The Law Commission of India, in its 277th report, has recommended amendments to the Code of Criminal Procedure to include a mechanism for addressing instances of wrongful prosecution and providing legal remedies for victims of such prosecution.
To this end, the report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” submits the Code of Criminal Procedure (Amendment) Bill, 2018.
Delhi High Court judgment
The report takes note of the judgment in the case of Babloo Chauhan @Dabloo v. State of Government of NCT of Delhiwherein the Delhi High Court had requested LCI to examine the possibility of a legislation for providing relief and rehabilitation to victims of wrongful prosecution and incarceration in India.
The Bench comprising Justice S. Muralidhar and Justice I.S. Mehta had then highlighted the “urgent need” for a framework, observing, “There is an urgent need, therefore, for a legal (preferably legislative) framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration. Whether this should be an omnibus legislation or scheme that caters to both the needs of the victim of the crime, as well those wrongfully incarcerated, including the family and dependents of the prisoner, or these have to be dealt with in separate legislation or schemes is a matter for discussion, deliberation and consultation with a cross-section of interest groups.
Specific to the question of compensating those wrongfully incarcerated, the questions as regards the situations and conditions upon which such relief would be available, in what form and at what stage are also matters requiring deliberation. This is a task best left in the first instance to the body tasked with advising the government on the legislative measures needed to fill the obvious gap.”
Taking note of the judgment, the LCI now noted the lack of an effective response from the State to victims of such wrongful prosecutions within the criminal justice system in the country. It has therefore set out standards to be applied to the said “miscarriage of justice”, while also explaining what amounts to wrongful prosecution.
Following is a summary of the recommendations made by it:
Special Court
Emphasising on the need for speedy adjudication of claims brought by those wrongfully prosecuted, the Commission recommends designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. An applicant could either apply before the Special Court with jurisdiction over the area where the wrongful prosecution occurred, or before the Special Court with jurisdiction over the place of his residence.
Who can apply
A claim for compensation can be brought by any person who was wrongfully prosecuted and suffered damage to body, mind, reputation or property. Further, it can be brought by the person, his agent, or by his heirs or legal representatives if the person dies after termination of such prosecution.
Cause of action
The report advocates for the ambit of wrongful prosecution to include malicious prosecution and prosecution instituted without good faith. It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause.
As for prosecution instituted without good faith, it would be understood to include a prosecution instituted negligently, without due care and attention.
Nature of proceedings
The report recommends the following of summary procedures by the Special Court for the purpose of inquiry and adjudication, with the burden on the claimant (accused) to prove misconduct which lead to wrongful prosecution. Additionally, it suggests a framework with timelines for disposal of the application, for payment of compensation, period of limitation for filing the claims for compensation, and for filing an appeal against the order of the Special Court.
In addition to award of compensation, the Special Court may also direct the concerned authorities to initiate proceedings against erring officials in accordance with law.
While the report acknowledges the fact that it is not feasible to lay down a fixed amount of monetary compensation to be paid, it does list down certain guiding principles or factors that a Special Court will be required to consider while determining the amount of compensation to be paid.
The report vouches for pecuniary as well as non-pecuniary assistance, in order to effectively effectuate the rehabilitation of victims of wrongful prosecution into the society. Pecuniary assistance would be in terms of monetary award to be determined by the Special Court, and non-pecuniary assistance would include services such as counselling, mental health services, vocational/ employment skills development, and other similar services.
Non-pecuniary assistance would also include a provision for removing disqualifications attached to a prosecution or conviction, particularly concerning employment or educational opportunities.
The factors which will be taken into consideration while determining the amount of compensation have been suggested to be categorized into “financial” and “other factors”, including inter alia seriousness of the offence, severity of the punishment, the length of incarceration, loss or damage to health, psychological and emotional harm, status of the victim in the society, harm to reputation, loss of opportunities (of education, livelihood), loss of income/ earnings, and loss or damage to property.