation and reformation. The
objective is to give a chance to the anti-social person to
willingly cooperate with society. This will also give him social
protection and security. It is a substitution for imprisonment.
Imprisonment will not always serve the purpose of eliminating
crime. The object of Probation Law is more to reform the
offender than to punish him. This is what we generally call
Probation. Simply, it can be understood as the conditional
release of an offender on the promise of good behaviour.
 The aim of this Section was to reform the young offender who
might have committed the crime under the influence of bad
company or ignorance. The object is to remould and save them
from the hardened criminals who might distract them to the
path of crimes. This Section also helps the persons of mature
age who may have committed the crime in influence. They are
expected to be good citizens of the country.

Statutory provisions under the Act

The provision is broadly classified into procedural and
substantive general laws dealing with probation of the
offenders.The first provision to deal with probation was in
Section 562 of the Code of Criminal Procedure,1898. After the
amendment in 1973, the probation was dealt with in Section
360 of the Code of Criminal Procedure. This Section says that if:
1. Any person who is not below twenty-one years and is convicted
of a crime for which the punishment is imprisonment for seven
years or is convicted for an offence punishable with fine.
2. Or any person who is below twenty-one years or if any women
convicted of an offence not punishable with imprisonment of
life or death and no previous conviction is proved against the
offender.
3. And appears before the court, regardless of the circumstances
in which he has committed the offence, the court might release
the offender on the promise of good conduct.
The court might release him on entering the bond for good
conduct and peace instead of punishing the offender with
imprisonment. In this case of Jugal Kishore Prasad v. The State
of Bihar, the Supreme Court stated that the aim of the law is to
deter the juvenile offenders from turning into obdurate
 criminals as a result of their interaction with seasoned mature-
age criminals in case the juvenile offenders are sentenced to
incarceration in jail. It is observed that the Act is in accordance
with the present trend of penology, which says that effect
should be made with accordance to change and remould the
offender and not to retribute justice. Modern criminal
jurisprudence recognises that no one is born criminal. A good
number of crimes are a result of a socio-economic
environment.
The Probation of the Offenders Act, 1958 excludes the
application of Section 360 of the Code of Criminal Procedure,
1973 whenever the Act is applied. Section 3 to Section 12 of the
Probation of the Offender Act, 1958 deals with the procedures
of the court to deal with the release of the offenders. The
important aspects of the provisions are discussed in five ways:
Admonition
Section 3 of the Probation of the Offenders Act,1958 deals with
the power of court to release the offender after admonition. An
Admonition, in literal terms, means a firm warning or
reprimand. Section 3 says how the offender is benefited on the
basis of admonition after satisfying the following conditions:
 When any person is found guilty of committing an offence
under Section 379 or Section 380 or Section 381 or Section
404 or Section 420 of the Indian Penal Code,1860 or any
offence punishable with imprisonment for not more than two
years, or with fine, or with both, under the Indian Penal Code,
or any other law
 An offender should not previously be convicted for the same
offence.
 The Court considers the nature of the offence and the character
of the offender.
 The Court may release the offender on probation of good
conduct applying Section 4 of the Act, instead of sentencing
him.and,
 The Court may release the offender after due admonition,
instead of sentencing him.
Case laws
1. Keshav Sitaram Sali v. The State of Maharashtra, AIR 1983 SC
291 – In this case, the appellant was an employee of the
Railways at the Paldhi Railway Station. He abetted the execution
of a charcoal theft crime committed by Bhikan Murad in the
case before the Special Judicial Magistrate First Class (Railways),
Bhusawal, on the charges of charcoal stealing. The learned
Magistrate acquitted the appellant of that crime, and the State
Government filed an appeal before the Bombay High Court
against the acquittal judgment passed by the learned
Magistrate. He was charged with a fine of Rs. 500 and in default
of payment, rigorous imprisonment for two months. The
subject matter of theft was a quantity of coal valued at Rs. 8.
The Supreme Court held that in case of minor thefts, the High
Court should extend the benefit of Section 3 or Section 4 of the
Probation of Offenders Act,1958 or Section 360 of the Code of
Criminal Procedure,1973 rather than imposing fines.
2. Basikesan v. The State of Orissa, AIR 1967 Ori 4 – In this case, a
20-year-old was found guilty of an offence under Section 380 of
the Indian Penal Code,1860. It was held that the youth had
committed the offence not deliberately and so the case must be
applied for Section 3 of the Probation Act and be released after
admonition.
3. Ahmed v. The State of Rajasthan, AIR 1967 Raj 190 – In this
case, the court said that the benefit of the Probation of the
Offenders Act does not extend to anyone who has indulged in
any activity that resulted in an explosive situation leading to
communal tension.
Probation on good conduct
Section 4 of the Probation of the Offenders Act,1958 talks
about the release of the offender on the basis of good conduct.
It is a very important Section of the Act. The important points
that must be remembered for the application of this Section
are:
 Section 4 of the Act is not applicable if the offender is found
guilty of an offence with death or imprisonment for life.
 The Court has to consider the circumstances of the case
including the nature of the offence and the character of the
offender.
 The court may pass a supervision order to release the offender
on probation of good conduct. The supervisory period is not to
be shorter than one year. The probation officer must supervise
the individual for such a span in such a situation. In the
supervisory order, the name of the probation officer should be
listed.
 The Court can direct the offender to execute a bond, with or
without sureties, to appear and receive sentence when called
upon during such period which should not exceed a period of
three years. The court may release the offender on good
behaviour.
 The Court may put appropriate conditions in the supervision
order and the court making a supervision order explain to the
offender the terms and conditions of the order. Such
 supervision order should forthwith be furnished to the
offender.
 Probation officer’s report is not compulsory to enforce this rule,
but if the information is required on record, the Court shall take
into account the probation officer’s information before granting
a probation order for good behaviour.
Case laws
1. Smt. Devki v. The State of Haryana, AIR 1979 SC 1948 – In this
case, it was observed that Section 4 would not be extended to
the abominable culprit who was found guilty of abducting a
teenage girl and forcing her to sexual submission with a
commercial motive.
2. Dalbir Singh v. The State of Haryana, AIR 2000 SC 1677 – In this
case, the court took the opinion that it is appropriate for the
defendant to be placed on probation for his good conduct,
given that the facts of the situation are needed to be taken into
account. One of the circumstances informing the
aforementioned opinion which cannot be omitted is “the
essence of the offence.” Thus, Section 4 can be redressed
where the court recognizes the circumstances of the situation,
in particular the “character of the crime,” when the court
decides whether it is reasonable and necessary for the
execution of a defined reason that the defendant should be
released on the grounds of good conduct.
3. Phul Singh v. the State of Haryana, AIR 1980 SC 249 – In this
case, the court held that the provision of Section 4 should not
be mistaken and applied easily in undeserving cases where a
person in early twenties commits rape. The court, thus, refused
the application of probation on such heinous nature of crime
and convicted the person.
 Cost and compensation
Section 5 of the Probation of the Offenders Act, 1958 says that
if any person is released under Section 3 or Section 4 of this
Act, even then the court might order:
 The offender to pay compensation to the victim for the loss or
the injury occurred to him. Or
 Cost of the proceeding as the court may think reasonable.
Case laws
1. Rajeshwari Prasad v. Ram Babu Gupta, AIR 1961 Pat 19 – The
amount of compensation is purely on the discretion of the
court to grant if it thinks it is reasonable in the case. Thus,
deciding the amount of compensation, it is solely the court’s
discretion to require payment and costs where it finds.

Offenders under 21 years of age

Section 6 of the Probation of the Offenders Act,1958 talks
about the restriction on the imprisonment of offenders under
twenty-one years of age. This provision says that offenders who
are under 21 years of age are not sent to prison where the
offence is not so serious as to warrant imprisonment for life or
death. Important points to be remembered before the
application of Section 6:
 In cases where the accused is below 21 years of age, the Court
shall call for the report of the Probation Officer. If the court’s
opinion is not desirable with offender either on the ground of
admonition (Section 3) or on the ground of release on
probation of good conduct (Section 4), the Court can pass
sentence of imprisonment on the offender who is under 21 of
years ago but the Court cannot sentence him without recording
 reasons for doing so. The Court has an obligation to see
whether Section 3 or 4 of the Act applies or not. For this
purpose, the Court must call for the report of the Probation
Officer. Therefore, the report of the Probation Officer is
mandatory when the offender is under 21 years of age.
 The court considers the nature of the offence and the character,
physical and mental condition of the offender before making
any decision.
 It is difficult for the court to come to a conclusion whether
Section 3 or Section 4 applies or not unless the Court considers
the report of the Probation Officer, therefore, the report of the
Probation Officer is mandatory under Section 6 of the Act.
 On receiving a report, the Court peruses it and decides whether
the offender can be released on admonition or probation of
good conduct or not.
 After receiving the report, if the court orders that the offender
shall not be released, applying Section 3 or Section 4 of the Act,
the Court can pass sentence to the offender recording the
reasons for doing so.
Case laws
1. Daulat Ram v. The State of Haryana 1972 SC 2434 – In this case,
it was held that the aim of this Section was to protect the
youth. The juvenile offenders would not be sent to jail if their
crime was not as serious as to punish them with life
imprisonment or death. Therefore, the provision should be
liberally construed keeping in view the spirit embodied therein.
2. Ramji Nissar v. The State of Bihar; AIR 1963 SC 1088 – In this
case, the Supreme Court observed that the object of the Act,
1958 is to prevent the turning of youthful offenders into
criminals by their association with hardened criminals of
 mature age within the walls of a prison. The method adopted is
to attempt their possible reformation instead of inflicting on
them the normal punishment for their crimes. The person’s age
problem is important not for the purpose of assessing his or her
guilt, but rather for the purpose of punishing the crime for
which he or she is found guilty. Consequently, if a court
determines that the defendant was not under the age of 21 on
the day the court found him guilty, Section 6 does not apply.
Report of probation officers
Section 7 of the Probation of the Offenders Act,1958 deals with
the clause that the report of the probating officer is kept
confidential. No Probation Officer’s report is necessary to apply
Section 4 of the Probation of Offenders Act but such report is
must under Section 6 of Probation of Offenders Act if the
offender is under 21 years of age. However, if such a report is
available on the record, under Section 4 of the Act, the Court
shall not ignore it and that the Court shall take the report into
consideration.
Salient features of the Act
The most important salient feature of the act is
1. The Probation of Offenders Act of 1958 is aimed at modifying
novice prisoners by rehabilitating them in the society and
avoiding the progression of juvenile offenders into obdurate
criminals under environmental control by locking them in
prison with hardened criminals.
2. This seeks to release first offenders, following proper
admonition or notice with advice who are suspected to have
committed an offence punishable under Section 379, Section
380, Section 381, Section 404 or Section 420 of the Indian Penal
 Code and even in case of any crime punishable with
incarceration for not more than two years, or with fine, or both.
3. The Act demands that the Court can order such compensation
and the costs of the prosecution for reimbursement by the
accused as it finds fair for the damage or injury to the victim.
4. This Act empowers the Court to free those prisoners on
probation in good behaviour if the crime supposedly
perpetrated is not punishable by death or imprisonment for life.
He will, therefore, be kept under control.
5. The Act gives the Judge the right to modify the terms of the bail
after a prisoner is placed on probation with good behaviour and
to prolong the probation period not to exceed three years from
the date of the initial order.
6. The Act offers extra protection for people under the age of
twenty-one to prevent sentencing him to prison. However, a
person found guilty of a crime punishable by life imprisonment
can not have this clause.
7. The Act empowers the Court to grant a warrant of arrest or
summons to him and his guarantees compelling them to appear
before the Court on the date and time stated in the summons if
the defendant placed on bail refuses to comply with the terms
of the bond.
8. Under the terms of this Act, the Act empowers the Judge to try
and sentence the defendant to jail. The High Court or any other
Court may even make such an order when the case is put
before it on appeal or in revision.
9. The Act offers a significant function for probation officers to
support the Court and oversee the probationers under its
supervision and to guide and support them in seeking
appropriate work.
10. The Act applies to India as a whole except for Jammu
State and Kashmir. This Act shall come into force in a State on
such date as the Government of the State may designate, by
notice in the Official Gazette. It also gives state governments
the right to put the Act into force on multiple dates in different
parts of the State.
The offence for which probation cannot be granted under the
Act
There are certain cases in which the Probation of the Offender
Act is not applicable. In normal circumstances the Probation of
the Offender Act is not applicable to:
 Section 409, 467 and 471 of the Indian Penal Code – these
Sections deal with breach of trust by public servants, forgery of
valuable security and will and documents used as a genuine
forgery. In Rev vs By Adv. Sri P.K.Ravisankar and State Of Gujarat
vs V.A. Chauhan, on 3 February 1983, the court did not grant
release of the offenders on the basis of Section 3 and Section 4
of the Probation of the Offenders Act,1958.
 Probation of the Offenders Act,1958 does not grant the release
on the grounds of kidnap or abduction. In the case of Smt.
Devki v. State of Haryana, AIR 1979 SC 1948 it was observed
that Section 4 would not be extended to the abominable culprit
who was found guilty of abducting a teenage girl and forcing
her to sexual submission with a commercial motive.
 The Act refrains from providing release of habitual offenders. In
the case of Kamroonissa v. the State of Maharashtra, AIR 1974
SC 2117, the appellant was charged with the theft of gold. She
was punished by rigorous imprisonment. She was under 21
years of age. The probation officer thus requested the court to
grant her the release under Sections 3 and 4 of the probation of
the offender’s Act. The court refused the claim by addressing
 that the appellant had been engaging in various crimes before
and was arrested in 1971.
 Section 325 of the Indian Penal Code – This Section speaks
about the violence that causes grievous hurt. Thus, the
Probation of the Offender Act does not provide a release on
this basis.
 State of Sikkim v. Dorjee Sherpa And Ors– In some cases, the
Court does not take technical views and should take into
account certain considerations, such as the risk of work losses,
to invoke the provisions of the Probation of Offenders Act even
in serious offences. This was also argued that the Court would
also take into account that convicts belonging to middle-class
families with no criminal record frequently become victims of
situations due to the unwelcome business and other negative
forces available to these young generations.
Pit-falls in Probation System in India
There are certain pitfalls in the probation system:
1. It is difficult in many situations to determine whether the
criminal is a first offender or a recidivist. There is, therefore, a
possibility that an offender who is otherwise recurrent may be
admitted to probation and may not react favourably to this
technique of correction.
2. Section 4 of the Probation of Offenders Act, a main provision of
the Act, does not make it compulsory to supervise a person
released on probation unless the court orders release a person
on probation after entering into a bond with or without
immunity. This is not in line with the probation philosophy
which considers supervision important to the offender’s
interests
3. Section 6 of the Act allows the court to take into account the
report of the probation officer when it is appropriate to take a
decision to grant or deny probation to an offender under the
age of 21, but many times court decisions are made without
any report. Again, this goes against the spirit of morality that is
enshrined in the Probation Act. This is basically because of the
poor judiciary system.
4. The lack of real interest in social service among the probation
personnel presents a major problem in selecting the right
persons for this arduous job.

Critical Analysis of Juvenile Justice Act, 2000

History of Juvenile Justice System in India

India has a long history of Juvenile legislation which is generally
based on British pattern. Two Indians, Krishna Chandra Ghoshal
and Jai Narain Ghoshal in 1787 proposed to Lord Cornwallis
(Governor-General) to establish home for the impoverished of
the Calcutta who happened to be beggar, widows, and orphans.
Apart from this, they also recommended that the impoverished
must undergo compulsory education. On their suggestions,
shelters home to 500 impoverished were built near Calcutta
and an Orphan Committee was set up for the protection of
orphan children. Efforts of these two Indians have changed the
fate of many destitute of Calcutta. Similarly at Bombay, a
nucleus for juvenile reformatories was established in 1843,
which later came to be known as David Sassoon Industrial
School.
Before common law, laws relating to juvenile justice were
governed by the personal laws- Hindu law and Muslim Law.
The idea to provide a separate treatment to juvenile offenders
was passed in 1850. Chronologically, The Apprentice Act of
1850 was the first legislation governing juvenile deviance in
India. It proclaimed that the binding of apprentices was for
empowering children and supremely orphan and poor children
who were nurtured by a public charity, to learn the trade,
crafts, and employments, by which they could be able to gain a
livelihood. It applied to boys and girls between the age group
from 10 to 18 years. Under this very Act, a child could be bound
as an apprentice by his/her father or guardian to learn any
trade or craft for a period not exceeding seven years. This Act
gave an opportunity to many young orphans, destitute and
petty offenders, to earn an honest livelihood. It has a similar
pattern with the Apprentice Act of England that was passed in
1802.
The Indian Jail Committee 1919-1920 recommended one of the
most important developments in the juvenile justice laws of
India. For the first time in history, reformation and
rehabilitation of offenders were recognized as the foremost
objectives of the prison administration. The committee also
recommended having separate Courts and homes for children.
Two agencies were set up at the trial level to deal with
delinquent and neglected children, which was earlier tried by
only one agency.
Children Act, 1960 provided for the care, protection,
maintenance, reformation, and rehabilitation of the neglected
and delinquent children. For the very first time, imprisonment
of any child was prohibited under any circumstances. The Act
also provides for separate adjudicating bodies– children court
and children welfare board, to deal with delinquent children
and neglected children respectively. However, it sowed a seed
of gender discrimination in the definition of a child. This Act
applied to boys who were under the age of 16 years, while girls
under the age of 18 years.
The United Nations Minimum Rules for the Administration of
Juvenile Justice (also known as Beijing Rules, 1985) have been
framed keeping two concepts in mind. Firstly, Diversion, that
means children should not be processed through the criminal
justice system, as it will amplify the criminality of the child.
Secondly, Detention must be the last resort and also for the
shortest period of time. For the first time, the term ‘juvenile’
was used in International Law.
With the enactment of the Juvenile Justice Act, 1986, distinct
machinery was set up to deal with delinquent and neglected
children. The delinquent children were those who come in
conflict with the law after committing an offence, whereas
neglected children were those who found begging, homeless
and destitute, or those living in brothels or with sex workers or
frequently going to such places or those who are likely to be
exploited for an illegal and immoral purpose. In addition,
separate institutions were set up for processing, treatment, and
rehabilitation of the delinquent and neglected children.

Juvenile Justice Act, 2000

The Act changed the terminology for delinquent and neglected
children to ‘child in conflict with law’ and ‘child in need of care
and protection’ respectively.
This Act provides for the establishment of the Juvenile Justice
Board for giving justice to the juvenile in conflict with the law.
Board is authorized to allow the juvenile to go home after
advice and admonition [Section 15(1)(a)], direct the juvenile to
participate in group counselling [Section 15(b)], to perform
community service[Section 15(c)], order the parent or the
juvenile himself if he is over 14 years of age and earns money,
to pay fine[Section 15(d)], direct the juvenile to be released on
probation of good conduct and placed under care[Section
15(e)], make an order, directing juvenile to be sent to a special
home[Section 15(g)], and having regard to the nature of the
offence and circumstances of the case, to reduce the period of
stay in a special home[Section 15(1)].
The Act provides for the establishment of the Child Welfare
Committee for disposing of the matters of the child in conflict
with the law. This Act provides for the care, protection,
treatment, development, and rehabilitation of the children as
well as to provide for their basic needs and protection of
human rights [Section 31(1)]. The Act also authorizes to
establish observational homes for the temporary reception,
care, protection, training, development, and rehabilitation of
the juvenile in conflict with the law during the pendency of the
inquiry and shelter homes for the children who need urgent
support [Section 8, 9, 34 and 37].
The Act bars the infliction of a death sentence, life
imprisonment and prison in default of fine or furnishing
security. The crucial aspect of the Act is the removal of
disqualification attracting a conviction of the offence and
publication of the name, address, etc. of the juvenile in any
newspaper, magazine, etc[Section 19 and 21].
Section 23 of the Act, provides for the punishment for cruelty to
juvenile or child by a person having actual charge or control
over that juvenile. Section 26 provides punishment for
procuring a juvenile or a child for the purpose of hazardous
employment, keeps him in bondage and withholds his earnings
or uses such earnings for his own purpose. All these offences
are cognizable in nature.
The Act also provides for juvenile or the child welfare officer in
every police station with an aptitude and appropriate training
to deal with the juvenile in coordination with police and
creation of a Special Juvenile Police Unit to upgrade the
treatment of police with juvenile or children.
Now the question arises, whether the Juvenile Justice (Care and
Protection of children) Act, 2000 has fulfilled its objectives?
Whether the machinery under this Act is working satisfactorily?
Whether this Act is able to provide justice to the juveniles?
Whether the changes brought by this Act are proper and
adequate?
Even after having such a law, child exploitation, abuse, and
tortures are not reduced. The criminal tendency of the children
is increasing day by day. Let’s discuss the grey areas of this Act.
The first is related to the responsibility of the Juvenile and Child
Welfare Officer in a police station as well as the special police
unit created in every district and city to deal with juveniles and
to upgrade the treatment of police with juvenile or children.
The said officer is usually, either busy in the criminal
investigation and administration or has no interest in such
matters. They are obliged to produce the child before the
welfare board for care, protection, development, and training,
but the police officers were reluctant towards their powers and
duties. This all happens because of the absence of superior
authority to control and supervise them. They are not
accountable to any agency. The employment of child for
begging, procuring of a child or Juvenile for hazardous
employment and keeping him in bondage and withholding his
earnings or use of such earning for his own purpose is made a
cognizable offence, that means the police can investigate the
matter without Magistrate’s order, but they are failed to take
steps.
The second problem is related to the powers of Juvenile Justice
Board, wherein after inquiry, the board has a very wide blanket
to ‘release’ the juvenile to home after advice or admonition or
to participate in a group counselling, community service, order
to pay fine, order to release on probation of good conduct and
lastly to send him to a special home, which defeated the
purpose of this Act i.e. training, education, reformation, and
rehabilitation. Even if the Board decided to send the child in a
special home under section 15(1)(g), then also, the period of
the stay may be reduced, which results in the release of the
maximum number of children without proper education,
training, and correction. Such vast and vague powers of the
Board are unreasonable and arbitrary in nature.
The third problem is of age, which is changed from 16 to 18
years in the case of a male child, which is not proper in recent
times. As per Indian Penal Code,1860 the child below 7 years is
doli-incapax (can’t be held liable for any offence) where a child
between 7 to 12 years is doli-capex (can be held liable for the
offence committed). That means a child above 12 years is
capable enough to understand the nature and consequence of
his act, and therefore must be held absolutely liable. In today’s
era, the age of majority is reduced. A male child attains puberty
in 13 years of his age. That means a male child above 13 years is
capable enough to commit sexual offences which required
sufficient mental and physical capability. But even after
committing such a heinous offence, he can be absolved from his
liability.
The next aspect is that this Act is purely reformative. The
present World is indeed focusing more on reformative theory,
but we cannot prevent crimes merely by reforming criminals.
Juvenile committing heinous offences like murder or rape must
face the penal consequences of their acts because each juvenile
is coming from different backgrounds possess different maturity
of understanding and many are encouraged to commit a crime,
as the punishment is very lenient. So, while applying
reformative theory, strict deterrent theory should also be given
importance.
Lastly, the Act bars the appeal against the order of the Child
Welfare Committee in respect to finding that the child is not
neglected. A person has no right to challenge the order of the
Board and Committee before any court resulted in the release
of the wrongdoer without the reconsideration of the matter.
This provision is against the right to appeal, thus justice is
denied.

Non-institutional services for the children in India:

The Juvenile Justice Act (JJA), passed in 2000, provides for the
rehabilitation and social re-integration of both children in need
of care and protection and those who have come into conflict
with the law. The children's home or special home is where the
rehabilitation and social reintegration of a child must start. The
foundation for non-institutional services is provided by CRC
Articles 20 and 21. Children who lack a family environment are
given alternative family care or are placed in institutions,
according to CRC Article 20. Adoption, foster care, and
sponsorship are examples of noninstitutional services that are
covered by the Act.

According to Section 2(aa) of the JJA, "adoption" refers to the

legal process by which a kid is permanently cut off from his
original parents and raised as the legitimate child of his
adoptive parents, with all the associated rights, benefits, and
obligations. Since adoption offers long-term replacement care
in a family setting, it is regarded as the best solution available
for orphaned, abandoned, and destitute children. The adoption
regulations in India are based on religion. The Hindu Adoption
and Maintenance Act, 1956 is a statute that governs adoption
among Hindus. However, there remains a legal void in India
when it comes to adoption by or of other communities.

The most significant non-institutional service is adoption. A

secular adoption law was introduced by the JJA in 2000. The
adoption of orphaned, abandoned, or surrendered children has
been made possible under the JJA's Section 41. Children may be
given in adoption by a Court once it is satisfied that the
necessary inquiries have been made, in accordance with the
provisions of the various adoption guidelines that are
periodically issued by the state governments or the Central
Adoption Resource Agency and notified by the Central
Government. The Child Welfare Committee must declare the
kids available for adoption. Regardless of a person's marital
status or the child's sex, the court may allow a kid to be given
up for adoption to childless couples. According to the Hague
 Convention, which India has ratified, domestic adoption is the
first choice.

Children whose parents are unable to care for them due to

illness, death, the desertion of one parent, or any other
emergency are given temporary substitute care through foster
care.

Sponsorship: Giving families financial assistance in order to

meet the health, dietary, and educational needs of children as
well as to enhance their overall quality of life.
Other Non-Institutional Services
Constitutional Provisions
 Article 14 provides that the State shall not deny to any person
equality before the law or the equal protection of the laws
within the territory of India.
 Article 15(3) provides that, “Nothing in this article shall prevent
the State for making any special provision for women and
children.”
 Article 21 provides that no person shall be deprived of his life
or personal liberty except according to procedure established
by law.
 Article 21A directs the State shall provide free and compulsory
education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.
 Article 23 prohibits trafficking of human beings and forced
labour.
 Article 24 prohibits employment of children below the age of
fourteen years in factories, mines or any other hazardous
occupation.
 Article 25-28 provides freedom of conscience, and free
profession, practice and propagation of religion.
 Article 39(e) and (f) provide that the State shall, in particular,
direct its policy towards securing to ensure that the health and
strength of workers, men and women and the tender age of
children are not abused and that the citizens are not forced by
economic necessity to enter vocations unsuited to their age or
strength and that the children are given opportunities and
facilities to develop in a healthy manner and in conditions of
freedom and dignity and that the childhood and youth are
protected against exploitation and against moral and material
abandonment.
 Article 45 envisages that the State shall endeavour to provide
early childhood care and education for all children until they
complete the age of six years.
Legislations:
There are many laws that deal with children. The following are
some of them.
 The Guardian and Wards Act, 1890.
 The Child Marriage Restraint Act, 1929.
 The Immoral Traffic (Prevention) Act, 1956.
 The Young Persons (Harmful Publications) Act, 1956. ÿ National
Policy for Children (22-08-1974)
 The Child Labour (Prohibition and Regulation) Act, 1986.
 The Infant Milk Substitutes, Feeding Bottles and Infant Foods
(Regulation of Production, Supply and Distribution) Act, 1992.
 The Pre-Conception and Pre-natal Diagnostic Technique
(Prohibition of Sex Selection) Act, 1994.
 The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
 The Juvenile Justice (Care and Protection of Children) Act, 2000.
ÿ National Plan of Action for Children 2005.
 The Commissions for Protection of Child Rights Act, 2005.
 The National Policy for Children, 2013.
Institutional Structures/Services relating to protection of
children
Various laws have established institutions and mechanisms to
defend the rights of children. Under the Juvenile Justice Act, the
following institutions and structures exist: Observation Home,
Special Homes, Children's Homes, Shelter Homes, Juvenile
Justice Boards (JJBs), Child Welfare Committees (CWCs), Special
Juvenile Police Units (SJPUs), and Child Protection Units. In
addition, the Family Courts Act of 1984 and the National
Commission for the Protection of Children Act of 2005
established Family Courts.

Shelter Homes are temporary drop-in centers for children in

need of care, protection, and immediate assistance. State
governments recognize reputable and competent nonprofits
and provide them with support to establish and manage as
many shelter homes as necessary. 4.2. In every district or group
of districts, the state government or a nonprofit organization
certified by the state must build and maintain Children's Homes
for the first reception of a child in need of care and protection
during the pendency of any investigation. The Kid Welfare
Committee may send the child to the Home for care, treatment,
education, training development, and rehabilitation once the
investigation is complete.

Observations In each district or group of districts, state

governments or nonprofit organizations certified by state
governments establish and operate homes for children in
disagreement with the law. Children in confrontation with the
law are temporarily placed in Observation Homes while any
investigation relevant to them under the Act is pending. A
juvenile is initially detained in the reception section of the
observation home for basic inquiries, care, and classification
according to his or her age, bodily and mental condition, and
nature of the offense.

In every district or set of districts, the state government or a

nonprofit organization approved by the state must build and
manage Special Homes for the reception and rehabilitation of
children in conflict with the law.

Aftercare Organizations must be founded or recognized in

accordance with the rules established by the respective state
governments under the Act. After leaving special homes and
children's homes, these organizations will care for children and
adolescents in order to help them lead honest, productive, and
helpful lives. Before each child's discharge from the Special
Home or Children's Homes, the probation officer's report will
be reviewed, and the necessity, nature, and duration of after-
care will be determined. The maximum length of stay in after-
care organizations is three years, and the juvenile or child must
be older than 17 but younger than 18; he or she may remain
there until the age of 21. Currently, aftercare organizations are
grossly inadequate. They must have facilities and trained
personnel for career counseling and guidance.

In accordance with the Act, Child Welfare Committees (CWCs)

must be established in each district to assist children in need of
care and protection. In Prerana v. State of Maharashtra and
Others, it was determined that children rescued from brothels
must be recognized as "children in need of care and protection"
under the Juvenile Justice (Care and Protection of Children) Act
of 2000. A defense attorney should not also represent the
victims. The Committee will consist of the Chairperson and four
additional members, one of whom must be a woman and
another must be an expert on issues pertaining to children. The
Committee will have the authority of a Metropolitan Magistrate
or a First-Class Judicial Magistrate. A child in need of care and
protection may be brought before the CWC by any police officer
or designated police officer or special juvenile police unit, any
public servant, Childline (a registered voluntary organization) or
any state government-recognized voluntary organization, or by
the child him or herself. There is a provision in the Act that
allows a social worker or a concerned citizen to produce the
child before the CWC, provided that the child is produced
within twenty-four hours (excluding the time necessary for the
journey). The primary goals of establishing CWCs are the
restoration of a child to his or her parents, including adopted
and foster parents, guardians, suitable individuals, and suitable
 institutions, and the protection of a child. Members of a CWC
are charged with the grave obligation of addressing issues
including child sexual abuse victims, trafficked children, child
laborers, indentured laborers, disabled children, displaced
children, migratory children, etc. Many of them, however, are
part-time, untrained volunteers who are ill-equipped to handle
the complicated legal concerns they must confront. Thus, the
CWCs require full-time, committed, and trained members.

This Act establishes the Juvenile Justice Board (JJB) to deal with
minors in dispute with the law. Every six months, the Chief
Metropolitan Magistrate (CMM) or Chief Judicial Magistrate
(CJM) must evaluate ongoing cases. If there are a high number
of pending cases, they must direct the Board to meet more
frequently or form more Boards in order to clear the backlog.
The Juvenile Justice Board is authorized to issue the following
orders:
1. Permit the adolescent to return home following advise,
admonition, and therapy, or
2. Require the teen to engage in group therapy and comparable
activities, or
3. Order the minor to complete community service, or
4. Order the juvenile's parent or the juvenile herself/himself to
pay a fine if she/he is older than 14 and earns money. A JJB
must consist of a Metropolitan or First-Class Judicial Magistrate
and two social workers. A female social worker must be
present. The Magistrate is designated as the JJB's Chief
Magistrate. The Magistrate must have specialized knowledge or
training in child psychology or child welfare, and the two social
 workers must have participated in health, education, or welfare
activities involving children for at least seven years.
5. Direct that the juvenile be released on probation for good
behavior and put under the care of any parent, guardian, or
other suitable person; such parent, guardian, or fit person must
execute a three-year bond for the juvenile's good behavior and
well-being. or
6. Order the juvenile to be released on probation for good
behavior under the supervision of any suitable institution for a
maximum of three years, or
7. Issue an order mandating the placement of the youngster in a
special home for three years. Taking into account the nature of
the offense and the circumstances of the case, the JJB has the
authority to shorten this period to less than two years if the
juvenile is older than 17 but younger than 18; otherwise, until
he reaches the age of 18. If a child above the age of 16 commits
a crime so grave that he or she cannot be held in a special
home, the Board can send him or her to a safe location after
notifying the state government.
National Children's Charter The Government of India
established the National Charter for Children, which was
drafted with input from State Governments/UT
Administrations, relevant Ministries and Departments, and
subject matter experts. The National Charter is an articulation
of the government's agenda for children. The document
highlights the commitment of the Government of India to
children's rights to survival, health and nutrition, standard of
living, play and leisure, early childhood care, education,
protection of the girl child, empowerment of adolescents,
equality, life and liberty, name and nationality, freedom of
expression, freedom of association and peaceful assembly, the
 right to a family, and the right to be protected from economic
exploitation and all forms of abuse. The treaty also provides for
the protection of impoverished children, children with
disabilities, children from marginalized and disadvantaged
communities, and child victims. In addition to defining the
responsibilities of the State and the Community towards
children, the treaty highlights the responsibilities of children
toward their family, society, and country. The National Charter
for Children was published in the India Gazette on February 9,
2004.

Schemes/Projects Various Ministries and Departments of the

Indian government are undertaking a variety of initiatives and
programs for the benefit of children. The Ministry of Women
and Child Development is currently implementing the following
schemes and programmes:
1. Integrated Child Development Services (ICDS)
Scheme: Through ICDS centres, health and nutrition-related
services are offered to children under the age of 18 as well as
pregnant and nursing mothers.
2. Rajiv Gandhi National Creche Scheme for Working Mothers'
Children: The Ministry of Women and Child Development has
launched a new Creche Scheme with effect from 1.1.2006 by
merging the National Creche Fund with the Scheme of
Assistance to Voluntary Organisations for Creche for Working
and Ailing Women's Children and revising the financial norms
from Rs.18,480/- to Rs.42,384/- per crèche per year. The
Scheme offers crèche services to children aged 0 to 6 years,
including supplemental meals, emergency medications, and
contingencies. The program is officially known as the Rajiv
 Gandhi National Creche Scheme for the Children of Working
Mothers. These creches will be divided 80:11:9 between the
Central Social Welfare Board, the Indian Council for Child
Welfare, and the Bhartiya Adim Jati Seva Sangh. Priority will be
given to underserved districts/areas and tribal regions, while
maintaining a balanced regional service footprint. In addition,
the Revised Scheme's eligibility requirements have been
increased from Rs 1,800 to Rs 12,000 per month per household.
As of November 20, 2006, a total of 25605 creches, including
5137 creches sanctioned under the former National Creche
Scheme, have been approved.
3. Nutrition Programme for Adolescent Girls in 51
Districts: Nutrition Component of Nutrition Programme for
Adolescent Girls in 51 Districts, implemented with additional
central assistance from the Planning Commission, contributes
directly and indirectly to the promotion of child nutrition. A
National Nutrition Mission has been established under the
chairmanship of the Prime Minister, as per a notification dated
31 July 2003, in order to provide policy guidance to government
departments for treating malnutrition in a mission manner.
4. Integrated Programme for Juvenile Justice: The Ministry of
Social Justice and Empowerment is implementing this initiative
in order to provide care to children in challenging situations and
children in dispute with the law through government
institutions and non-governmental organizations. Some unique
characteristics of the scheme areas:
o Establishment of a National Advisory Board on Juvenile
Justice
o Creation of a Juvenile Justice Fund.
 o Training, orientation and sensitization of Judicial,
administrative police and NGOs responsible for
implementation of JJ Act.
o Institutional care shall be used but only as a last measure
by enlarging the range of suitable alternatives.
o Financial assistance to bring about a qualitative
improvement in the existing infrastructure.
5. Childline India Foundation (CIF): CIF has been established as a
nodal body, with the help of the Government of India, to
oversee and assure the qualitative growth of the Childline
service throughout India. Childline is a toll-free telephone
service (1098) that anybody can call for child-related services. It
has established minimal quality requirements for the services
to be offered by its partner organizations running Childline
programs in different cities around the nation. It commences
preliminary activity preceding the launch of Childline in any
given city. CIF is also involved in raising awareness and
advocating for child welfare causes in order to reinforce these
efforts.
6. Integrated Child Protection Scheme: In light of the observed
inadequacies and the opinions and proposals received from
many quarters, it has been decided to consolidate the existing
child protection systems into a single, unified program called
the "Integrated Child Protection Scheme." The proposed
program is to offer care and protection for all children in
conflict with the law and children who require care and
protection. It would require measures to strengthen families
and avoid their dissolution, which would leave children
homeless and unprotected. In addition, children who are
already marginalized must receive assistance beginning with
 emergency outreach services and culminating with their
reintegration with their families/society.
7. Parliamentary Forum on Children: A Parliamentary Forum on
Children has been established under the leadership of the Lok
Sabha Speaker to address all matters pertaining to children.
MOS (WCD) is one of the Committee's Chairpersons. On May
22, 2006, she addressed the Parliamentary Forum on Children
on the Situation of Girl Children. During the discussion, several
topics pertaining to girl kid were discussed. The Forum's Chair
has committed to bring up matters pertaining to children in the
House if the need arises, Mr. Speaker. In addition, he promised
to include child budgeting on the agenda for the following
meeting. In another meeting of the Parliamentary Forum on
Children conducted on August 10, 2006, Ms. Prema Carriappa,
the Deputy Chairman of the Parliamentary Forum, addressed
issues pertaining to child labor. Swami Agnivesh shared his
perspective on the issue of child labor in the nation. The officers
of the Ministry of Women and Child Development attended and
took note of the meeting's ideas.

UN declaration on basic principles of justice for victims of crime and

abuse of power

A. Victims of crime
1. "Victims" means persons who, individually or collectively, have
suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those laws
proscribing criminal abuse of power.
2. A person may be considered a victim, under this Declaration,
regardless of whether the perpetrator is identified, apprehended,
prosecuted or convicted and regardless of the familial relationship
between the perpetrator and the victim. The term "victim" also
includes, where appropriate, the immediate family or dependants of
the direct victim and persons who have suffered harm in intervening
to assist victims in distress or to prevent victimization.
3. The provisions contained herein shall be applicable to all, without
distinction of any kind, such as race, colour, sex, age, language,
religion, nationality, political or other opinion, cultural beliefs or
practices, property, birth or family status, ethnic or social origin, and
disability.
Access to justice and fair treatment
4. Victims should be treated with compassion and respect for their
dignity. They are entitled to access to the mechanisms of justice and
to prompt redress, as provided for by national legislation, for the
harm that they have suffered.
5. Judicial and administrative mechanisms should be established and
strengthened where necessary to enable victims to obtain redress
through formal or informal procedures that are expeditious, fair,
inexpensive and accessible. Victims should be informed of their rights
in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the
needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress
of the proceedings and of the disposition of their cases, especially
where serious crimes are involved and where they have requested
such information;
(b) Allowing the views and concerns of victims to be presented and
considered at appropriate stages of the proceedings where their
personal interests are affected, without prejudice to the accused and
consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal
process;
(d) Taking measures to minimize inconvenience to victims, protect
their privacy, when necessary, and ensure their safety, as well as that
of their families and witnesses on their behalf, from intimidation and
retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the
execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous practices,
should be utilized where appropriate to facilitate conciliation and
redress for victims.
Restitution
8. Offenders or third parties responsible for their behaviour should,
where appropriate, make fair restitution to victims, their families or
dependants. Such restitution should include the return of property or
payment for the harm or loss suffered, reimbursement of expenses
incurred as a result of the victimization, the provision of services and
the restoration of rights.
9. Governments should review their practices, regulations and laws
to consider restitution as an available sentencing option in criminal
cases, in addition to other criminal sanctions.
10. In cases of substantial harm to the environment, restitution, if
ordered, should include, as far as possible, restoration of the
environment, reconstruction of the infrastructure, replacement of
community facilities and reimbursement of the expenses of
relocation, whenever such harm results in the dislocation of a
community.
11. Where public officials or other agents acting in an official or
quasi-official capacity have violated national criminal laws, the
victims should receive restitution from the State whose officials or
agents were responsible for the harm inflicted. In cases where the
Government under whose authority the victimizing act or omission
occurred is no longer in existence, the State or Government
successor in title should provide restitution to the victims.
Compensation
12. When compensation is not fully available from the offender or
other sources, States should endeavour to provide financial
compensation to:
(a) Victims who have sustained significant bodily injury or
impairment of physical or mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or
become physically or mentally incapacitated as a result of such
victimization.
13. The establishment, strengthening and expansion of national
funds for compensation to victims should be encouraged. Where
appropriate, other funds may also be established for this purpose,
including in those cases where the State of which the victim is a
national is not in a position to compensate the victim for the harm.
Assistance
14. Victims should receive the necessary material, medical,
psychological and social assistance through governmental, voluntary,
community-based and indigenous means.
15. Victims should be informed of the availability of health and social
services and other relevant assistance and be readily afforded access
to them.
16. Police, justice, health, social service and other personnel
concerned should receive training to sensitize them to the needs of
victims, and guidelines to ensure proper and prompt aid.
17. In providing services and assistance to victims, attention should
be given to those who have special needs because of the nature of
the harm inflicted or because of factors such as those mentioned in
paragraph 3 above.
B. Victims of abuse of power
18. "Victims" means persons who, individually or collectively, have
suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that do not yet
constitute violations of national criminal laws but of internationally
recognized norms relating to human rights.
19. States should consider incorporating into the national law norms
proscribing abuses of power and providing remedies to victims of
such abuses. In particular, such remedies should include restitution
and/or compensation, and necessary material, medical, psychological
and social assistance and support.
20. States should consider negotiating multilateral international
treaties relating to victims, as defined in paragraph 18.
21. States should periodically review existing legislation and practices
to ensure their responsiveness to changing circumstances, should
enact and enforce, if necessary, legislation proscribing acts that
constitute serious abuses of political or economic power, as well as
promoting policies and mechanisms for the prevention of such acts,
and should develop and make readily available appropriate rights and
remedies for victims of such acts.
 Prisons in India: Types and Functions
INTRODUCTION-
A prison is something that can be defined as a kind of
accommodation that is meant for individuals who have committed an
offence and are undergoing trial for having committed that offence.
The prisons and prisoners’ law in India are one of those laws that are
constantly unnoticed and forgotten. They are not given sufficient
importance as they should be for reform in todays’ scenario. There is
a constant lacuna and gap as there is a lack of stringent legislations
for people staying in the prisons who also have the right to live a life
with all dignity and basic respect which all the citizens of the country
are entitled to. There have been many instances wherein the
prisoners have been subject to inhuman conditions and have been
deprived of amenities such as balanced sanitary conditions and
proper food.
There are special orders that have been issued by the State
Governments that looks into the detention of prisoners and includes
the land and the property that has been attached thereto. The
administration of Prisons is mentioned in the State Lists as part of
item 4 in the seventh schedule of the Constitution of India. The
process of administration and management of prisons comes under
the powers of the state in consonance with the Prisoners Act 1894
and the Prison Manuals that individual states would have individually
drafted by states.
The Central Government provides certain rules and regulations with
regards prison rules to the State Government to ensure an effective
administration and making sure of the safety within the fore walls of
the prison.
The Supreme Court of India, through various judgments that
encapsulate several rules relating to prison administration. Some of
them have been enlisted below-
  Every person is entitled to his very own personal liberty. This
means just because a person is incarcerated or is in prison does
not mean that the person becomes a non-person.
 A person who has committed an offence becomes entitled for
the enjoyment of all different kinds of human rights but within
the confinement and limitations of imprisonment.
 As the person is already suffering for the commission of his
offence by incarceration, there should be no further
aggravation of his suffering.
The Supreme Court has paid heed to various prison issues such as
lack of proper healthcare and medical facilities, overcrowding,
provision of proper facilities for the inmates as well as free legal aid
which is explicitly provided under the Constitution of India.
TYPES OF PRISONS-
Prisons have been established under three different levels, as
enlisted below-
 The Taluka level
 The District Level; and
 The Central Level
These different jails and prisons are alternatively known as- Sub Jails,
District Jails and Central Jails. The infrastructure and various prisoner
facilities like various medical, rehabilitations and security are seen to
be better from that of the Sub Jails to the Central Jails.
Apart from these, there are various other types of jails such as the
Women’s Jails, Open Jails, Special Jails and Borstal Schools.
1. Central Jails- The criteria enlisted for being categorized as a
central jail is different and varies from one state to another. But
something that has been noticed as a trend in India is that
persons who commit offences that are entitled to a punishment
 for a long period (that is, a period more than two years) are
more often confined to Central Jails and these jails have a larger
capacity and occupancy than those of other jails. These jails
have additional facilities such as rehabilitation.
The largest number of Central Jails are situated in Delhi (16) followed
by Madhya Pradesh(11).
2. District Jails- They serve as the primary prisons in the states and
the union territories where there is no availability of Central
Jails. Uttar Pradesh has about 57 District Jails, Madhya Pradesh
has about 39 District Jails and Bihar has about 31 District Jails.
3. Sub Jails- These jails are smaller in sized and are placed at a
sub-divisional area of the states. There are states that have
implemented a relatively higher number of these kinds of jails
and have a very well-organized set-up of prisons even though it
is of a lower level than the other jails. For example,
Maharashtra has 100 sub jails, Andhra Pradesh has about 99
and Tamil Nadu has 96sub jails.
4. Women’s Jails- These are those prisons that look forward to
housing exclusively female prisoners. These prisons may be
existing at a sub-divisional, central and district level. India has a
total of 20 Women’s Jails in India with capacity of 5200 women
and has an occupancy rate of 60%. As Women’s Jails have a
very limited capacity, women prisoners in India are often
housed in other prisons. Maharashtra has about 5 women’s
jails, whereas Kerala and Tamil Nadu have about 3 jails each.
5. Borstal School- They are a type of a youth detention centre and
are used for incarcerating and housing minors and juveniles.
Borstal schools make sure that juveniles and other young
offenders are ensured sufficient care, welfare and
rehabilitation. This is to ensure that they are kept in an
environment that is volatile and safe. The juveniles in such
 schools are provided with reformational training, education and
moral influence that conducive and prevent crime rates. Tamil
Nadu is known as having the highest occupancy with about 678
inmates.
FUNCTIONS-
The socio-legal system of India is always based on non-violence,
mutual respect for each other and treating other humans with
dignity. The major lesson that Indian laws seek to implement that just
because a person commits a crime, that does not mean that the
person stops exists being a human or can be deprived from personal
liberty. The prisoners are also entitled to have human rights, because
prison torture is a confession to the failure of the justice system.
This has been established through Article 21 of the Constitution of
India that guarantees personal liberty and hence prohibits all kinds of
inhuman, cruel and degrading treatment towards any person
whether an Indian National or an alien. Any violation of this article
would attract Article 14 of the Indian Constitution that encapsulates
the right to equality and equal protection under the law. Further, the
rights of a prisoner is also dealt with under Prison Act, 1894. Any
excess treatment that is committed to a prisoner by the Police would
attract the wrath of the legislature and the judiciary. Therefore, the
Indian Judiciary especially the Supreme Court has been increasingly
efficient and vigilant against possible encroachments on the rights of
the prisoners.
Prisons have the function of upholding the rights of the prisoners as
enlisted below-
 Right to Legal Aid- Human rights and personal liberty would see
no use if a person isn’t provided with appropriate legal aid to
enable that they have access to justice in case of any gross
violation of their rights. Legal Aid has become something that is
no longer a matter of charity but is something that constitutes a
 legal right. The basic notion that Legal Aid underlines is that
justice should be administered properly and that it should be
easily available and accessible. It should be made sure that it is
within the reach of everyone who wishes to enforce their legal
rights. Legal Aid seeks to offer an opportunity to the Indian
society for the redressal of grievances of the poor and the
needy and thereby establish the foundation of Rule of Law.
Judiciary has played a very vital role in the development of the
concept of legal aid and thereby leading to the expansion if its scope.
In the case of M.H. Wadanrao Hoskot v. State of Maharashtra, the
Court has held that the right to legal aid is one of the basic
necessities of fair trial.
 Right to Speedy Trial- This is one of the most important
fundamental right of a prisoner that is implied through Article
21 of the Indian Constitution. This aspect covers social interest
as well as public interest.
In the case of Hussainara Khatoon v. State of Bihar, it was seen that a
large number of men, women and juveniles are still in prison
awaiting trial. Therefore, this case laid down the foundation for
ensuring speedy justice.
In the case of Mathew Areeparmtil and other. v. State of Bihar, it was
seen that a large number of people who have committed offences
were still awaiting trial for trivial offences. In this case, directions
were passed to release such persons.
Further, in this case it was ordered that the cases in which there were
tribals involved in offences undergoing imprisonment for a period
more than 7 years, they should be released on an bail via a personal
bond. In the cases where there has been no trial or proceedings that
have been taken for or against the accused within a period of three
years, from the time the FIR was lodged, the accused in such case
must be released under Section 169 of the Code of Criminal
Procedure. There are a few cases wherein the charge-sheet has been
submitted and the investigation has been completed within the last
three years, the accused should be subject to reinvestigation and
must be released. Fresh facts should be considered and he shouldn’t
be arrested without the explicit permission of the Magistrate.
In the case of Raj Deo Sharma v. State of Bihar, the major issue that
was addressed was whether based on the facts and the
circumstances of the cases, the prosecution that is against the
petitioner can be quashed on the reason that there was a delay in
the conduction of trial. The petitioner has applied for the bail. The
application for bail was allowed and the Supreme Court issued the
following directions-
1. If the trial for the offence committed is punishable with an
imprisonment for a period that exceeds 7 years, it does not
matter if the accused is in jail or not, the court would close the
prosecution evidence within a period of two years from the
date of the record of the plea.
2. If the accused has been in jail for a half of the period of
punishment as mentioned in the offence, the trial court has
been vested with the power of releasing the accused on bail on
certain conditions.
3. If the offence has been under trial that is punishable with an
imprisonment for a period that exceeds 7 years, it does not
matter if the accused is in jail or not, the prosecution must
close the evidence when three years end from the date of
recording of the plea.
 Right against solitary confinement and Protection from torture-
Separate or solitary confinement of the prisoner, or the
complete isolation of the prisoner from the entire human
society is prohibited. Torture is something that is considered
 normal by an investigating agency for the extraction of
confession. This morally shows the imposition of the stronger
over the weaker.
In the case of Prem Shankar Shukla v. Delhi Administration, the
appellant happened to be an under-trial prisoner in the Tihar Jail. He
was supposed to be taken from the jail to the magistrate and back to
the prison periodically with regards to certain cases that were
pending against him. In such cases handcuffs should not be practiced
unless there is a warrant. The Supreme Court held that handcuffs
must be used only as a last resort.
In the case of D.K. Basu v. State of West Bengal, the court held that
torture during custody is a gross violation of human dignity and is
degrading to the individual. The right to life and liberty is an
expression of human right and therefore, the court declared that no
person who is arrested can be detained in custody without being
informed of the grounds of arrest and he would not be denied the
right to a legal practitioner.
Corrective measures in India
Punishment as a means to reform the offender was not considered as
such during Hindu and Mughal period in India. During this period
punishment was mainly based on deterrence. The recognized modes
of punishment were death sentence, hanging, whipping, flogging,
branding or starving to death. Prisons were considered to be places
of torture. Treatment of prisoners was inhuman.

Prison reforms started in India from the British era. They made
tremendous efforts for the reformation of Indian prisons and
prisoners. They introduced radical changes in the then existing prison
system. Sole purpose of sending a criminal to prison is to transform
him into an honest and law abiding citizen. Jail enquiry committees in
1836 and 1862 expressed concern for the insanitary conditions of
Indian prisons which resulted in deaths of the inmates.

As a result of the recommendations the three enquiry committees

the Prison Act 1894 was enacted. It provided for better prison
administration and the act provided for classification of prisoners and
the sentence of whipping was abolished. Emphasis was also laid on
safe custody of prisoners and under-trials but also on their
reformation and rehabilitation in the society.

After independence a committee was for under Dr. W.C. Reckless, a

technical expert of the United Nations on crime prevention and
treatment of offenders, to make recommendations on prison reforms
in 1951.

Some guidelines issued were:

1. Correctional measures should form an integral part of the
Home Department of each State.
2. Probation and Parole should be used to reduce burden on
prisons.
3. State jail manuals should be revised periodically.

Why do we need corrective measures?

A person is not a born criminal. It is due to his association with bad
company that often leads him into trouble. A person is always
capable of reforming provided he sees his release in the society as a
reward for it. If no such temptation is provided to accused persons,
he will never try to reform himself and always languish in jails.

This often leads to overcrowding of prisons and serious health issues

arise in the prisons. It is to be noted that the corrective methods are
required for the accused persons and not for under-trials. A
mechanism has to be prepared for separating under trials from
convicts. Due to various corrective measures a convict can be
reformed and be released in the society because it is always better to
reform a convict than to punish a person who is already repenting for
his wrongdoing. It is ultimately the fight against crime and not
criminals.

Various corrective measures in India

Various corrective measures we have in India are open prisons,
concept of parole, probation, prison labour etc.

Education in prisons are also provided for example:

 Fundamental academic education designed to provide the
intellectual tools needed in study and training, and in everyday
life
 Vocational education, designed to give training for an
occupation.
 Health education
 Cultural education
 Social education.

Service of educated inmates also provided a helpful hand to the

prison authorities as well as to the society. After being released , they
actively participate in the economic progress of the society. They
prove to be useful subjects of the society.

Open prisons play an important role in the reformation of prisoners.

Besides being less costly open prisons provide an advantage to the
Government to utilize the capabilities of the inmates to a great
extent. The monetary returns are positive and once put into
operation, the open jails acquire financial self-sufficiency. Open
prisons are also helpful in reducing the overcrowding of the prisons
which is urgently required in the case of Indian prisons. Appreciating
the concept of open prisons in India the Supreme court in the case
of Ramamurthy v. State of Karnataka[1]held that:

though open-air prisons, create their own problems which are

basically of management, we are sure that these problems are not
such which cannot be sorted out. For the greater good of the society,
which consists in seeing that the inmates of a jail come out, not as a
hardened criminal but as a reformed person, no managerial problem
is insurmountable. So let more and more open air prisons be opened.
To start with, this may be done at all the District Headquarters of the
country�.

There are some states in India those have excelled in the concept of
open prisons. Rajasthan is one of them. First state to adopt the
concept of open prisons was Uttar Pradesh but now the state lags
behind in implementing the concept. There are certain lapses in the
concept of open prisons. As we all know that the reformative reforms
are for convicts, the under trial population in our jails, being almost ¾
of the prison population is left out of these reforms.

Those who are not eligible for open prisons are:

1. Dacoits
2. Rapists
3. Thieves

Usually those who are serving life imprisonment would be eligible for
open prisons. Lesser check and lesser supervision is given in open
prisons, often leads to the escaping of convicts. This in turn affects
the scope of other convicts being granted the opportunity. It has
been suggested by the Jail Reforms Committee that the criterion for
booking prisoners to these open jails should not be long termers or
short termers but the overall possibility of prisoner's propensity to
reform and re socialize should be kept in mind for selecting the
prisoners for open prisons.

Parole is a temporary release allowing the convict to spend some in

the community. This in turn helps him to adjust to the normal social
life outside the prison and it therefore, signifies the transitory phase
from imprisonment to normal freedom. Parole is granted only on
special grounds and allows the prisoner to live at liberty subject to
the conditions which may be imposed by the parole order.

Violation of parole order may result in the cancellation of the order

and the convict is sent back to the prison. Duration of parole spent by
the convict is not counted in the duration of imprisonment. Parole is
not a right and has to be earned by the convict. Parole is granted to
those who are sentenced for imprisonment for more than 18
months.

The concept of parole is often confused with the concept of furlough

granted to the prisoners to visit their families for short periods. It is a
concept of military system. States like UP, Maharashtra contain
provisions which deny furlough on the ground of public interest.
Courts usually do not interfere in matters of furlough and parole, but
if it amounts to violation of fundamental rights, courts can interfere.

The basic concept of these two is to keep the prisoners in contact

with the society and his family which would not otherwise be
possible in case of long imprisonment. The decision to release a
prisoner on parole is taken by the Parole Board. The questions to be
determined by the board are whether the convict has profited by his
stay in the institution, whether he is so reformed that it is highly
unlikely that he will commit another offence, his behavior in prison.
But in reality not many prisoners are able to get the benefit of parole
in India, because of the rigidity of parole rules and the apathy of
police officers.

In Hiralal Mallick v. State of Bihar[2],the Supreme Court observed-

One method of reducing tension is by providing for vital links
between the prisoners and his family. A prisoner insulated from the
world becomes bestial and, if his family ties are snapped for long,
becomes de-humanised. Therefore, we regard it as correctionally
desirable that this appellant be granted parole and expect the
authorities to give considerations to paroling out periodically
prisoners, particularly of the present type, for reasonable spells,
subject to sufficient safeguards ensuring their proper behavior
outside and prompt return inside.�

The only problem I see with parole is that the decision taken by the
board can be mala fide in some cases and they can be selective in
their approach in choosing prisoners for parole.

The term probation is derived from Latin word 'probare' which

means 'to test' or 'to prove'. Etimologically, probation means 'I prove
my worth'. Homer S. Cunnings observed, Probation is a matter of
discipline and treatment. If probationers are carefully chosen and
supervision work is performed with care and caution, it can work
miracles in the field of rehabilitation. During probation, probationer
lives in the society and spends his life under conditions imposed by
the courts or other authority and is subject to supervision by the
probationer officer.

The Supreme Court spelt out the object of the Probation of Offenders
Act in the case of Ramji Missar v. State of Bihar[3] in the following
words-
The purpose of the Act is to stop conversion of youthful offenders
into stubborn criminals as a result of their association with hardened
criminals of mature age in case of youthful offenders are sentenced
to undergo imprisonment in jail. Modern criminal jurisprudence
recognizes that no one is a born criminal. Although not much can be
done for hardened criminals, yet a considerable emphasis has been
laid on bringing about reform of young offenders not guilty of very
serious offences by preventing their association with hardened
criminals.�

In the concept of probation, the court orders no sentence but

requires the offender to be under the supervision of a probation
officer. The ultimate object of probation is to reclaim back the young
and first time offenders who have fallen prey to bad company and
gone astray and to make them social once again. Unlike parole,
probation power is vested in the judiciary so that it does not become
subject to extra judicial agencies and create serious problems as
these agencies will be guided by their own value considerations. Sec
360 CrPC also provides for probation of offenders which has to be
decided by the courts but it does not provide for any role for
probation officers in assisting the Courts in relation to supervision
and other matters. The Probation of Offenders Act does no
distinction on the basis of age or sex as criminal procedure code and
as such all offenders whether they are above the age of 21 or not can
avail the benefit of the Act.

Moreover, the act does not merely deal with first time offenders but
also those who are previously convicted and allows probation if it is
proper to do so in the circumstances of the case including the
character of the offender and nature of the offender. So we can see
that the scope of the Act is much wider than the criminal procedure
code. The report of the probation officer has to be taken into account
by the court while granting probation except in case of sec 3 of the
Act which provides unsupervised release after due admonition in
offences like theft, cheating, or any offence punishable with
imprisonment up to two years. Important factors in the report being
the risk to the society if the person is released or whether the risk is
worth taking, personality of the offender etc. It has been held by the
Supreme Court in the case ofState of T.N. v. Kaliaperumal[4]that the
provisions of the Act of 1958 and section 360 crpc will not be
applicable in the matters of Prevention of Corruption Act.

The problem that lies in probation is that the offender can be

released only on his entering into a bond with or without sureties. It
is also necessary that the offender or his surety has a fixed place of
adobe or regular occupation within the area of jurisdiction of the
court. In India, many offenders are not in a position to give sureties
or do not have fixed place of adobe or regular occupation. In such
extreme cases should be brought under the ambit of sec 3 of the Act
by providing release to the offender after admonition.

The social justice bench of the Supreme Court of India in the case of
In Re-Inhuman Conditions in 1382 Prisons said-Prison reforms have
been the subject matter of discussion and decisions rendered by this
Court from time to time over the last 35 years. Unfortunately, even
though Article 21 of the Constitution requires a life of dignity for all
persons, little appears to have changed on the ground as far as
prisoners are concerned and we are once again required to deal with
issues relating to prisons in the country and their reform� said the
Bench comprising of Justices Madan Lokur and R.K. Agarwal.
No society can be free of crimes. It's a myth. Crimes will be
committed no matter how stringent the law will get. We cannot
eliminate every criminal from the society. Reformative or corrective
measures are therefore required to turn a criminal into a social being
so that after his release he will contribute to the society in any way
he can. Various governments are focusing on turning the manpower
trapped in jails to their benefit in anyway they can. Innovative and
useful methods are emerging due to the participation of various
NGO'S, spirited citizens in this area of reformation of criminals. We
should hate the crime and not the criminals. Corrective measures are
a step towards this noble thought. We should pursue this effort even
though there are some drawbacks in implementing them. Part of the
government does not end by just by making a law but by seeing it
implemented it in full spirit.
Victims And Victimology In India
when a crime happens there may be numerous offenders, victims
and the criminal justice administrators otherwise called the crime
investigating officers. The role played by all of them is different the
offender is the one who commits the crime, affected by various
factors and circumstances; the victims are those who suffer physical,
social, financial or emotional injury or harm which needs to be
promptly redressed by providing them easy access to justice[1] and
finally, the justice provider and the persons involved in the
mechanism in rendering justice is collectively known as the criminal
justice system. The criminal justice system is a mechanism
established by governments in its endeavor to control crime by
punishing and imposing penalties on those who violate laws[2].

The following are, inter-alia, five important components of the

criminal justice system:
 Law enforcement
  Prosecution
 Defence attorney
 Courts and
 Corrections.
Unfortunately, the rights of victims are not considered as one of the
major component of the criminal justice system in India. Thus, the
author of this paper has analyzed the concept of victimology as
applied in various countries and is desirous to put forth the changes
that may be brought in the criminal justice system in India
considering the victims as the fulcrum of the system.

Victimology can be regarded as a more holistic approach than

criminology, acknowledging the systemic injustices that may lead
victims to become perpetrators themselves. It also helps reduce the
likelihood that perpetrators will commit additional offenses, because
it can help them rethink about the individuals they might otherwise
victimize[3]

Research Methodology
Method of Research
Pure doctrinal and analytical method of research will be followed.
Various reports, articles, legal provisions and case laws will be used
to study and prepare the present work. Primary as well as secondary
sources of data will be used in this paper. Primary data includes
various constitutions, legislations, judicial decisions of different
nations and International conventions. The researchers will be using
secondary sources of data such as books, various national and
international journals, articles and materials available on the internet

Research Questions
  Whether the rights of victims in India is considered as the major
component of the criminal justice system?
 Whether victimology induces the relationship between the
victim and the accused?
 Whether in India victims are deprived of their rights under the
criminal justice system and they are treated as mere witnesses
for prosecuting and punishing the offenders?
Research Hypotheses
 Victimization is the process of being victimized or becoming a
victim, the action of singling someone out for cruel or unjust
treatment
 Victims who have suffered harm are just compensated for the
damages that they have suffered through civil law and the
accused is held responsible for such compensation.

Concept Of Victims And Advent Of Victimology

Meaning and Definition of Victims
Why in history has everyone always focused on the guy with the big
stick, the hero, the activist, to the neglect of the poor slob who is at
the end of the stick, the victim, the passivist or maybe, the poor slob
(in bandages) isn't all that much of a passivist victim maybe he asked
for it? [Hans von Hentig The Criminal and his Victim 1948]

The quote above illustrates that, in the past, there was an unequal
focus on the criminal event and the person acting in violation of
criminal laws. For centuries, legal philosophers and lawyers have
been preoccupied with the principles of criminal law, the criteria for
criminalization, and the rights of the defendant; while criminologists
typically concentrated on the characteristics of criminals, what
caused their criminal propensity and how to prevent crime.

Their point-of-departure was always the offender, never the person

who suffered as a result of the crime. It was only in the recent,
around the 1940s, that academics also started to take an interest in
victims of crime and their standing in criminal procedure.

The victim constitutes the most important as well as the most

aggrieved entity in any criminal justice administration. The
emergence of victimology[4] movement in the late 1970s and early
1980s in the United States of America[5] (U.S.) is credited for putting
at the forefront the plights of the victims by describing them as the
forgotten entity in the criminal justice administration. The movement
in the U.S. was a result of the continuous neglect and ignorance of
the rights of the victims in the criminal justice process.

The story holds true for India also. In India, it is widely believed that
victims do not have sufficient legal rights and protections, and hence
they are considered to be the most neglected entity in the entire
criminal justice administration. There is a general feeling that unless
justice to the victims is made the focal point of the Indian criminal
justice administration, the system is likely to become an institution
for perpetuation of injustice against the victims.

The term victim refers to a person who has suffered any loss or injury
as a result of the actor omission against which the accused person
has been charged and the expression victims also includes in itself
the guardian or legal heir of a victim[6]. The term victim in general
parlance refers to all those who experience injury, loss or hardship
due to any cause and one of such causes may be crime. Therefore,
victimology maybe defined as a study of people who experience
injury or hardship due to any cause. It involves study of victim
characteristic and maybe called victim profiling [7]

Victimology recognizes two types of victims: first type consists of

direct victims i.e. those who are alive and suffering on account of the
harm inflicted by the accused while committing the crime and second
type comprises of indirect victims who are dependents of the direct
victims of crimes who undergo sufferings due to deprivation of their
breadwinner.[8]

We can also define Victims as persons who, individually or

collectively, have suffered harm, including physical or mental injury,
emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those laws
proscribing criminal abuse of power[9]
A victim of crime cannot be a forgotten person in a criminal justice
system. It is he who has suffered the most[10].

The Malimath Committee Report (2003) in Chapter 6 espoused the

idea of justice to victims. The Report highlighted the plight of the
victims of crime in every criminal justice process and recommended
the constitution of a Victim Support Service Coordinator to safeguard
the interest of the victim at the trial stage. The special concern for
victim got incorporated into Code of Criminal Procedure, 1973
through measures in the Amendment in 2005, 2006 and 2008. The
2008 Amendment has incorporated and elaborate Victim
Compensation Scheme that provides for every State Government to
set up a Victim Compensation Fund[11].
Even though no separate and special law has yet been enacted in
India for victims of crime, still the silver lining is that justice to victim
has been rendered through affirmative action and orders of the
Supreme Court. The trends in victim justice and the constitutional
commitment to fair justice to all the citizens seem to have motivated
the Indian Supreme Court to evolve distinct victim justice
jurisprudence in India. The Supreme Court in various decisions has
taken a provictim approach.

In Rattan Singh v. State of Punjab[12], Krishna Iyer, J. held that:

It is a weakness of our jurisprudence that the victims of the crime do
not attract the attention of law. Indeed, victim reparation is still the
vanishing point of our criminal law. This is a deficiency in the system
which must be rectified by the legislature.A more attention should be
drawn to this matter.

In Maru Ram v. Union of India[13], Krishna Iyer, J. held that:

while social responsibility of the criminal to restore the loss or heal
the injury is a part of the punitive exercise, the length of the prison
term is no reparation to the crippled or bereaved but is futility
compounder with cruelty. Victimology must find fulfilment not
through barbarity but by compulsory recoupment by the wrongdoer
of the damage inflicted not by giving more pain to the offender but
by lessening the loss of the forlorn.

In Dayal Singh v State of Uttaranchal[14], the Supreme Court held

that:

The criminal trial is meant for doing justice to all- the accused, the
society and the victim. The courts do not merely discharge the
function to ensure that no innocent man is punished, but also that
the guilty man does not escape.

Advent of victimology
Victimology has traced back to 1920's itself. But in 1940 the founders
of this branch of knowledge, Mendelsohn, HansVon Hentig and
Wolfgang initiated the use of the term victimology. This is not a new
concept; even before the study on victims was started, there were
numerous victims in the society.

Concept of Victimology
'The scientific study of crime victims is called, victimology, after
Benjamin Mendelsohn who coined the term in 1947. Comparable to
criminology, where the offender plays a central role, the focus of
victimologists lies with the victim and the different aspects of
victimization. Victimology is: the scientific study of the extent,
nature, and causes of criminal victimization, its consequences for the
persons involved and the reactions hereto by society, in particular
the police and the criminal justice system as well as voluntary
workers and professional helpers.

Victimology is the scientific study of victimization, it includes the

relationship between victim and the accused, the interaction
between victim and the criminal justice system i.e. the police and the
courts and the correctional officials[15]. This concept also has an
implied relationship with social groups, institutions, media, business
and social movements. Victimization is the process of being
victimized or becoming a victim, the action of singling someone out
for cruel or unjust treatment.

We can say that victimization is the relation between victim and the
accused, there is no exact definition available on it. There are
different theories of victimization which are Primary victimization,
Secondary victimization (post crime victimization), Re-victimization
(repeatedly became the victim), Self-victimization (variety of reason
to justify abuse).

Moreover, Victimology can also be regarded as the study that

outlines the steps to be taken to prevent victimization against crimes
and provide legal remedies to the victims of crime. The impact of
victimization on crime affected persons drew attention of criminal
law jurisdictions around the world and they were convinced that
victims need to be treated with compassion and dignity and their
fundamental rights must be protected and preserved.

The genesis of victimology as a branch of criminology can be traced

in the UK, West Germany, Canada, Australia, New Zealand and the
USA. Victimology is an emerging science and an integral branch of
criminology which studies the interrelationship between the violators
of law i.e., criminals and the sufferers of crime i.e., victims. It has its
emphasis on both the victim's state as well as his co-relation to the
criminal.

Therefore, the development of the concept of victimology has drawn

its basis and is built on the foundations of various fields such as
criminology, law, medicine, psychology, psychiatry, social work,
politics, education and public administration. Under the Indian
criminal justice system, victims of crime have no inherent
prerogative, and the state treats victims as mere witnesses. Thus, it is
indispensable under the justice system to compensate to the person
who has suffered, that is to say, that the accused is responsible for
the reparation and restitution of any harm inflicted to the sufferer of
an offence.
Plight Of Victims In India
In India victims are deprived of their rights under the criminal justice
system and they are treated as mere witnesses for prosecuting and
punishing the offenders. Victims who have suffered harm are just
compensated for the damages that they have suffered through civil
law and the accused is held responsible for such compensation.
Compounding the victim is considered as justice under the Indian
Criminal Justice System[16].

I. The Constitutional Remedies for Human Rights Violation

II. The Criminal Procedure Code, 1973 (herein CrPC)
III. The Fatal Accidents Act, 1855
IV. The Probation of Offenders Act, 1958
V. The Motor Vehicles Act, 1988

Victims of a crime are awarded with compensation for the loss they
have suffered based on the above mentioned statutes. Protecting
citizens and their property from any kind of harm is considered as the
primary objective of the state under the Criminal Justice System. The
state, therefore, carries on this duty by ensuring that the citizens do
not take law into their hands to satisfy their interests. When a crime
is committed, against the norms and principles of the society, state
itself becomes a victim for prosecuting and punishing the offender.

Criminal Justice system concentrates on the crime, the offender, trial

of the case, proving the offender guilty and awarding punishment.
After playing their role as witnesses in the proceedings, the victims
are forgotten and marginalized. They are not provided with any
assistance and when they are not cared of, it creates a sense of angst
in them which may subsequently lead to distortions in the Criminal
Justice System.

Therefore, there is a dire need to shift our focus from the offenders
to the victims who have suffered substantial injury. As like how the
transformation to crimes from torts took place we also need such
transformation on this regard. In case of a cognizable offence, if a
victim of the offence approaches the police to give information, the
police is obligated to record the information in writing and the same
after being read out to the victim/informant has to be signed by the
informant.

The police cannot refuse to provide the informant with a copy of the
First Information Report according to sec. 154(1) and (2) of CrPC. The
victim/informant can send the information in the form of writing to
the Superintendent of Police provided the police denies to record the
same under sec.154 (3) of CrPC. If in case the police officer refuses to
investigate the matter, he/she is required to state the reason for not
proceeding with the issue to the informant in the form of facts.

This is laid down in sec. 157(2) of CrPC. Generally, the complainants

are not treated well by the police and at times instead of attending to
their grievances they are being harassed at police stations. Not every
time the complaints are recorded truthfully by the police and in many
cases the facts are either manipulated or distorted according to their
convenience. Offences that are cognizable are made as non-
cognizable and vice- versa.

We can also find that many a times accused himself gives the
complaint and the investigation is initiated by him. These may be
some potential reasons why the victims get themselves detached
from the system as such. Though victims under sec. 190 of CrPC. have
the right to approach the Magistrate directly with his complaint
thereby avoiding the redress by visiting the police station, the
process of investigation is entirely in the hands of the police.

The victims have their role only when the police feel so. Only in
certain states the police are instructed to provide the victims with
the information regarding the investigation process when they ask for
it.

The plight of the victims is pitiable until and otherwise the police file
the charge sheet under sec.173 of CrPC. The Magistrate after taking
cognizance of the charge sheet decides as to whether the
proceedings can be dropped and if so, he issues notice to the
informant to hear his grievances as required of him. But the dropping
of the proceedings would not provide the victim with an opportunity
to be heard. Under sec.250 of CrPC. the informants are required to
pay compensations to those accused of offence without just
cause/reason under the direction of the Magistrate. It is recognized
under sec.357A of CrPC. that conviction of the offender is not
required to provide victims with financial reliefs.

Also, the compensation can be availed through the Code of Criminal

Procedure, 1973. The state governments along with the central
government will provide the scheme for compensation.
Compensations under this scheme can be provided for the victims of
a crime who have suffered substantial loss or damage as well as for
their dependents who need compensations. Based on the
recommendation made by the court for awarding compensations,
the District/ State Legal Service Authority will decide on the quantum
that can be awarded as compensation.
Further, under sec.358 of CrPC., the court is empowered to order
compensations to be made by a person to another who was
wrongfully arrested by the police officer due to the incorrect
information given by the former. If a person is convicted for a non-
cognizable offence, expenses that he has incurred for proceeding
with the prosecution is refunded to him based on the order of the
court under sec.359 of Cr. P.C. Under sec.5 of the Probation of
Offenders Act, 1958, trail court is empowered to pass an order to
award compensation to the victim. Such an order can only be passed
by the trail court.

The means through which fine can be recovered by attaching and

selling of the offender's movable property and arrears of land
revenue from movable as well immovable property is provided under
sec. 421 of CrPC. The courts under sec.431 of CrPC. are empowered
to recover money, except fine, which is payable in compliance with
any order made as if it were a fine under the Code.

In India we can find that numbers of offences committed are

increasing whereas the reporting of the crimes is decreasing though
numerous number of people every year are suffering both physical as
well psychological damages which are the effects of the crime
inflicted upon them. Due to fear of victimization by the perpetrators
and their reprisals, the victims as well their relatives most of the
times fail to provide information regarding the crime inflicted upon
them. Therefore, crime prevention and detention becomes arduous
for the police. Undoubtedly, witnesses play a major role in assisting
the police in investigation process as well adducing evidence in the
court to ensure successful criminal prosecution.

Role Of Judiciary In Ensuring Rights Of Victims

Justice is not only in the end result; it is also in the process.
Traditionally, control and prevention of crimes, punishment and
rehabilitation of offenders and protection of individuals and their
property were the only accepted principles of the criminal justice
system. Therefore, there is a need to expand the meaning of justice.
Justice should not be confined only to conviction or acquittal of the
accused but also must ensure to inspire the confidence of the
witnesses for conviction of the guilty and particularly the victims of
the crime.

The victims by providing information regarding the crime set the

criminal justice system in motion and the greatest relief available to
them is access to justice. In cases of rape, the entire case becomes
baseless due to the delay in the collection of samples and here the
victims being women and children are deprived of the access to
justice. The rape victims, sometimes, for the purpose of taking
evidence are held in protective custody which lacks no legal basis as
such.

The victim is not entitled to engage an advocate of his/her choice

even though the accused is[17]. Under sec. 24(8) of CrPC the victim,
for the purpose of prosecution, can engage an advocate of his/her
choice to assist the former only if the court permits him for the same.
The advocate so engaged is bound to act under the directions of the
prosecutor and can submit written arguments after the taking of
evidence only if permitted by the court [s. 301(2) of CrPC].

Restitution of the victims though not a statutory right in India has to

be made legislative because examining the plea of the victims for
Redressal or for the loss suffered is not sufficient. The Code of
Criminal Procedure has recognized the compensation of victims as a
right but making it available only if a substantive sentence of fine is
imposed and limiting it to the amount of fine actually realized is
reducing the scope for compensation. Though under sec. 357(3) of
CrPC. fine can be imposed by the Magistrate, where it has not been
imposed, courts are inconsistent in invoking this section.

The Law Commission in its 152nd Report had recommended that sec.
357A of CrPC has to introduced which prescribes that in case of
bodily injury which has not resulted in death, compensation
amounting to Rs. 25,000/- should be awarded to the victims at the
time of sentencing and in case of death Rs. 1,00,000/-. Under this
section if the compensations awarded in accordance with sec. 357 of
CrPC. are not adequate for rehabilitation of the victim or if the case
ends in an acquittal or discharge of the accused, the court is
empowered to order the state to pay such compensations for the
victim's rehabilitation.

The victim is also entitled to request the State or District Legal

Services Authority for rehabilitation even if the accused is not tried.
Sec. 357A of CrPC. was introduced/ incorporated only after it was
mandated by the 154th Law Commission Report. The point to be
noted here is that for a section to be implemented in practice it takes
years together which is unhealthy to a state as it delays justice for the
victim.

In the case of Sakshi v. Union of India[18], the in-camera trails were

mandated by the Supreme Court to maintain the dignity of the
victims particularly in case of offences like rape and when the victim
is a child. In another case of Nirmal Singh Kahilon v. State of
Punjab[19] the Apex court held that victims of a crime are also
entitled with the right to fair investigation, equally like the accused,
as provided by our Constitution under Article 21.

Supreme Court in the case of Bodhisattva Gautama v. Subhra

Chakraborty[20] observed that the court also has the right to award
interim compensation when trying offences of rape instead of
awarding compensation at the final stage. The accused can also be
ordered to pay Rs. 1000/- as interim compensation to the victims
along with the arrears of the compensation from the date of
complaint.