Our Indian criminal justice system works on the principle of ‘Fiat Justitia Ruat Cælum’ which means ‘Let the Justice be done though the heavens fall.' Despite this, the wrongful/malicious prosecution of an innocent person is a common practice in this democratic country. Besides dealing with the social stigma and absence of any statutory provisions for compensation and rehabilitative procedures, innocent people languish in prison for years. The term wrongful prosecution was defined in the case of West Bengal State Electricity Board v. Dilip Kumar Ray, wherein the Court held that when a judicial proceeding is instituted in a Court of law without any probable cause and with improper motive, that proceeding may be termed as wrongful/malicious prosecution. In other words, wrongful prosecution means where a person knowingly files a false and baseless case against the other person in order to harass them.
The term wrongful/malicious prosecution evolved during the 18th century in England which means the person misuses the due process of law. The elements of wrongful prosecution are: First, the absence of any concrete basis to hold the accused person; Second, the defendant acts in wrongful manner, and third, the accused person suffers damage due to being imprisoned for any amount of time.
Infringement of Fundamental Rights of victims of malicious prosecution
An innocent individual who has been sentenced to imprisonment for the offence which he/she has not committed, leads to the infringement of fundamental rights provided by the Indian Constitution. Article 21 of the Indian Constitution says that an individual should enjoy his/her life with dignity which also includes the right to shelter, proper clothing, basic necessities, but the practice of wrongful prosecution takes away these rights. Similarly, Article 19 of the Indian constitution protects freedom of speech and expression and under this Article, the right to move freely throughout the India, right to free speech and expression with friends and family members, right to peaceful assembly, right to reside in any part of India etc. are also curtailed due to wrongful prosecution. For example in 2014, a married woman registered a false rape case against a person. Due to this the accused person was taken into custody on basis of the false FIR filed against him. After the trial started and the Court came to know that she filed a false rape case against that person. The person now stands acquitted by the session’s court. However, during the period of filing of the false FIR against him and during the trial, the accused person was lodged in jail. His rights under Articles 19 & 21 of the Indian Constitution (as stated above) were curtailed. Apart from this, Article 14(6) of the International Covenant on Civil and Political Rights, 1966 confers an obligation on states to minimize the problems of miscarriage of justice arising with the wrongful prosecution. At the same time the State should compensate an innocent person in view of Article 9(5) of International Covenant on Civil and Political Rights. As per the 277th Report of Law Commission of India and the reports of United Nations Treaty Collection Chapter IV stipulates that Article 9 of ICCPR provides for compensation to persons wrongfully arrested, but under the Indian legal system it does not provide any enforceable right to compensation to victims groundlessly arrested or prosecuted. 168 states including India have signed the ICCPR but not ratified it, as stated in 277th Report of the Law Commission of India, which emphasizes that there should be an amendment in the existing Criminal Procedure Code to provide guiding principles of compensation to the person convicted under wrongful prosecution.
Rudul Sah v. State of Bihar is considered as a landmark compensatory judgement in terms of wrongful/malicious prosecution. In this case, the Supreme Court of India provided compensation to the tune of Rs. 30,000 to an accused innocent who languished in prison for 14 years, in 1980s.
For the first time in the Indian history, the Delhi High Court in 2018, in Babloo Chauhan v. State of NCT Delhi, held that there is inadequacy in the present legislative framework to provide the relief to the innocent accused persons in terms of wrongful/malicious prosecution and the High Court recommended the Law Commission of India to conduct a comprehensive examination of the above mentioned issue. The Orissa High Court in Nityananda Behera v. State of Orissa set aside the judgment of a Sessions Court pronounced in 1987, and acquitted the accused by removing the charges filed under section 302 of the Indian Penal Code, 1860 (IPC). The High Court in 2020 held that accused was wrongfully prosecuted and acquitted him from the charges. Justice Sangam Kumar Sahoo, while pronouncing the acquittal judgment said that "there is a need for reforms in present prosecution system to overcome the problem of wrongful prosecution" and also said "We understand the plight of innocent accused languished in jail for almost 32 years and no one can restore the loss of years to them."
Law Commission of India’s 277th report on 'Wrongful Prosecution (Miscarriage of Justice)' - Legal Remedy
Justice B.S. Chauhan (retd.), erstwhile Chairman of the Law Commission of India, opined that Article 14(6) of ICCPR was insufficient to overcome the practice of wrongful prosecution in the Indian criminal justice system as it contains a limited definition of wrongful prosecution. The Law Commission proposed a recommendation to insert a new chapter in Indian Criminal Procedure Code to adjudicate the claims arising out of wrongful prosecution in India and the compensation to be given by the state under new sections like 365A, 365C, 365D, 365E, 365F and 365H. These sections provide for the setting up of Special Courts at the district level to hear the matters of wrongful prosecution and determining the compensation, or who may file for the relief under the above sections, or the procedure of appeal to High Court from the order of compensation by the Special Court of Law, etc.
The above mentioned points are recommendations as of now and till now it has not evolved out as a statute. The law of land is "bail, not jail", but still the wrongfully arrested persons are languishing behind the bars because of improper investigation against them. As a result of this, India has one of the highest under trial population in the world i.e. 16th out of 217 countries. The Indian legal system does not have any provision of right to compensation for wrongly accused persons who have been arrested and implicated. However, there have been several landmark Supreme Court judgments ordering huge amount of compensation to prevent the violation of fundamental rights, such as the case of S. Nambi Narayanan v. Siby Mathews, where the Supreme Court ordered Rs. 50 Lakhs compensation to former ISRO Scientist Nambi Narayanan for being implicated in wrongful/malicious prosecution. The Court also ordered the enquiry to be conducted by former Judge of Supreme Court against the erring officers involved in malicious prosecution.
Recently in the Supreme Court of India, a Public Interest Litigation (PIL) has been filed titled as Ashwani Kumar Upadhyaya v. Union of India and ors., where the petitioner has urged the Court to issue the guidelines to central and state governments for providing a mechanism for compensating wrongful prosecution of innocent accused and also urged them for implementation of Law Commission of India's 277th report. The petitioner stated that till now the central government has not taken any step towards the Law Commission of India’s 2018 report. As per the Prison Statistics report, the number of under trial prisoners have increased from 3,23,537 in 2018 to 3,30,487 in 2019. In the absence of any mechanism to regulate this practice, there has been surge in filing of false cases against the innocent persons but the central government has failed to implement the recommendations to overcome the problem.
The Supreme Court of India should issue guidelines to the central government for implementation of Law Commission of India's 277th Report and dispose off the above mentioned PIL with directions in a time bound manner, because it has been three years since the Law Commission of India has made its recommendation, but to no avail. In fact, till the implementation of law takes place by the Indian Parliament, the Supreme Court of India should immediately stipulate the interim guidelines for ascertaining the compensation, rehabilitation of accused persons groundlessly prosecuted, etc. which are to be followed by the subordinate courts and the Executive to curb the practice of wrongful/malicious prosecution, as was done by the Supreme Court in Vishaka v. State of Rajasthan, wherein the Court issued interim guidelines to prevent sexual harassment at workplace till the Parliament passed a proper law. The above process should be adopted by the Supreme Court to fasten the process for rehabilitating and compensating the wrongful prosecuted accused persons.
* This article has been written by Aditya Chopra, a student of Batch of 2022 at the Rajiv Gandhi National University of Law, Punjab.