India Needs A Law To Protect The Victims From Wrongful Prosecution

Aditya Chopra, 5th Year, Law Student
Rajiv Gandhi National University of Law, Punjab
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Date : 04/12/2021
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India Needs A Law To Protect The Victims From Wrongful Prosecution

Our Indian Criminal Justice system works on the principle of `Fiat Justitia Ruat Caelum' which means `Let the Justice be done though the heavens fall'. Despite this Principle, the Wrongful/malicious Prosecution of innocent accused is a common practice in our democratic country. Beside, living in a harsh social stigma and absence of any statutory provision of compensation and rehabilitative measures, the innocent accused languish in jail for the years and later acquitted on one fine day for the offence which they haven't committed. The term Wrongful Prosecution was defined in case of West Bengal State Electricity Board v. Dilip Kumar Ray, in the present case, court held that when a judicial proceeding is instituted in the court of law without any probable cause and with improper motive then that proceeding may termed as Wrongful/malicious Prosecution. In other words, wrongful prosecution means when one person knowingly files a false, baseless criminal case against the other person in order to victimize the accused person.

The term Wrongful/malicious Prosecution has been evolved during 18th century in England which says that when the person mis-use the due procedure of law. Later this term spread to different countries of the world including India. This term is most witnessed in the common law countries which have the influence of English laws. The elements of Wrongful Prosecution are the 1. Absence of any concrete base to held the accused person, 2. The Defendant acts in wrongful manner, 3. The accused person suffers damage due to which he languish in imprison for the years.

Infringement of Fundamental Human Rights of Innocent Accused Persons

An innocent individual sentenced and languished in imprisonment for the offence which he/she has never committed lead to the infringement of fundamental Human rights provided by the Indian Constitution and International Covenant of Civil and Political Rights. Article 21 of the Indian Constitution says that the individual should lead his/her life with dignity and also includes Right to shelter, proper clothing, basic necessities with minimum human self but the practice of Wrongful Prosecution takes away his right which is the most important fundamental human right. Article 19 of the Indian Constitution States the Freedom of Speech and Expression but this right is also curtailed due to Wrongful Prosecution. 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 arsing with the wrongful prosecution, at the same time the state should compensate the innocent accused person in the view of Article 9(5) of International Covenant on Civil and Political Rights. As per the 277 report of the law commission of India 168 states including India have ratified the ICCPR but not adopted in its Criminal Procedure Code. In the case of Hussainara Khatoon v. Home Secretary of Bihar, in the present case, Supreme Court of India held that under Article 21 of the Indian Constitution right to speedy trial also prevails and if no procedure provides this remedy then Article 21 the most important fundamental Human Right is foul. In Rudul Sah v. State of Bihar, which is also considered as landmark compensatory judgement in terms of wrongful/malicious prosecution. In this case for the first time Supreme Court of India provided the compensation of tune Rs 30,000 in 1980's to accused innocent who was imprisoned for 14 years. For the first time in the Indian History, Delhi High Court in 2018 in the case of 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 High Court recommended the Law Commission of India the comprehensive examination of the above issue. Orrisa High Court in Nityananda Behera v. State of Orissa, 2020, set aside the judgement of sessions court pronounced in 1987, convicting the accused under section-302 of IPC. High Court in 2020 held that accused was wrongfully prosecuted and acquitted him from the charges. High Court also held that "we need reforms in the Prosecution system in India as Justice Delayed is Justice Denied. Right to Speedy trial enshrined under Article 21 of Indian Constitution should be upheld."

Law Commission of India's 277 report `Wrongful Prosecution (Miscarriage of Justice)-Legal Remedy

Justice B.S. Chauhan (Retd.) then Chairman of Law Commission of India opined that Article-14(6) of ICCPR is insufficient to overcome the practice of Wrongful prosecution in our Indian Criminal Justice System as it contains the limited definition of Wrongful prosecution. Law Commission proposed the recommendation to insert the 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, who may file for the relief under the above sections, the procedure of appeal to High Court from the order of compensation by Special Court of Law etc.

The above are only the recommendations and till now it has not evolved out as a statute. Recently in Supreme Court of India, Public Interest Litigation has been filed titled as Ashwani Kumar Upadhyaya v. Union of India and ors, in which petitioner urged for issuing of guidelines to central and state governments for the mechanism of compensation in wrongful prosecution of innocent accused and urging for implementation of 277 Report of Law Commission of India. Petitioner further stated that till now central government has not taken any step towards the Law Commission of India's report. The matters of Wrongful prosecution have been increasing day by day but central government failed to implement the recommendations to overcome the problem.

The Supreme Court of India as a Protector of Fundamental Human Rights should issue the guidelines to the Central Government for implementation of 277 Report of Law Commission of India.

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