“Reparations for the wrongful prosecution shall be made; mere acquittals were not enough as there still lays an uphill battle even after acquittal”.

A person wrongfully prosecuted though acquitted and released from jail was free to go back to his life; but was it actually possible for him to go back to the same life – the life he had before being subjected to the ordeal of wrongful prosecution. There needed to be compensatory assistance by the State to help the innocent victims to adjust to the life-after, and to reintegrate into the society and we have Article 14(6) of the ICCPR read with the General Comment 32 of the United Nations Human Rights Committee to substantiate the same along with United Kingdom, the United States, and Germany where the State assumed statutory responsibility for compensating the said victims.

The Law Commission of India submitted its Report No. 277 titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ to the Government of India on 30th August, 2018. The High Court of Delhi in its order dated 30-05-2017 in the case of Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi, 247 (2018) DLT 31, expressed grave concern about the state of innocent persons being wrongfully prosecuted, incarcerated for crimes that they did not commit. The Court highlighted the urgent need for a legislative framework for provided relief and rehabilitation to victims of wrongful prosecution, incarceration and asked the Law Commission to undertake a comprehensive examination of the aforesaid issued and make a recommendation thereon to the Government of India.

Internationally, the issue of wrongful prosecution, incarceration, and conviction of innocent persons is identified as ‘miscarriage of justice’ that takes place after a person has been wrongfully convicted but is later found to be factually innocent basis a new fact / proof coming to light. The International Covenant on Civil and Political Rights (‘ICCPR’, ratified by India) also creates an obligation on the State parties to enact a law to compensate the victims of such miscarriage of justice.

This report looks at the issue from the context of Indian Criminal Justice system and recommends ‘wrongful prosecution’ to be the standards of miscarriage of justice, as against ‘wrongful conviction’ and ‘wrongful incarceration’. ‘Wrongful prosecution’ would include cases where the accused and not guilty of the offence, and the police and / or the prosecution engaged in some form of misconduct in investigating and / or prosecuting the person. It would include both the cases where the person spent time in prison as well as where he did not; and cases where the accused was found not guilty by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty by the Higher Court.

The Report gives an overview of the remedies available under the existing laws and discusses their inadequacies (also noted by the High Court in the aforementioned Order). The Commission, accordingly, recommends enactment of a specific legal provision for redressal of cases of wrongful prosecution – to provide relief to the victims of wrongful prosecution in terms of monetary and non-monetary compensation (such as counselling, mental health services, vocational / employment skills development etc.) within a statutory framework. The Report enumerates the core principles of the recommended framework- defining ‘wrongful prosecution’ i.e., cases in which claim for compensation can be filed, designation of a Special Court to decide these claims of compensation, nature of proceedings – timeline for deciding the claim, etc., financial and other factors to be considered while determining the compensation, provisions for interim compensation in certain cases, removal of disqualification on account of wrongful prosecution / conviction etc.

From the landmark cases of Rudal Sah, Nilabati Behera, D. K. to the 2016 case of Dr. Rini Johar, the Supreme Court has recognized the remedy of recovering appropriate damages from the State. This view has also been echoed by various High Courts over the years where the Court held that appellants, who were innocent and have suffered because of poor investigation and tainted prosecution, deserve compensation from the State. In this manner, the currently available remedies only create an ex gratia obligation, and not a statutory obligation on the State to compensate. There was a pressing need for an explicit law for compensating the victims who have suffered miscarriage of justice at hands of the State machinery – laying down State’s statutory obligation to re-compensate these victims of wrongful prosecution with a dedicated judicial mechanism. Where the State pays compensation for the errant acts of its officials, it can seek indemnification from the concerned officials, and also initiate appropriate proceedings against them in accordance with law.

Recommendations

To establish a legislative process which accords a transparent, uniform, efficacious, affordable and timely remedy for the loss and harm inflicted on the victims on account of wrongful prosecution.

The core principles underlining the recommended legal framework would be as follows:

1. Special Court: claims to be decided as speedily as possible in order to curb long prolonged prosecution. To designate special courts was in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice jurisdiction shall be made by the applicant, as follows:

(i) either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred; or

(ii) the Special Court within the local limits of whose jurisdiction the applicant resides.

2. Cause of Action: The ambit of wrongful prosecution? herein would include

(i) malicious prosecutions; and

(ii) prosecutions instituted without good faith.

3. Who can apply: The claim for compensation can be brought by the accused person so injured; or by any agent duly authorized by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.

4. Nature of Proceedings: Special Court for the purpose of inquiry and adjudication herein should follow summary procedures as may be prescribed. The standard of proof would be that of “balance of probabilities?, with the burden on the claimant (accused) to prove misconduct which lead to wrongful prosecution, and/or the misconduct during the prosecution which made it wrongful. The standard was the supposition of a prudent man who when faced with connecting probabilities or improbabilities would have came to the same conclusion. Include prescribed timelines for the disposal of the application, payment of compensation, period of limitation for filing the and for filing an appeal against the order of the Special Court. The Special Court upon receiving a claim for compensation shall give a notice to the contesting parties (including the Central/State Government, as the case may be), and give them an opportunity of being heard, inquire into the claim, and make an award determining the compensation. It may also direct the concerned authorities to initiate proceedings against the erring official(s) in accordance with law.

5. Compensation: providing for both pecuniary and non-pecuniary assistance to effectuate the rehabilitation of these victims into society. While pecuniary assistance will be in terms of monetary award as may be determined by the Special Court; non-pecuniary assistance will be awarded in the form of services such as counseling, mental health services, vocational/employment skills development, and such other similar services. Non-pecuniary assistance shall also include a specific provision for removing disqualifications in terms of employment in public and private sectors and admission in an educational institution etc. An order of acquittal operates retrospectively, and when given by the appellate court it also wipes out the sentence awarded by the lower court therefore it was imperative to include a specific provision removing the aforesaid disqualifications. The factors to be taken into consideration while determining the amount of compensation can be broadly categorized as financial, severity of the punishment, the length of incarceration, loss or damage to health, psychological and emotional harm along with status of the victim in the society, harm to reputation, loss of opportunities (of education, livelihood), loss of income/earnings and lastly loss or damage to property.