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Report No. 277

A. Standard to be applied to 'Miscarriage of Justice'

5.2 The international law standard as laid down in the ICCPR133, and included in the law of compensation for miscarriage of justice of many Western countries (including the federal and state laws in the United States, Canada, Germany and others discussed in the previous chapter), recognize miscarriage of justice as resulting in 'wrongful conviction' by virtue of a final order, after all avenues of appeal have been exhausted and a new fact surfaces which then proves conclusively that the convicted person was factually innocent, and only in such case does the claimant qualify for the relief of compensation. The said standard bars compensation in cases where the conviction was (partly or fully) attributable to the claimant.

5.3 This standard of miscarriage of justice is, therefore, invoked only when a new fact establishes factual innocence of the claimant after a final conviction order by the final appellate court and after all avenues of appeal have been exhausted; thereby recognizing 'wrongful conviction' (and suffering of punishment on its account) as the standard of miscarriage of justice. This standard if applied, however, will fail to consider the systemic shortcomings of the criminal justice system in India.

5.4 Firstly, this standard would not include within its purview forms of miscarriage of justice that an accused person may suffer even if they are eventually acquitted. For example, illegal and wrongful detention, torture in police custody, long incarceration, repeated denial of bail, among others. A requirement that all 'avenues of appeal be exhausted and post which a new fact shows that there has been a miscarriage of justice' does not work in the Indian conditions because of the delays in the criminal trial/appeal process; the accused person may be in the prison (or suffer otherwise) for the period which may be as long as or longer than the sentence for the offence for which he is ultimately acquitted.

5.5 The second issue in applying this standard is the parameter of 'new fact proving factual innocence' post the (final) conviction. In most of the western jurisdictions using this standard, given their advanced forensic investigation system, factual innocence is often proved through the use of DNA technology/evidence. For example, in the United States, since the early 1990s there is the Combined DNA Index System (CODIS) for the purpose of amalgamating forensic sciences and computer technology into an effectual apparatus for solving serious crimes.134

Similarly, in the United Kingdom, there is the National DNA Database (NDNAD), and the Criminal Justice and Public Order Act that allows the police to take DNA samples of the arrested person before the investigation process begins so as to make the process faster, and to eliminate innocents. In India, however, since the forensic investigation system is not that well developed, and the use of DNA based technology in criminal investigation and proceedings is yet to gain ground, the chances of DNA based evidence contributing towards the exoneration of innocents are very limited.

5.6 Thirdly, this standard excludes claims of compensation in cases where the conviction was partly or wholly attributable to the accused person; for example, causation of prosecution by the claimant such as confessing to guilt despite being innocent. This exclusion, if applied, would disqualify from relief cases where the accused are forced to confess under duress and they do so despite being innocent; a practice endemic to criminal investigations in India.135

5.7 Further, if wrongfulness is understood as convicting a person of an offence of which they were factually innocent, it will create a hierarchy of acquittals - those who were factually innocent and those who were not. Currently, the Indian legal system presumes anyone who is not convicted of an offence to be innocent of it. This presumption of innocence would be in jeopardy by creating categories of innocent persons, and would seriously disadvantage those who cannot show that they were factually innocent. This is especially problematic because, as noted above, factual innocence is very difficult to prove.

5.8 In this manner, wrongful conviction is too high a standard, and there are many forms of miscarriage of justice that arise even though there is no conviction ultimately. This standard would therefore be under-inclusive in application in the Indian context.

5.9 The second standard is that of 'wrongful incarceration', i.e. miscarriage of justice resulting in wrongful incarceration- where the person has spent time in prison for an offence for which they may ultimately not be convicted, prosecuted, or even charged. This standard would invoke miscarriage of justice in all cases of acquittals where the person has spent some or substantial time in prison i.e. all cases with long-drawn trials resulting in acquittals.

5.10 Although addressing a very serious form of miscarriage of justice, this standard in application would be both over-inclusive and under-inclusive. Firstly, because not all cases of acquittals are a result of wrongful prosecution; acquittals may very well be on account of other reasons such as factual or legal errors, or the inability of the prosecution to prove the case beyond reasonable doubt, or the accused being given the benefit of doubt. But, this standard would include each of the cases where the person was incarcerated for whatever amount of time and was later found to be not guilty. A corollary of the foregoing would be relief being granted to those who may be factually guilty, but were acquitted for procedural reasons such as witness turning hostile etc. In this manner, this standard in practice will overshoot its intended objective.

5.11 Secondly, making only wrongful incarceration as the standard of miscarriage of justice will exclude such cases of wrongful prosecution (resulting in acquittal) where the accused was granted bail and/or did not spend any time in prison; but, they nonetheless suffered on account of such wrongful prosecution/charges - prolonged trial, social stigma, loss of employment, legal expenses and the mental and physical harassment etc. This standard of 'wrongful incarceration' in this manner would be under-inclusive.

5.12 The third standard is that of wrongful prosecution. This standard identifies miscarriage of justice as police or prosecutorial (procedural) misconducts resulting in malicious or negligent investigation or prosecution of an innocent person. It targets cases where the police or prosecution maliciously, falsely or negligently investigated or prosecuted a person who was found not guilty of the crime.

5.13 This standard is based on a finding that the accused was not guilty of the offence, but the police and/or prosecution engaged in some form of misconduct in investigating, charging and/or prosecuting the person. Since the qualifying threshold of this standard is wrongful prosecution, 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 adjudged innocent by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty.

5.14 In the Indian context, the standard of wrongful prosecution should be the most effective for identifying the cases of miscarriage of justice as it directly targets procedural and other police and prosecutorial misconducts, which appears to be one of the primary sources of factual errors that results in innocent people being held guilty of offences they did not commit. As is evident from the cases discussed earlier in the Report (Chapter IV- 'Current Scenario - Overview and Inadequacies'), bringing to light instances of police, investigating agency, and/or prosecutorial misconduct leading to wrongful prosecution of persons who were ultimately found not guilty in trial/appeal, with many of the court orders also recording a finding to that effect.

5.15 Reference is made to an Order dated 31 May 2018 of a Special CBI Court in CBI v. Om Prakash Aggarwal & Ors.136, where the Court noted the abuse of process of law, excess of discretion and jurisdiction and violation of the mandate of law by the IO (Investigating Officer) in booking innocent persons for a bank fraud; who were then acquitted, after a long trial of 14 years, for the lack of any incriminating evidence. The Court specifically observed that: It is astonishing to note that IO despite having come to the conclusion regarding 'no misuse' of power or breach or nonfollowing of the procedure by accused bank officers, yet decided to file the charge sheet against them.

5.16 The underlined determining factor of this standard is the malpractice on the part of the police, investigating agency, and/or the prosecution in the proceedings leading up to and/or during the wrongful prosecution of the accused, who was later found to be not guilty of the offence.



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