By Neha Choudhary
Introduction
Nowadays, there are a lot of instances that have been observed of wrongful prosecution and various concerned columns have been talking about the suggestions and reports proposed by the Law Commission of India in this matter.
Prosecuting an innocent one has been becoming quite a common process when people have been wrongfully convicted including prolonged incarceration of them.
This practice has been at its peak when as it includes acts that are contrary to what the law suggests, that is, wrongfully confining or intentionally committing a person under trial. The misconduct and the act of wrongful trial of innocent and uninvolved people put them to suffer the arrest, confinement, conviction which is wrongful.
Thus, behind every wrongful prosecution failure of the judicial machinery and police mechanism might be a possible reason although certain remedies are also available as such prosecution is a clear disregard of procedural rules, tampering of evidence, coerced confession by officials, abuse of powers, etc.
Thus, the executive body of the Law Commission of India to work for legal reforms has made various suggestions and recommendations in various fields of law and had also submitted a report regarding concerns for wrongful prosecution as a miscarriage of justice with consultation with the concerned administrative Ministries.
Hence, this article deals with the understanding of the Law Commission report on Wrongful prosecution.
What is wrongful prosecution?
Wrongful prosecution is an activity that takes place with malafide intention when a person is being falsely prosecuted on baseless claims and unjustifiable or erroneous information by the informant to engage the other person in legal proceedings despite his innocence.
The unjust situation of wrongful prosecution and the trial due to which the innocent person suffers have been given certain remedies and rights to overturn the conviction in case his loyalty is proved however it includes certain limitations to such countermeasures as well.
The legal provisions have been made available to the accusing parties in case a person uses judicial ways with malafide purpose to wrongfully incarcerate the accused.
The legal provisions are thus designed to avail justice and protect the rights of the people especially when the rights of an innocent one infringes.
There have been numerous cases of wrongful prosecution and improper imprisonment, even after the applicability of Article 21 of the Constitution of India, which states:
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”
The judgment of the honorable court in the case of Hussainara Khatoon Vs Home Secretary, State of Bihar[1] which held that:
“No procedure which does not guarantee a necessarily speedy and fair preliminary or trial can be viewed as ‘reasonable, just and fair’ and it would fall foul of Article 21.”
In the case of Ayodhya Dube & Ors. Vs Ram Sumar Singh,[2] it was held that:
“Lack of judicial approach, non-application of mind, non-consideration, or improper consideration of material evidence inconsistencies with faulty reasoning such that amounts to perversity amount to a grave miscarriage of justice. In other words, Miscarriage of justice refers to wrongful or malicious prosecution, regardless of whether it leads to conviction or detention.”
Moreover, there are certain remedies available to the party against whom the false charges have been made without legitimate evidence.
These legal remedies have been provided if a person is a victim of wrongful prosecution and their reputation has been marred due to this offense. The person can reinforce these remedies in case the prosecution is in favor of the accused, though he had to prove the deceitful intentions of the opposite party.
For example: – In a recent case of Ali Mohammad Bhat, a carpet weaver from Kashmir who had been wrongfully prosecuted and imprisoned for 23 years and thus he was awarded Rs. 23 lakhs by the state.[3]
In another case where Ram Lakhan Singh, the accused was given Rs. 10 Lakhs as he was wrongfully prosecuted and detained for 11 days in Jail and for pursuing the case for 10 years.
However, there is an example of a case where Gopal Shete was wrongfully convicted under the charge of rape and was released after 7 years of imprisonment with no compensations provided to him and thus leading a miserable lifestyle due to false prosecution.[4]
However, the accused cannot pray for relief until the proceedings in the matter have concluded. The aggrieved party can sue the person with malafide intentions and can recover monetary compensations rather of the case being criminal or civil.
In civil cases, the compensation can be made for waste of time, missed hours of work, or lawyer’s fees.
Remedies for Wrongful Prosecution
Each and every time when there is any case of wrongful prosecution, there has to have certain remedies which would safeguard the innocent/victim.
The precedents and statutes provide three kinds of Court-based remedies against wrongful convictions. These are:-
- Public law remedy
This remedy is provided to the accused person for the infringement of the fundamental rights and thus the victim can invoke writ jurisdiction and directly approach the Supreme Court under Article 32 as has been declared in the case of Sebastian M. Hongray Vs Union of India & Ors[5] and to the High Court under Article 226 of the Constitution.
The victim thus acquitted can ask for relief in the form of compensation for his suffering due to conviction and trial.
- Private law remedy
This remedy provides the victim to file a civil suit for compensation against the State for the state’s vicarious liability.
- Criminal law remedy
The victim who suffered due to wrongful prosecution can request the government to take actions provided by the provisions in the Indian Penal Code (IPC) and Crpc against the concerned authority.
Section 211 of the Indian Penal Code prescribes the punishment for false criminal procedures, erroneously or maliciously charging an individual under a false charge.
Moreover, the statute has provided certain provisions and laid down offenses related to malicious prosecution and investigation. The Indian penal code in chapter IX and XI lays down these offenses i.e. Section 166 of IPC prescribes punishment in case if, “The public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person” whereas, Section 167 of IPC “Deals with the liability of a public servant for framing or translating an incorrect document with intent to cause injury.”
In addition, Section 219 deals with the “public servant in judicial proceeding corruptly making report, etc., contrary to law” and Section 220 prescribes punishment for malicious commitment for trial or confinement of any person.
The IPC also provided other sections as well for malicious prosecution which even includes 44 sections for the offenses related to fabricating false evidence i.e. Section 191 to 200.
Law Commission Report
On August 30, 2018, report No. 277 on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ was submitted by the Law Commission of India (Chair: Justice B.S. Chauhan).
The report was submitted by the Law Commission of India in reference to the increased cases of issuance of wrongful prosecution of innocent people and the remedies available for them.
The Supreme Court in various cases has identifies the need for remedies for compensation and damages from the state in case of wrongful prosecution.
In the landmark cases of Rudul Sah Vs State of Bihar And Another.[6] and Dr. Rini Johar & Anr. Vs State of M.P. & Ors.,[7]
“The Supreme Court has observed the necessity for redressal machinery. However, this has not only been observed by the Supreme Court but also the High Courts as many people have suffered due to the lack of proper investigation and harm has been caused to them in various ways and thus deserve compensation.” In this case, the accused was awarded Rs. 30,000 as compensation for wrongful prosecution and detention for 14 years.
However, the report followed a Delhi High Court ruling in 2016 where the court asked Commission to provide the remedies for wrongful detention and prosecution.
The Delhi high court in the case of Babloo Chauhan @ Dabloo Vs State Government of NCT Delhi[8] expressed the need for a legislative framework for actions and remedies for those who have been victims of wrongful incarcerations.
The high court issued an urge for a comprehensive examination for “relief and rehabilitation to victims of wrongful prosecution, and incarceration” noting that India lacks in providing a statutory or legal scheme for compensating the victims of wrongful incarceration.
This has been noted as the case of wrongful prosecutions and the victims after many years of imprisonment are left with no hope to be accepted in the society or rehabilitation as they have spent the productive years of their life behind bars.
The law commission of India in its report states that:
“An effective response from the State to the victims of a miscarriage of justice resulting in wrongful prosecutions is lacking in the criminal justice system in the country, as it stands today. Also, there is no statutory or legal scheme articulating State’s response on the issue. Therefore, the Court directed the Law Commission to undertake a comprehensive examination of the issue and make its recommendations to the Government of India.”
Data and Analysis
The law commission report on wrongful prosecution has also provided with certain analysis with respect to prisons, prisoners, and prison infrastructure called “Prison Statistics India” (PSI).
The report states the approximate data and percentage of prisoners i.e. there were 4, 19,623 prisoners across the country out of which, 67.2% i.e. 2, 82,076 were undertrials.
This was also reviewed that the under-trial population was higher than the convict population and it can be understood through the analysis that the innocent who has been wrongfully prosecuted must have suffered due to the trail process.
The miscarriage of justice and the data which shows the period of incarceration has to be taken into consideration here i.e. 21.9% of the undertrials were imprisoned for 3 to 6 months, 35.2% out of the total spent up to 3 months in prison, 25.1% of the undertrials spent more than 1 year in prison and 17.8% undertrials were in jail for up to 1 year.
However, this percentage has tended to increase every year.
The delay with the judicial machinery and waiting for justice in case the person has been wrongfully prosecuted with malafide intentions is a miscarriage of justice.
The delay in justice and imprisonment of the innocent would harm him physically as well as mentally as the reputation of the person wrongfully accused would be at stake.
A similar has been held in the case of Hardeep Singh Vs State of Madhya Pradesh,[9] where the Court dealt with the humiliation and suffering the victim must have gone through and compensated the victim with the Rs. 70,000.
Moreover, the exact percentage has not been highlighted in the report but the heightened cases and the percentage of undertrials as to convictions have emerged the need and the urgency for a remedial framework under concerned statutes to provide compensation to these victims of the system.
International Perspective
The International Covenant on Civil and Political Rights (‘ICCPR’, ratified by India) creates accountability on the State to provide provisions and remedies to compensate the victims of a miscarriage of justice.
The ‘miscarriage of justice’ is defined as the issue of wrongful prosecution, incarceration, and conviction of a person who is later found to be innocent after investigation.
Countries such as the UK, USA, Canada, New Zealand, Australia, etc. have certain legislations under the obligations of such covenants for providing compensation and other reliefs to victims of wrongful prosecution.
Article 14(6) of ICCPR states:
“When a person has by a final decision been convicted of a criminal offense and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
Article 14(6) of the International Covenant on Civil and Political Rights, 1966 provides the state with an obligation to safeguard the citizen from wrongful prosecution and miscarriage of justice. It also states that in case the person is wrongfully prosecuted, the person shall have to be compensated.
Recommendations in the Law Commission Report
Due to increased cases of wrongful prosecution and conviction, the Law Commission in its report has recommended certain enactment and provisions to provide incentives, redressal, and remedies to the victims of wrongful prosecution within a statutory framework in terms of monetary and non-monetary compensation (such as counseling, mental health services, vocational / employment skills development, etc.).
It further highlighted the non-monetary compensation and recommends that provisions should be included to remove disqualifications. These include disqualifications regarding employment or getting admission to educational institutions.
An overview of the key recommendations of the Commission and the remedies that shall be available to the victims are:
- Legal framework
The Commission recommended in its report, the necessary amendments in the Code of Criminal Procedure, 1973 to provide compensation to the victim of wrongful prosecution in the cases of miscarriage of justice resulting in wrongful prosecution of persons.
Miscarriage of justice has been explicitly mentioned in the report as wrongful or malicious prosecution regardless of conviction or detention and thus report recommends speedy remedy for it.
- Cause of action
The report recommends that the cause of action or reason for the claimant must be a case of the wrong prosecution only when the accused has been acquitted from that proceeding.
The Wrongful prosecution would firstly include malicious prosecution, that is, when the person files a complaint against the accused without having evidence or proof that the crime has been committed by the accused.
It is filed without belief and guilt of the crime and secondly the prosecution without bonafide intentions, that is, when the person files a case against the accused without due care and attention and had some intentions which are discordant to what law provides.
- Special Courts
The law Commission report suggested setting up the special courts in each district to provide redressal to the aggrieved party in lesser time and for deciding compensation amount.
This proposition has been made with the aim that each individual who had suffered due to wrongful prosecution or detention should be provided with fair and just remedy and the claims concerning wrongful compensation should be settled speedily.
- Compensation
It is difficult for any authority to fix an amount for compensation when other factors are involved and are necessary to be taken under consideration according to the crime committed. The Commission observed in its report that it may not be possible to lay down a fixed amount of monetary compensation to be paid.
Certain guiding principles, that is, the gravity of the offense, severity of punishment, length of detention, damage to health, harm to reputation, and loss of opportunities are recommended by the commission to include via an amendment to the Crpc and thus the court would decide the amount of compensation in each case wrongful act.
Who can apply?
The commission in its report states that a compensation claim can be filed by the victim or upon his death his authorized agent, his heirs, or legal representatives of wrongful prosecution in case of any harm caused to the victim’s body, mind, reputation, or property. Such a claim can be filed by the accused person.
- Nature of proceedings
The victim of the wrongful conviction needs to prove if such misconduct of wrongful prosecution has taken place. Moreover, for speedier disposal of the case, the proceedings in the special court will follow summary procedures.
However, the case shall be decided in favor of the person whose claim is more probable to be true, that is, “balance of probabilities”.
Moreover, the Special Court shall allow the aggrieved party to be heard, inquire about the claim, and make an amount determining the compensation.
Moreover, there have been seen certain developments in the legal system after the recommendations for the remedies. After the report was submitted by the law commission of India, the Supreme Court in the recent case of Nambi Narayan Vs State of Kerala[10] decided on 14th September 2018 reaffirmed the remedies.
The victim was the ISRO scientist who was wrongfully accused of espionage after a long legal battle of 24 years and the court awarded the victim with the compensation of Rs 50 lakhs.
It further stated that the amount of the compensation will depend upon the facts and circumstances of each case and thus authorities responsible for the loss of the victim shall face the legal consequences for their illegal actions.
Conclusion
The cases of wrongful prosecution of innocent people have been increasing even after the protection has been guaranteed under Article 21 of the Constitution and various precedents. Due to the increased cases and necessity for protecting the accused from malafide intentions of the other party, the High Court has raised concerns and asked the Law Commission of India to issue certain remedies for safeguarding the claimant’s interest and compensations.
The Law Commission of India has submitted its report for wrongful prosecution as a miscarriage of justice and recommended certain remedies for the victims of such prosecutions in case they are acquitted from that case.
This has been done as such a criminal act of prosecuting innocent individuals who cause harm to their body, reputation, property, etc. which cannot be even traded with an amount of compensation.
References
- Hussainara Khatoon Vs. Home Secy, State of Bihar, 1979 SCR (3) 532 ↑
- Ayodhya Dube & Ors. Vs. Ram Sumar Singh, AIR 1981 SC 1415 ↑
- Shivangi Gangwar & Manan Parekh, “Victim Compensation For Wrongful Prosecution/Conviction-Indian Judiciary Yet To Evolve” available at- livelaw.in (last visited on July 10, 2021) ↑
- Dr. Kaleem Alam, “Wrongful detention or conviction: Victims’ compensation” available at- countercurrents.org (last visited on July 10, 2021) ↑
- Sebastian M. Hongray Vs. Union of India & Ors., (AIR 1984 SC 1026) ↑
- Rudul Sah Vs. State Of Bihar And Another, D. K., 1983 AIR 1086 ↑
- Dr. Rini Johar & Anr. Vs. State Of M.P.& Ors., WRIT PETITION (CRIMINAL) NO. 30 OF 2015 ↑
- Babloo Chauhan @ Dabloo Vs. State Government of NCT Delhi, 247 (2018) DLT 31 ↑
- Hardeep Singh Vs. State of Madhya Pradesh, CRIMINAL APPEAL NO. 2250 OF 2011 ↑
- Nambi Narayan Vs. State of Kerala, CIVIL APPEAL NOS. 6637-6638 of 2018 ↑