The Victim under the | BNSS 2023

The Victim under the BNSS, 2023: Definition in Section 2(1)(y), Rights at Every Stage, Compensation, the Right to be Heard and the Right of Appeal

For most of the history of Indian criminal procedure the victim had no place in it. A prosecution was a contest between the State and the accused, and the person injured appeared, if at all, as a witness. The Code of Criminal Procedure, 1973 as enacted did not define the word victim and conferred no entitlement on him. That changed by amendment in 2009 and again in 2013, and the Bharatiya Nagarik Suraksha Sanhita, 2023 carries the movement considerably further. The name of the statute reflects it: a code for the protection of the citizen.

What has not changed is the ownership of the prosecution. It remains the State’s. The victim participates in it and is now entitled to be informed, consulted and heard at defined points, and to compensation and an appeal. He does not control the prosecution, cannot withdraw it, and cannot compel the State to conduct it in a particular way. The rights are participatory, not proprietary, and reading them as more than that is the commonest error in this area.

Figure 1: How the victim entered Indian criminal procedure

1. The Definition

Section 2(1)(y), BNSS 2023

“Victim” means a person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim.

The definition is carried forward without change from clause (wa) of section 2 of the Code of Criminal Procedure, which was inserted by Act 5 of 2009. Its terms repay close attention because each limb has been the subject of argument.

Element	What it means
“any loss or injury”	Not confined to physical injury. Financial loss, loss of property and mental injury are covered, and the word “any” is deliberately wide
“caused by reason of”	Requires a causal connection between the loss and the act or omission, but not that the victim be the direct object of the offence
“the act or omission of the accused person”	The reference is to the act charged. A person who has suffered by reason of something other than the conduct alleged against the accused is not a victim within the definition
“includes the guardian or legal heir”	An inclusive extension. Where the victim is a child or is under disability, the guardian steps in; where the victim has died, the legal heir does. This is what makes the right of appeal workable in a homicide case
A victim need not be the complainant or the informant	The three roles are distinct. The informant may be a stranger, the complainant may be anyone, and the victim is identified by the loss suffered

2. The Victim’s Entitlements Stage by Stage

Figure 2: The entitlements mapped across the life of a case

2.1 At the start of the case

Section 173(1). Information about a cognizable offence may be given at any police station irrespective of the area in which the offence was committed, and by electronic communication. The device commonly called the Zero FIR now has a statutory foundation, and the practical obstacle of a refusal on grounds of jurisdiction is removed by the text of the section.
Section 173(2). A copy of the information as recorded is to be given free of cost to the informant or the victim. Section 154(2) of the CrPC required a copy only for the informant, so where the informant was a third party the victim had no entitlement to it.
Section 173(4). Where an officer in charge refuses to record the information, the substance may be sent in writing and by post to the Superintendent of Police, who if satisfied that the information discloses a cognizable offence shall either investigate the case himself or direct an investigation.

2.2 During the investigation

Section 176(1), proviso. Where the information relates to specified sexual offences, the statement of the victim is to be recorded by a woman police officer, and in the case of a victim who is temporarily or permanently mentally or physically disabled the statement is to be recorded at a place of the victim’s choice in the presence of an interpreter or special educator, with the recording videographed.
Section 183(6). The statement of a victim of specified offences is to be recorded by a Judicial Magistrate, and the section permits recording by any audio-video electronic means including a mobile phone. The provision gives the victim’s account a judicial record early and reduces the pressure that later retraction represents.
Section 184. The medical examination of a victim of rape is to be conducted by a registered medical practitioner with the consent of the victim, and the report is to be forwarded to the investigating officer within seven days.
Section 193(3)(ii). The police officer must inform the informant or the victim of the progress of the investigation, including by electronic communication, within ninety days. This duty has no counterpart in the CrPC and is the clearest statement in the Sanhita that the victim has a standing interest in the investigation rather than a merely evidentiary one.

2.3 Before and during the trial

Section 230. Copies of the police report, the first information report, the statements and confessions recorded and the other documents on which the prosecution relies are to be supplied to the victim as well as to the accused, within fourteen days of the production or appearance of the accused. Section 207 of the CrPC required supply only to the accused.
Section 360. The Public Prosecutor may withdraw from the prosecution only with the consent of the court, and the Sanhita adds that the court shall, before according consent, give an opportunity to the victim to be heard. A prosecution may therefore no longer be dropped over the victim’s head.
Section 483. In the offences the section specifies, the High Court or the Court of Session shall, before granting bail, give notice to the Public Prosecutor and an opportunity to the victim to be heard.
Section 398. Every State Government is required to prepare and notify a witness protection scheme, which protects the victim in his capacity as a witness.
Section 18(8) and the assistance of an advocate. The court may permit the victim to engage an advocate of his choice to assist the prosecution, the advocate acting under the direction of the Public Prosecutor. The entitlement, introduced by the 2009 amendment, is carried into the Sanhita.

📖 Jagjeet Singh v. Ashish Mishra alias Monu, (2022) 9 SCC 321

Facts: Bail was granted to the accused in a case involving multiple deaths, and the victims’ families challenged the order on the ground that they had not been given an opportunity of being heard and that the High Court had not considered the material relevant to bail. The question was the extent of the victim’s right of participation at the bail stage.

Held: The Supreme Court held that a victim, as defined in the Code, has an unbridled participatory right at every stage of a criminal proceeding, including the stage of bail, and that the right is not restricted to offences under special statutes containing express provisions. The Court traced the statutory scheme introduced by the 2009 amendment, held that the victim must be heard in a proceeding involving a serious offence where bail is under consideration, and set aside the bail order for failure to consider relevant material and to hear the victims.

Ratio: The victim’s right of participation extends to the bail stage, and an order passed without hearing him where the offence is serious is liable to be set aside. Participation is a right under the general law and not merely a concession under particular statutes.

2.4 After the judgment

Provision	Entitlement
Section 395	When a court imposes a sentence of fine, or a sentence of which fine forms a part, it may order the whole or any part of the fine recovered to be applied in payment of compensation for loss or injury caused by the offence. The court may also order compensation where no fine is imposed
Section 396	Every State Government, in coordination with the Central Government, shall prepare a victim compensation scheme for those who have suffered loss or injury and require rehabilitation. Where the trial court is satisfied that the compensation under section 395 is not adequate, or where the case ends in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation
Section 397	All hospitals, public or private and whether run by the Government, a local body or any other person, shall immediately provide free first aid or medical treatment to victims of the specified offences and shall immediately inform the police
Section 398	The State witness protection scheme
Section 413, proviso	The victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused, convicting for a lesser offence, or imposing inadequate compensation. The appeal lies to the court to which an appeal ordinarily lies against an order of conviction of that court

📖 Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752

Facts: A victim sought to appeal against an acquittal under the proviso to section 372 of the Code of Criminal Procedure, 1973, inserted by the amendment of 2009. The High Court required the victim to obtain leave to appeal as though the appeal were one against acquittal under section 378. The question was whether the proviso confers an independent right of appeal and whether leave is required.

Held: The Supreme Court held that the proviso to section 372 confers on the victim a substantive and independent right of appeal against an order of acquittal, against conviction for a lesser offence and against the award of inadequate compensation, and that the victim is not required to obtain leave to appeal, the requirement of leave applying to an appeal by the State. The Court traced the statutory recognition of victims’ rights and emphasised that the provision should be given a purposive construction so as to advance the object of the amendment.

Ratio: The victim’s right of appeal is independent and substantive, not derivative of the State’s right, and it is exercisable without leave. The three grounds are acquittal, conviction for a lesser offence and inadequate compensation.

3. What the Sanhita Added

Entitlement	Under the CrPC, 1973	Under the BNSS, 2023
Definition of victim	Section 2(wa), inserted in 2009	Section 2(1)(y), retained in the same words as a regular clause
Copy of the first information	Section 154(2), to the informant only	Section 173(2), to the informant or the victim, free of cost
Registration irrespective of jurisdiction	Administrative practice and judicial direction	Section 173(1), a statutory entitlement
Information about the progress of the investigation	No provision	Section 193(3)(ii), within ninety days
Supply of the police report and documents	Section 207, to the accused only	Section 230, to the accused and the victim, within fourteen days
Hearing before withdrawal from prosecution	Section 321 required the consent of the court but not a hearing of the victim	Section 360 requires an opportunity to the victim to be heard
Hearing on bail	Developed through case law and through special statutes	Section 483 requires notice and an opportunity in the specified offences
Witness protection	No statute; the Witness Protection Scheme, 2018 given the force of law by the Supreme Court	Section 398 requires every State Government to prepare and notify a scheme
Compensation	Sections 357 and 357A	Sections 395 and 396, the scheme now to be prepared in coordination with the Central Government
Medical treatment	Sections 357B and 357C	Section 397, consolidated
Right of appeal	Proviso to section 372, inserted in 2009	Proviso to section 413

4. The Limits of the Victim’s Role

⚠ Four things the victim cannot do

He cannot conduct the prosecution. The Public Prosecutor conducts it. An advocate engaged by the victim assists, under the direction of the Public Prosecutor, and with the permission of the court.

He cannot withdraw the prosecution. Withdrawal under section 360 is by the Public Prosecutor with the consent of the court. The victim’s entitlement is to be heard before consent is given, not to decide the question. In a summons case instituted on a complaint the complainant may withdraw the complaint under section 280, but that is a right of the complainant and not of the victim as such.

He cannot compel a particular investigation. The manner of an investigation is the province of the police. The victim may seek a direction under section 175(3), may approach the Superintendent of Police under section 173(4), and must be heard before a closure report is accepted, but he cannot direct how the investigation is carried out.

He cannot compound an offence that the law does not permit to be compounded. Compounding is governed by section 359, which lists the offences and the persons competent to compound, and requires the permission of the court in the cases specified.

There is a further limit that is structural rather than textual. Nearly every entitlement in the list is a right to be informed or to be heard, and none of them carries an express consequence for breach. The Sanhita does not say what follows if the ninety-day information under section 193(3)(ii) is not given, or if documents are not supplied to the victim under section 230. The consequence in such a case is likely to be governed by Chapter XXXVII and section 511, under which a departure vitiates a proceeding only where a failure of justice has in fact been occasioned. The one clear exception is the bail stage, where an order passed without hearing the victim in a serious case has been set aside.

5. Victim, Complainant and Informant

	Victim	Complainant	Informant
Source	Section 2(1)(y)	Section 2(1)(h), by implication from “complaint”	Not defined; the person who gives information under section 173
Identified by	The loss or injury suffered	The making of an allegation to a Magistrate	The giving of information to the police
Need they be the same person	No. All three roles may be held by different people in one case	No	No
Principal entitlements	Copy of the information, progress in ninety days, documents, hearing on withdrawal and bail, compensation, appeal	Examination on oath, the right to be heard on dismissal, withdrawal of the complaint in a summons case	A free copy of the information, notice before a closure report is accepted
Where the roles overlap	A victim who lodges the FIR is also the informant, and a victim who moves the Magistrate is also the complainant; the entitlements then accumulate

6. Key Takeaways

The position stated shortly

1. A victim under section 2(1)(y) is a person who has suffered any loss or injury caused by reason of the act or omission of the accused, and includes the guardian or legal heir of such victim.

2. The loss need not be physical, and the victim need not be the informant or the complainant.

3. At the start: information may be given at any police station under section 173(1), and a free copy goes to the informant or victim under section 173(2).

4. During the investigation: sections 176(1) and 183(6) protect the recording of the victim’s statement, section 184 requires the medical report within seven days, and section 193(3)(ii) requires the progress of the investigation to be communicated within ninety days.

5. Before and during trial: documents under section 230, a hearing before withdrawal under section 360, a hearing on bail under section 483, and protection under the scheme required by section 398.

6. The victim has an unbridled participatory right at every stage, including bail, and an order passed without hearing him in a serious case may be set aside: Jagjeet Singh.

7. After judgment: compensation under sections 395 and 396, free medical treatment under section 397, and a right of appeal under the proviso to section 413.

8. The right of appeal is substantive and independent and requires no leave; the grounds are acquittal, conviction for a lesser offence and inadequate compensation: Mallikarjun Kodagali.

9. The prosecution remains the State’s. The victim participates; he cannot conduct, withdraw or direct it.

7. 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 of the accused person, including the guardian or legal heir of such victim, under section 2(1)(y). The loss need not be physical.

Does the victim have a right to be informed about the investigation?

Yes. Section 193(3)(ii) requires the police officer to inform the informant or victim of the progress of the investigation, including by electronic communication, within ninety days. There was no such duty under the CrPC.

Can the victim be heard when the accused applies for bail?

Yes. Section 483 requires notice to the Public Prosecutor and an opportunity to the victim in the offences it specifies, and the Supreme Court held in Jagjeet Singh that the victim has a participatory right at the bail stage generally in serious cases.

Can a victim appeal against an acquittal?

Yes, under the proviso to section 413, and no leave to appeal is required. The right also covers a conviction for a lesser offence and the award of inadequate compensation, and it was held in Mallikarjun Kodagali to be substantive and independent of the State’s right of appeal.

Can the victim stop the prosecution from being withdrawn?

He cannot stop it, but he must be heard. Section 360 requires the court, before consenting to withdrawal by the Public Prosecutor, to give the victim an opportunity of being heard. The decision remains that of the court.

Is the victim entitled to a copy of the charge sheet?

Yes. Section 230 requires the police report and the accompanying documents to be supplied to the victim as well as to the accused, within fourteen days of the production or appearance of the accused. Section 207 of the CrPC required supply only to the accused.

Related Topics

Complaint, FIR and Police Report: The Distinction
Inquiry, Investigation and Trial: Meaning and Distinction
Compensation to Victims: Sections 395 and 396, BNSS
Witness Protection under Section 398, BNSS
Appeals under the BNSS, 2023: Chapter XXXI
Important Definitions under Section 2 of the BNSS, 2023