Wrongful prosecution

What is ‘Wrongful Prosecution’

Wrongful Prosecution or Malicious Prosecution refers to the act of initiating a civil or criminal lawsuit against another person without any grounds or probable cause. It is considered an abuse of the judicial system as it is filed with ill intention to harass, defame, or harm the innocent party.

Official Definition of ‘Wrongful Prosecution’

There is no legislative/statutory mechanism that defines wrongful prosecution.

277th Law Commission Report:

The Law Commission of India submitted its 277th Report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies on 30th August 2018. The report recommends ‘wrongful prosecution’ to be the standard of a miscarriage of justice as against ‘wrongful conviction’ and ‘wrongful incarceration’. It defined wrongful prosecution as including cases where the accused is 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.

Private Member Bills:

(i) The Protection of Rights of Wrongful Convicts Bill, 2019-

This bill was introduced by Dr Kirit Premjibhai Solanki in the Lok Sabha to establish a procedure for safeguarding the rights of wrongful convicts and for matters connected therewith or incidental thereto. Under Section 2(e), "wrongful incarceration or wrongful conviction" means an individual convicted of an offence and who served all or part of the sentence of the offence and was later acquitted for the reasons the individual was innocent or the judgment was reversed and other accusatory evidence was dismissed or prosecution executed without good faith, which concluded in favour of the accused or includes any of the following:— (i) making or fabricating a false or incorrect record or document for submission; or (ii) making a false declaration or statement before an officer authorized by law to receive as evidence when legally bound to state the truth that is to say by an oath or by a provision of law; or (iii) otherwise giving false evidence when legally bound to state the truth that is to say by an oath or by a provision of law; or (iv) fabricating false evidence for submission; or (v) suppression or destruction of an evidence to prevent its production; or (vi) bringing a false charge or instituting or cause to be instituted false proceedings against a person; or (vii) acting in violation of any law in any other manner not specifically covered above. However, this bill was never turned into an act by the Parliament.

(ii) The Code of Criminal Procedure (Amendment) Bill, 2022:

This bill was introduced by Shri Unmesh Bhaiyyasaheb Patil in the Lok Sabha to amend the Code of Criminal Procedure, 1973. It added the following clauses on malicious prosecution and wrongful prosecution in Section 2 of the CrPC:

“(ja) “ malicious prosecution” means instituting the prosecution complained 10 of without any existing reasonable or probable cause;” and

“(xa) “wrongful prosecution” means malicious prosecution or prosecution instituted without good faith, which concluded in favour of the accused, and includes any of the following, namely:— (i) making or fabricating a false or incorrect record or document for submission; (ii) making a false declaration or statement before an officer authorised by law to receive as evidence when legally bound to state the truth that is to say by an oath or by a provision of law; (iii) otherwise giving false evidence when legally bound to state the truth that is to say by an oath or by a provision of law; (iv) fabricating false evidence for submission; (v) suppression or destruction of an evidence to prevent its production; (vi) bringing a false charge, or instituting or cause to be instituted false proceedings against a person; (vii) committing a person to confinement or trial acting contrary to law; (viii) acting in violation of any law in any other manner not specifically covered under (i) to (vii) above;”.

The bill also inserted S. 358A in the amendment act for Application for compensation for wrongful prosecution. However, this bill was never turned into an act.

Legal Provision Relating to Wrongful Prosecution

India has no effective statutory or legislative mechanism for wrongful prosecutions due to police and prosecutorial misconduct. However, the existing laws bring three categories of remedies i.e., private, public and criminal law with respect to miscarriage of justice resulting in wrongful prosecution. In the first two remedies, the state provides compensatory relief to the victims who have suffered on account of wrongful prosecution whereas the third remedy holds the wrongdoer accountable i.e., proceedings against the concerned officers of the state for their misconduct.

(i) Private Law:

The private law remedy for errant acts of State officials exists in the form of a civil suit against the State for monetary damages. The Supreme Court has time and again emphasized the above-discussed Constitutional remedy of a claim based on strict liability of the State is distinct from and in addition to the remedy available in private law for damages on account of tortious acts of public servants especially negligence by a public servant in the course of employment. In State of Bihar v. Rameshwar Prasad Baidya, the SC held that the State is liable to pay damages to the accused person for his malicious prosecution by State employees. However, given the tardy pace of civil litigation and the expenses like court fees and other litigation costs, this remedy is not victim-friendly.

(ii) Public Law:

The public law remedy for miscarriage of justice on account of wrongful prosecution, incarceration or conviction is rooted in the Constitution of India. In such cases, it is the violation of fundamental rights under Article 21 and Article 22 that invokes the writ jurisdiction of the SC and HC under Article 32 and 226 of the Constitution respectively. It entitles the victim to be compensated who may have suffered detention or bodily harm at the hands of the state employees. In a catena of judgments, the SC has held the state’s vicarious liability to pay monetary compensation for the tortuous acts of its employees. These judgments established pecuniary compensation as a public law remedy for the violation of fundamental rights. However, most of the Subordinate Courts refrain from granting monetary relief and taking action against corrupt officers.

(iii) Criminal Law:

The criminal law remedy focuses on the wrongdoers i.e. the concerned public officials. The provisions contained in the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) lay down the substantive and procedural contours of the actions that can be taken against the wrongdoers.

• : Under the IPC, Chapter IX titled “Of Offences by or relating to Public Servants” deals with offences which can be committed by public servants and the offences which relate to public servants, though not committed by them. With respect to the issue under consideration, section 166 deals with disobedience of any direction of law in a general sense with an intent to cause an injury to a person and section 167 deals with a particular instance of a public servant framing an incorrect document with intent to cause injury. Further, Chapter XI titled “Of false evidence and offence against public justice’ also deals with disobedience on the part of public servants in respect of official duty. There are 44 sections in Chapter XI of IPC relating to giving and fabricating false evidence (Sections 191 to 200) and offences against public justice (Sections 201 to 229). The sections contained in these chapters together list offences that provide possible instances of police, investigating agency and prosecutorial misconduct concerning an investigation, prosecution, trial and other criminal proceedings. One of the most important sections with respect to the miscarriage of justice resulting in wrongful prosecution is Section 211 IPC. This section is interpreted to be specifically applicable to investigating agencies including the police when they bring a false charge of an offence with an intent to injure.

• : The CrPC provides safeguards to protect judges and public servants from vexatious litigation with respect to their actions while performing a public function. Sections 132 and 197 of CrPC mandate sanction of the government before any criminal proceedings are instituted against a police officer alleged to have committed a criminal offence while discharging the official duty. In addition to these provisions, there are also similar procedural safeguards for the police under a few of the States’ Police Acts and the Rules thereunder. Another Section 358 of CrPC is to be noted that provides for compensation to persons groundlessly arrested but there should be evidence to indicate that the informant caused the arrest of the accused without any sufficient cause. The person at whose instance the arrest was made may be ordered to pay compensation of a maximum of 1000 rupees to the person arrested which hardly makes it a relief for the wrong done.

(iv) Human Rights Commissions:

The National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) are provided with the power to inquire suo moto or on petitions filed for matters pertaining to human rights violations which also includes matters concerning wrongful investigations, illegal detentions, incarcerations, etc. If they find any human rights violation to be proved, it may only recommend the concerned government to pay compensation to the victims to prosecute the concerned wrongdoer. However, these recommendations are not binding on the government which renders this remedy ineffective.

International Law:

International Covenant on Civil & Political Rights 1966 (ICCPR) discusses the obligation of the State in cases of miscarriage of justice resulting in wrongful conviction. It requires the state to compensate the victim on account of wrongful prosecution.

Article 9(5) of ICCPR states: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Article 14(6) of the ICCPR states: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new and 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."

Though India has ratified ICCPR, it has not incorporated this obligation into the domestic legal framework.

Case Laws on ‘Wrongful Prosecution’

Rudul Sah v. State of Bihar & Anr.

The SC granted the writ petition stating that the petitioner’s detention for 14 years is illegal and violative of fundamental rights. It further declared the state’s liability to grant compensatory relief to repair the damage done by its officers to the petitioner’s fundamental rights. The court further observed that this remedy is independent of the rights available under private law in an action based on tort or under criminal law.

Bhim Singh, MLA v. State of J&K

In this case, an MLA was deliberately prevented from attending a session of the Legislative Assembly by arresting and illegally detaining him in police custody. The SC noted that the police officer acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude which resulted in the violation of Articles 21 and 22(2) of the petitioner. It further noted that when a person comes before the court with the complaint that he has been arrested with mischievous or malicious intent, the mischief or malice may not be washed away merely by setting him free. In appropriate cases, the SC has the jurisdiction to award monetary compensation.

Nilbati Behera v. State of Orissa

This case underlined the principle that sovereign immunity is not available in an action for compensation for violation of fundamental rights, where the adjudication is under Article 32 and 226 of the Constitution. The Supreme Court further observed that the award of compensation in writ proceedings is a remedy under public law based on strict liability for violating fundamental rights, though available as a defence under private law in an action based on tort.

Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi (Delhi HC)

The Delhi HC recognized the urgent need for a legislative framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration and asked the Law Commission to undertake a comprehensive examination of the aforesaid issues to make a recommendation to the government. The court further expressed grave concern about the state of innocent persons being wrongfully prosecuted for crimes that they did not commit.

International Experience

UK:

The UK has incorporated Article 14(6) of ICCPR into its domestic legislation, the Criminal Justice Act 1988 under Part XI subtitled “Miscarriage of Justice''. Sections 133, 133 A and 133 B provide for compensation to a person who has suffered punishment due to wrongful conviction. Further, Section 88 of the UK Police Act, 1996 deals with the ‘Liability for wrongful acts of constables’ which makes the chief officer of police liable in respect of any unlawful conduct of constables under his direction and control in the performance of their functions. For any damages caused, the payment or settlement amount is paid out of police funds.

The Criminal Cases Review Commission (CCRC) is a part of the criminal justice system in the UK to undertake the exercise of review of the cases with the possibility of miscarriage of justice. Any person who believes that they have been wrongly convicted or sentenced can make an application to CCRC, which can gather information related to the case by carrying out its own investigation to find out the truth and thereafter, apply for review of conviction if miscarriage is found.

USA:

The USA has also signed the ICCPR. A majority of the states in the US have their State laws providing for compensation to victims of wrongful prosecution. While some states lay down fixed amounts of compensation to be paid depending on the length of incarceration, other states provide discretion to the appropriate forums to decide compensation.

Canada:

Canada has no specific legislation which provides a remedy to wrongfully convicted persons. However, it has laid down guidelines of “Federal/Provincial Guidelines on Compensation for Wrongful Convicted and Imprisoned Persons” in consonance with the ICCPR. The guidelines lay down the eligibility criteria along with the procedure of determining the quantum of compensation. The compensation includes both pecuniary and non-pecuniary losses. An individual who crosses the eligibility test under these guidelines can also avail of the expenses incurred during the wrongful conviction, verdict, and demand for pardon.

Official Database Related to Wrongful Prosecution:

Shri Hibi Eden put the following questions to the Ministry of Law and Justice in the Lok Sabha-

(a) whether the Ministry maintains any record of the number of wrongfully prosecuted persons across the country, if so, the number of wrongfully prosecuted people in the country during last five years; (b) whether the Government plans to enact a separate legislation on ‘wrongful prosecution and compensation or to incorporate a provision for compensation to wrongfully prosecuted persons under CrPC in accordance with the Law Commission’s suggestion; (c) if so, the roadmap for its introduction and provisions under the same; and (d) if not, the reasons thereof?

Answer by Kiren Rijiju:

(a): No such information is maintained by the National Crime Records Bureau. (b) to (d): The Law Commission of India gave its 277th Report (Wrongful Prosecution (Miscarriage of Justice): Legal Remedies) in August 2018 and it was received in the Ministry of Home Affairs in September 2018. As the Criminal Laws and Criminal Procedure are in the Concurrent List in the Seventh Schedule to the Constitution of India, this Report was forwarded to all the State Governments/ Union Territory Administrations for their views/comments. The Department–related Parliamentary Standing Committee on Home Affairs, in its 146th Report dated 23.06.2010, had recommended that there is a need for a comprehensive review of the Criminal Justice System of the country. Earlier, the Parliamentary Standing Committee in its 111th and 128th Reports had also stressed the need to reform and rationalize the criminal law of the country by introducing comprehensive legislation in Parliament rather than bringing about piecemeal amendments in respective Acts.

Challenges and Way Ahead:

The legal framework that provides a statutory right to claim compensation from the state to victims of wrongful prosecutions, incarcerations and convictions is absent in India. The latest Prison Statistics of India which is an annual statistical report of the National Crime Records Bureau highlights the fact that as of 31st December 2022, there were 4,34,302 (75.8%) undertrial prisoners of total prisoners in Indian prisons. This leaves scope for innocent under-trial prisoners undergoing prolonged periods of wrongful incarceration. As discussed above in the remedies, the Indian Constitution enables the victims of wrongful prosecution to approach the court for availing compensation and furthermore, the Supreme Court through various landmark judgments has evolved this jurisprudence. Thus, the award of compensation has been recognized as a public law remedy for violations of constitutional rights, including wrongful prosecution. However, it must be noted that it is decided on a case-to-case basis depending on the facts of each case which makes this remedy arbitrary, discretionary and indeterminate. Furthermore, the remedy of compensation creates an ex gratia obligation and not a statutory obligation on the state to compensate. The Indian Judiciary is already overburdened with an excessive number of criminal cases. Hence, it becomes more important to enact a statutory framework for providing compensation to the victim and their family as recommended by the 277th Law Commission Report.