The Missing Piece in India’s New Criminal Procedure Code
When India transitioned from the old colonial-era Code of Criminal Procedure (CrPC) to the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), lawmakers promised a major shift. The official narrative claimed that criminal procedure was moving away from focusing solely on the accused and finally giving equal weight to the rights of crime victims. Provisions like Section 360 of the BNSS—which mandates that courts must hear victims before allowing the withdrawal of a prosecution—are often cited as proof of this change.
However, legal experts point out that this reform stops short right where it matters the most: the sentencing stage. While courts patiently listen to convicts talk about their age, family background, and chances of reform, victims still lack a formal channel to explain the real human cost of the crime.
What The Law Says: Trial Testimony vs. Sentencing
To understand why this gap matters, it helps to look at how Indian criminal law treats different stages of a trial. Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), testimony given during a trial is strictly meant to prove whether the accused is guilty beyond a reasonable doubt. It is not the right time for a victim to explain how the crime ruined their life, as such emotional accounts are irrelevant to proving guilt and could prejudice a fair trial.
Instead, a Victim Impact Assessment (VIA) or Victim Impact Statement (VIS) operates entirely in the post-conviction phase. It does not ask whether the crime happened; it asks what the crime actually did to the victim’s physical, emotional, and financial well-being. Under Section 258(2) and Section 271 of the BNSS (mirroring the old Section 235(2) of the CrPC), courts are statutorily bound to hear the accused on the question of sentence. But no matching provision forces the court to examine the ongoing suffering of the victim.
What Indian Courts Have Tried to Fix
Because Parliament left this blank space in the law, Indian courts have spent the last decade trying to plug the leak through judicial orders. In landmark cases like Ankush Shivaji Gaikwad v. State of Maharashtra (2013), the Supreme Court ruled that ignoring victim compensation is a direct failure of statutory duty. Later, in Mallikarjun Kodagali v. State of Karnataka (2019), the Court recognized victims as independent stakeholders rather than mere witnesses.
More recently, in Karan v. State (NCT of Delhi) (2020), the Delhi High Court ordered the preparation of a ‘Victim Impact Report’ in every criminal case after conviction to assess both the victim’s suffering and the convict’s paying capacity. While helpful, these judicial fixes apply unevenly across different states and focus mostly on financial compensation rather than directly influencing the length or nature of the prison sentence.
Why This Matters For You
Other common-law nations like the United States, the United Kingdom, and Australia routinely use victim statements during sentencing to ensure punishments match the actual harm caused. Without a clear national law in India, victims risk remaining invisible spectators in their own search for justice.
Experts suggest that adding a mandatory Victim Impact Assessment into the BNSS—handled independently by district legal authorities and balanced with fair defense safeguards under Article 21 of the Constitution—would fix this flaw. It would ensure that judges weigh not just what the offender did, but what the offence truly cost.
Story reported by Supreme Court – High Court – Legal Breaking News | Live Law India. This article is BareLaw’s independent explanation and analysis.
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