The Rights of the Victim under the | BNSS 2023

The Rights of the Victim under the BNSS, 2023: From the First Report to the Appeal, and the Shift from Witness to Participant

Under the Code of Criminal Procedure the victim figured chiefly as a source of evidence — a witness whose account the prosecution required, and whose interest in the outcome the process barely acknowledged. He had no right to be informed of the progress of the investigation, was not supplied with the documents furnished to the accused, and had no right to be heard when the prosecution was withdrawn.

The Sanhita treats him as a participant with a right to know what is being done in his name. This topic gathers the provisions, which are scattered across the statute, and sets out what the shift does — and, equally important, what it does not do.

1. The Rights, Stage by Stage

Figure 1: The victim through the proceeding

Section 2(1)(y) defines a victim as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused has been charged, and includes his guardian or legal heir — so the rights survive the victim, and may be exercised by those he left behind.

1.1 At the first report

Section 173(1): information may be given irrespective of the area and by electronic communication, and a copy of the information as recorded shall be given forthwith, free of cost, to the informant or the victim.
Proviso to section 173(1): for the specified sexual offences the information shall be recorded by a woman police officer, and where the informant is temporarily or permanently disabled, at her residence, in the presence of an interpreter or special educator, and videographed.

1.2 During the investigation

Section 183(6): her statement recorded by a Judicial Magistrate as soon as the offence is brought to the notice of the police — and where she is temporarily or permanently mentally or physically disabled, videographed and treated as a statement in lieu of examination-in-chief, so that she need not narrate the offence a second time.
Section 184: the medical examination conducted with her consent, the report forwarded to the investigating officer and then to the Magistrate within seven days.
Section 193(3): the progress of the investigation communicated within ninety days; and the closure communicated, so that a protest petition may be filed.

1.3 During the trial

Section 230: copies of the police report and the accompanying documents supplied to the victim within fourteen days.
Proviso to section 18(8): the victim may engage an advocate to assist the prosecution.
Section 291: he participates in a plea-bargaining disposition. Section 360: he must be heard before the Court consents to a withdrawal from prosecution.
Section 366(2): the trial of the specified sexual offences in camera, as far as practicable before a woman Judge or Magistrate.

1.4 At and after the judgment

Section 395: compensation, to which the Court must apply its mind in every case, recording reasons if none is awarded.
Section 396: the victim compensation scheme, under which compensation may be awarded whether or not the offender is traced or identified.
Section 404: a copy of the judgment, free of cost. Proviso to section 413: a right of appeal, without leave, against an acquittal, a conviction for a lesser offence, or inadequate compensation.

📖 Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14

Facts: The Court was moved on behalf of women who had been sexually assaulted, and who had found the criminal process, from the police station onwards, to be an ordeal in itself. The Court considered what the State owes to a complainant in such a case.

Held: The Supreme Court held that a victim of a sexual offence requires assistance from the moment of the complaint, and laid down what should be provided. It held that the complainant should be given legal representation, that a lawyer’s role is not confined to the court but extends to explaining the process and assisting her in the police station, and that she should be informed of her entitlement to legal assistance before any questioning begins. The Court held that a list of advocates willing to act should be maintained at every police station; that legal assistance should be provided at the State’s expense; that the anonymity of the complainant should be maintained throughout; and that compensation should be available to her irrespective of whether a conviction results, since her needs do not depend on the outcome of the prosecution. It emphasised that the criminal process should not itself become a second ordeal for the person it exists to protect.

Ratio: A victim of a sexual offence requires assistance from the moment of complaint — legal representation extending to the police station, notice of that entitlement before questioning, anonymity throughout, and compensation irrespective of conviction.

📖 Laxmi v. Union of India, (2014) 4 SCC 427

Facts: Following a series of acid attacks, the Court considered the position of the survivors — who required prolonged and expensive treatment, were frequently unable to work, and found the compensation available to them wholly inadequate to their needs.

Held: The Supreme Court held that where an offence leaves the victim requiring immediate and continuing medical treatment, a compensation regime which operates only at the end of the trial is of little use to her. It directed that treatment be provided without delay, that no hospital or clinic refuse treatment on the ground that it lacks facilities or that the case is a medico-legal one, and that the full cost of treatment including reconstructive surgery be borne by the State. It held that the State’s obligation arises from Article 21, and is not contingent on the identification or conviction of the offender; and directed that a minimum compensation be fixed and paid, part of it within a short period of the incident, so that the survivor is not left to fund her own treatment while the prosecution runs its course. The Court emphasised that rehabilitation, and not merely compensation after the event, is what such a victim requires.

Ratio: Where an offence leaves the victim requiring immediate and continuing treatment, compensation available only at the end of the trial is of little use. The State’s obligation arises from Article 21 and is not contingent on the offender being identified or convicted.

2. The Shift, and Its Limits

Figure 2: From witness to participant

⚠ What the shift does not do

It does not make the victim a prosecutor. The prosecution remains in the hands of the Public Prosecutor, and an advocate engaged by the victim under the proviso to section 18(8) assists him — he does not conduct the case, examine witnesses as of right, or address the Court without permission.

It does not give the victim a veto. He is heard on a withdrawal from prosecution under section 360; the decision remains the Court’s, and it is taken on whether the withdrawal advances or thwarts the ends of justice.

It does not alter the standard of proof. The prosecution must still prove its case beyond reasonable doubt, and the presumption of innocence is untouched by anything in these provisions.

And it does not make the victim’s satisfaction the measure of the outcome. A settlement between him and the accused does not end a prosecution in an offence which is not compoundable, and his consent is not what the criminal law is administered for.

3. Key Takeaways

The position stated shortly

1. Section 2(1)(y) defines a victim as one who has suffered loss or injury by reason of the act charged, and includes his guardian or legal heir — so the rights survive him.

2. At the first report: a free copy of the information; and for the specified sexual offences, recording by a woman police officer, at her residence where she is disabled, and videographed.

3. During the investigation: a statement before a Judicial Magistrate in lieu of examination-in-chief; medical examination with consent, the report within seven days; and the progress within ninety days, with the closure communicated.

4. During the trial: the documents within fourteen days; an advocate to assist the prosecution; participation in plea bargaining; a hearing before withdrawal; and an in-camera trial in sexual offences.

5. At and after judgment: compensation, to which the Court must apply its mind in every case; the victim compensation scheme, operating whether or not the offender is traced; a free copy of the judgment; and an appeal without leave.

6. A victim of a sexual offence requires assistance from the moment of complaint — legal representation extending to the police station, notice of that entitlement before questioning, and anonymity throughout: Delhi Domestic Working Women’s Forum.

7. Compensation available only at the end of the trial is of little use where the victim needs immediate treatment; the State’s obligation arises from Article 21 and is not contingent on conviction: Laxmi.

8. The shift does not make the victim a prosecutor: his advocate assists the Public Prosecutor.

9. It does not give him a veto: he is heard on a withdrawal, but the decision is the Court’s.

10. And it does not alter the standard of proof or the presumption of innocence.

4. Frequently Asked Questions

Who is a victim under the BNSS?

A person who has suffered any loss or injury caused by reason of the act or omission for which the accused has been charged, including his guardian or legal heir. The rights therefore survive the victim and may be exercised by those he left behind.

What is the victim entitled to during the investigation?

A free copy of the FIR; where the offence is a specified sexual offence, recording of her statement by a woman police officer and before a Judicial Magistrate — that record standing in lieu of examination-in-chief where she is disabled; a medical examination with her consent; the progress of the investigation within ninety days; and intimation of its closure.

Can a victim engage his own lawyer?

Yes, under the proviso to section 18(8) — but to assist the prosecution. The case remains in the hands of the Public Prosecutor, and the victim’s advocate does not conduct it or address the Court without permission.

Can a victim appeal an acquittal?

Yes, under the proviso to section 413, and without leave — unlike a complainant under section 419, who requires the special leave of the High Court. He may also appeal a conviction for a lesser offence, or the imposition of inadequate compensation.

Is compensation dependent on a conviction?

No. Under section 396 compensation may be awarded whether or not the offender is traced or identified, and the State’s obligation to a victim requiring immediate treatment arises from Article 21 independently of the prosecution: Laxmi v. Union of India.

Does the victim have a veto on withdrawal of the prosecution?

No. Section 360 requires that he be given an opportunity of being heard before the Court consents, but the decision remains the Court’s, taken on whether the withdrawal advances or thwarts the ends of justice.

Related Topics

The Victim under the BNSS, 2023
The Victim’s Right to Receive Investigation Updates
Compensation to Victims under the BNSS, 2023
In-Camera Trials and Proceedings in Sexual Offences
Rights of Women under the BNSS, 2023
Withdrawal of Prosecution by the Public Prosecutor: Section 360