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Report No. 277

B. Recommendations

6.10 The Commission at this time, accordingly, recommends enactment of specific legal provision for redressal of cases of miscarriage of justice resulting in wrongful prosecution- covering both the substantive and procedural aspects; i.e. a statutory and legal framework establishing the mechanism for adjudicating upon the claims of wrongful prosecution, and inter alia award payment of compensation by the State, if so determined. Consequently, creating a statutory obligation on the State to compensate the victims of wrongful prosecution, and a corresponding statutory right of compensation for the said victims. And, in such cases where the State pays compensation for the errant acts of its officials, it can seek indemnification from the concerned officials, and also initiate appropriate proceedings against them in accordance with law.

6.11 The need for a legislative framework for redressal of harms inflicted by wrongful prosecution arises on many counts. One of the most important being that the injustice caused to the innocents needs to be redressed within the framework of rights and not ex gratia by the State. The other being that there needs to be an established legislative process according a transparent, uniform, efficacious, affordable and timely remedy for the loss and harms inflicted on the victims on account of wrongful prosecution. In view of the foregoing, the core principles underlining the recommended legal framework would be as follows:

(i) Special Court: One of the most important considerations in creating this remedy framework is that the claims need to be decided as speedily and swiftly as possible. The element of speed and time efficiency particularly gains importance because the claim itself arises from unjustified prosecution (often prolonged), which the wrongfully accused and his family should not have been put through in the first place. Any process of relief so designed, therefore, needs to be speedy, expedient, and be made keeping in mind the interest of the claimant; and the most crucial aspect of this is the forum at which these claims are adjudicated. Accordingly, the Commission recommends designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice jurisdiction should be made by the applicant, as follows:

(i) either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred; or

(ii) the Special Court within the local limits of whose jurisdiction the applicant resides.

(ii) Cause of Action: Within this legal framework, the cause of action for filing a claim for compensation would be that of 'wrongful prosecution', which ended with an order or judgment in favor of the accused, inter alia acquitting him. The ambit of 'wrongful prosecution' herein would include (i) malicious prosecutions; and

(ii) prosecutions instituted without good faith. Malicious prosecution, as included herein, means malicious institution by one against another of unsuccessful proceedings without reasonable or probable cause. Where the expression 'reasonable and probable cause' is the honest belief in the guilt of the accused based upon a full conviction, founded upon existence of circumstances, which would reasonably lead any ordinary, prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed144; the question being whether there was a case fit to be tried.

The foundation of this cause of action lies in the abuse of legal process by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper cause.145 A prosecution instituted without 'good faith' would also be included within the purview of wrongful prosecution, giving rise to a claim for compensation hereunder.

Section 52, IPC, laying down an exclusionary definition of the term 'good faith', says that no act is done in good faith if it is done without "due care and attention"146; where 'due care' denotes the degree of reasonableness in the care sought to be exercised147- when holding an office or duty requiring skill or care, merely good intention is not enough but such care and skill as the duty reasonably demanded for its due discharge. Absence of 'good faith' can, therefore, be understood to mean negligence or carelessness;148 i.e. a prosecution instituted negligently without due care and attention would be included within the definition of wrongful prosecution under this legal framework.

(iii) Who can apply:

A claim for compensation hereunder would be for the harm or damage caused to any accused person in body, mind, reputation or property as a result of the wrongful prosecution - i.e. for the 'injury' resulting from wrongful prosecution. The claim for compensation can be brought by the accused person so injured; or by any agent duly authorized by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.

(iv) Nature of Proceedings: Keeping in mind the objective of efficiency in terms of time and process, it is recommended that the Special Court for the purpose of inquiry and adjudication herein, follow summary procedures as may be prescribed. The standard of proof in these proceedings on probabilistic threshold will be that of 'balance of probabilities'149;

with the burden on the claimant (accused) to prove misconduct which lead to wrongful prosecution, and/or the misconduct during the prosecution which made it wrongful. The standard is the supposition of a prudent man faced with connecting probabilities or improbabilities concerning a fact-situation, after weighing the various probabilities and improbabilities, and arriving at the preponderance150- i.e. whether a reasonable man could have come to the same conclusion.151 Additionally, the framework will also include prescribed timelines for the disposal of the application, for payment of compensation; period of limitation for filing the claim for compensation, and for filing an appeal against the order of the Special Court.

Upon receiving an application for claim of compensation, the Special Court, after giving notice to the contesting parties (including the Central/State Government, as the case may be), and giving them an opportunity of being heard, inquire into the claim, and may make an award determining the compensation to be paid by the Central/State Government. The Special Court may also direct the concerned authorities to initiate proceedings against the erring official(s) in accordance with law.

(v) Compensation: The essence of a statutory response to the victims of wrongful prosecution lies in the relief provided to them, for that underlines the basic intent and objective of this law i.e. to assist the wrongfully accused/convicted in reintegrating into society or their lives for that matter. Accordingly, this statutory framework in addition to establishing the State's liability to pay compensation in the proven cases of wrongful prosecution, will also elaborate on the relief i.e. compensation to be paid in such cases.

While at this point, it does not appear feasible for the law to lay down a fixed amount of monetary compensation to be paid, the law will include the guiding principles/factors that a Special Court will be required to consider while determining the compensation including the amount of monetary compensation. There also needs to be a provision providing for interim compensation in certain specified category of cases, if applied for, for immediate assistance; to be paid pending the adjudication of the claim. Compensation under this framework will include both pecuniary and non-pecuniary assistance to effectuate the rehabilitation of these victims of wrongful prosecution into society.

While pecuniary assistance will be in terms of monetary award as may be determined by the Special Court; non-pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and such other similar services. Non-pecuniary assistance shall also include a specific provision for removing disqualifications attached to a prosecution or conviction - particularly affecting wrongfully accused person's chances of finding employment in public and private sectors; getting admission in an educational institution etc.

The foregoing is of utmost importance because of the social stigma and other such disadvantages attached to a prosecution and conviction (notwithstanding that it was wrongful in the first place). In a criminal case, acquittal by a trial court or by the appellate court recording a finding that the accused had been wrongly implicated in a case must take away the stigma because the charges themselves stand washed off, i.e. in cases of honourable acquittals152. An order of acquittal operates retrospectively, and when given by the appellate court it also wipes out the sentence awarded by the lower court.153

To give practical effect to the foregoing, it is imperative to include a specific provision removing the aforesaid disqualifications. Such a provision, backed by statutory force, would go a long way in assisting the accused person to reintegrate into society. The factors to be taken into consideration while determining the amount of compensation can be broadly categorised as '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, loss or damage to property.

6.12 The principles discussed in the Report are articulated in the Code of Criminal Procedure (Amendment) Bill, 2018, attached herewith as 'Annexure'. The Commission recommends accordingly.

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