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Report No. 277

Wrongful Prosecution (Miscarriage of Justice): Legal Remedies

1 247 (2018) DLT 31.

2 Brian Frost, Errors of Justice, Nature, Sources and Remedies (Cambridge: Cambridge University Press, 2004) 3.

3 AIR 1947 PC 19.

4 See also: Srinivas Ram Kumar v. Mahabir Prasad & Ors., AIR 1951 SC 177; and Union of India v. Ibrahim Uddin & Anr., (2012) 8 SCC 148.

5 Janata Dal v. H. S. Chowdhary & Ors. AIR 1993 SC 892; see also: T. N. Dhakkal v. James Basnett & Anr. (2001) 10 SCC 419.

6 AIR 1981 SC 1415.

7 K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788.

8 State Of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368; see also: Abrar v. State of Uttar Pradesh, AIR 2011 SC 354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059.

9 Nageshwar Sh. Krishna Ghobe v. State of Maharashtra, AIR 1973 SC 165; Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921; State v. T. Venkatesh Murthy, AIR 2004 SC 5117; Prakash Singh Badal v. State of Punjab, AIR 2007 SC 1274; Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485; Bhimanna v. State of Karnataka, AIR 2012 SC 3026; and Darbara Singh v. State of Punjab, AIR 2013 SC 840).

10 State of Uttar Pradesh v. Nawab Singh, AIR 2004 SC 1511; State of Uttar Pradesh v. Premi, AIR 2003 SC 1750; and Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka & Ors., AIR 2012 SC 1395.

11 AIR 2012 SC 979

12 Allarakha K Mansuri v. State of Gujarat, AIR 2002 SC 1051, the Supreme Court held that in a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the appellate court to re-appreciate the evidence in appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. See Also: State of Rajasthan v. Shera Ram, AIR 2012 SC 1.

13 Ministry of Home Affairs. Available. National Crime Records Bureau, Prison Statistics India - 2015 (September 2016). Available at 2016.pdf. (Last Accessed: 10 August 2018)

14 Central Jails; District Jails; Sub Jails; Women Jails; Open Jails; Borstal Schools; Special Jails; and Other Jails, Ibid.

15 National Crime Records Bureau, Prison Statistics India - 2015, supra.

16 Ibid.

17 National Crime Records Bureau, Prison Statistics India - 2015, supra.

18 Available at ENG/550.pdf. (Last Accessed 12 August 2018) .

19 "Highest to lowest- pre-trial detainees /remand prisoners". World Prison Brief, Institute for Criminal Policy Research. Available at: field_region_taxonomy_tid=All.
(Last Accessed: 12 August 2018). See also: Amnesty International India, Justice Under Trial: A Study of Pre-trial Detention in India

20 World Prison Brief, Institute for Criminal Policy Research, 'Highest to lowest- pre-trial detainees / remand prisoners'. Available at: field_region_taxonomy_tid=All

21 In a total of 28 entries. "Institute for Criminal Policy Research, 'Highest to lowest- pre-trial detainees / remand prisoners". World Prison Brief. Available at: field_region_taxonomy_tid=16. (Last Accessed: 12 August 2018).

22 (2013) 2 SCC 590. See also: Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1369; Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and Ors. (1994) 6 SCC 731.

23 United Nations Human Rights Committee is the UN body whose interpretations of the ICCPR are considered authoritative.

24 Communications No. 880/1999; Irving v. Australia, para. 8.4; No. 868/1999, Wilson v. Philippines, para. 6.6., as cited in the General Comments 32, UN Human Rights Committee

25 Communication No. 89/1981; Muhonen v. Finland, para. 11.2. ibid

26 Under the Act there is also a time limit for filing of the claim i.e. before the end of the period of 2 years from the date on which the conviction of the person concerned is reversed or he is pardoned (Section 133).

27 [2011] UKSC 18.

28 [1987] UKHL 12.

29 [2005] UKHL 24.

30 [2018] UK SC 4.

31 Section 97b(1), The German Criminal Code.

32 Compensation provided for in such a case is fixed at EUR 1,200 for each year of delay with the discretion for vested with the Federal Constitutional Court to set a higher or lower amount. Section 97a(1), The German Criminal Code.

33 The compensation amount is fixed at $50,000 for each year of incarceration, and $100,000 per year for each year on death row.

34 'Entitlement to Compensation- The Legal Framework'. Available at:

35 [2007] SCC 41.

36 "Second Report for Minister of Justice on Compensation Claim by Teina Antihony Pora". Hon Rodney Hansen Cnzm Qc. Available at: (Last Accessed: 29 July 2018)

37 In Australian jurisdictions, where ex gratia compensation payments are made, they include both pecuniary and non-pecuniary loss to the person i.e. loss that is easily quantifiable (such as loss of income), and loss that is not readily calculable (such as pain and suffering or the loss of the expectations of life).

38 Adrian Hole. Compensation for Wrongful Compensation. Trends & Issues in Crime and Criminal Justice: No. 356, May 2008, Australian Government, Australian Institute of Criminology.

Available at (Last Accessed: 29 July 2018)

39 Tom Percy QC. Despised Outsiders: Compensation for Wrongful Convictions. Precedent Issue 81 July/August 2007. Available at (Last Accessed 29 July 2018).

40 See: The 'Ad Hoc' Committee, the Indian Insurance Company Association Pool v. Smt. Radhabai, AIR 1976 MP 164, the Court observed that "These cases show that traditional sovereign functions are the making of laws, the administration of Justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace and other consequential functions. Whether this list be exhaustive or not, it is at least clear that the socio-economic and welfare activities undertaken by a modern State are not included in the traditional sovereign functions.".

41 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

42 AIR 1981 SC 928.

43 AIR 1983 SC 1086:

44 Ibid.

45 B. C. Oraon v. State of Bihar, cited in M. P. Jain, Indian Constitutional Law Volume 1 (LexisNexis, Gurgaon, India Updated 6th Edition, 2013) 1618; see also: Devki Nandan v. State of Bihar, AIR 1983 SC 1134;

46 See: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.

47 (1985) 4 SCC 677.

48 AIR 1990 SC 513.

49 See also Peoples' Union for Democratic Rights through its Secretary & Anr. v. Delhi Police Headquarters & Anr., (1989) 4 SCC 730; Joginder Kaur v. State of Punjab, (1969) 71 PLR 85. 50 AIR 1991 SC 871.

51 AIR 1993 SC 1960; see also: State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 5 SCC 712.

52 The Court in this case distinguished the state's liability in cases involving violation of fundamental rights from a claim the claim of damages for the tort of conversion under the ordinary process, stating that the decision of "the Court in Kasturilal (Kasturi Lal Ralia Ram Jain v. State of U.P, AIR 1966 SC 1039) upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort."

53 AIR 1997 SC 610.

54 AIR 1995 SC 922; Mrs. Sudha Rasheed v. Union of India, 1995 (1) SCALE 77.

55 Dhaman Joy Sharma v. State of Haryana, AIR 1995 SC 1795; Dalbir Singh v. State of U.P., AIR 2009 SC 1674.

56 AIR 1997 SC 1203; see also: Nasiruddin v. State, 2001 CriLJ 4925; Tasleema v. State (NCT of Delhi), 161 (2009) DLT 660.

57 Anwar v. State of J & K, (1977) 3 SCC 367.

58 See: Common Cause, A Regd. Society v. Union of India, AIR 1999 SC 2979; National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234.

59 AIR 2000 SC 988.

60 (2006) 3 SCC 178.

61 See: Dr. Rini Johar & Anr. v. State Of M. P. & Ors., Judgement dated 3 June 2016 in Criminal Writ Petition No. 30 of 2015; Ram Lakhan Singh v. State Government of Uttar Pradesh, (2015) 16 SCC 715; Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Anr., AIR 2011 SC 3393. See also: Geeta v. Lt. Governor, 75 (1998) DLT 822;

62 Vibin P.V. v. State of Kerela, AIR 2013 Ker 67.

63 See: Inder Singh v. State of Punjab, (1995) 3 SCC 702; Malkiat Singh v. State of U.P., (1998) 9 SCC 351; Ajab Singh v. State of Uttar Pradesh, (2000) 3 SCC 521; and Munshi Singh Gautam v. State of MP (2005) 9 SCC 631.

64 (2014) 7 SCC 716; see also: State of Orissa v. Duleshwar Barik, 2017 (I) OLR 824; Gopal Ramdas Sheyte v. State of Maharashtra, Judgement dated 5 May 2017 in Criminal Writ Petition No. 3960 of 2015.

65 "There Must Be a Price to Pay for Wrongful Convictions" The Wire, 30 August 2016.

Available at: (Last Accessed: 30 July 2018)

66 I (2018) CCR 482 (Del.).

67 Kamla Devi v. Govt. of NCT of Delhi, 114 (2004) DLT 57; Ashok Sharma v. Union of India, 2009 ACJ 1063; Prempal & Ors. v. The Commissioner of Police & Ors, (2010) ILR 4 Delhi 416; Neema Goyal v. Union of India, 2011 (125) DRJ 273.

68 Rudal Sah (supra); Nilabati Behera (supra).

69 AIR 1962 SC 933.

70 AIR 1964 SC 1039.

71 Nilabati Behara (supra); D. K. Basu (supra); CERC v. Union of India (supra); People's Union for Civil Liberties (supra); Saheli, A Women's Resources center & Ors (supra); Consumer Education and Research Center & Ors. (supra).

72 AIR 1980 Pat 267.

73 State of Madhya Pradesh v. Saheb Dattamal & Ors., AIR 1967 MP 246; State of Orissa v. Padmalochan Panda, AIR 1975 Ori 41; State of Madhya Pradesh v. Chironji Lal, AIR 1981 MP 65; Roop Lal Abrol v. Union of India and Ors., AIR 1972 J&K 22; State of Madhya Pradesh v. Premabai and Ors., AIR 1979 MP 85.

74 Ibid.

75 Pasupuleti Ramdoss v. Emperor, 1911 MWN 64.

76 Krishna Govind Patil v. The State of Maharashtra, AIR 1973 SC 138. See also: Dattajirao Bhausaheb Patil v. The State of Maharashtra, (1971) 3 SCC 410; Woodfall (1770) 5 Burr. 2661.

77 Unique Case ID 02405R1310232005.

78 Inserted vide the Criminal Law (Amendment) Act, 2013 with retrospective effect from 3 February 2013.

79 Vide: Bharatbhai Chandubhai Gadhia v. State of Gujarat, High Court of Gujarat,Order dated 19 March 2014 in R/SCR.A/951/2014. See also: Jagdeo & Ors. v. The State of Maharshtra & Ors., 2017 (2) BomCR (Cri) 832.

80 Vide: Ashfaq Ahmed, 1981 All LJ 871

81 (1963) Supp 2 SCR 38

82 See also: Sohan Lal v. State of Punjab, High Court of Punjab & Haryana Order dated 24 March 2011 in Crl. Revision No. 31 of 2011.

83 Vide: Narapareddi Seshareddi (in re:), (1938) 39 Cr LJ 875

84 Vide: Kodali Puranchandra Rao v. Public Prosecutor, A.P., AIR 1975 SC 1925; see also: Ram Narain, 1980 Cri LJn (NOC) 55 All.

85 See: Narayan Babaji, (1872) 9 BHC 346.

86 Sita Ram Chandu Lall v. Malikar Singh, AIR 1956 Pep 30; Narayan Babaji (1872) 9 BHC 346; Smt. Priya Dubey v. The State of Jharkhand, High Court of Jharkhand Order dated 13 November 2013 in Cr. M.P. No. 1146 of 2010.

87 T.K. Appu Nair v. Earnest & Ors., AIR 1967 Mad 262.

88 Afzalur Rahman & Ors. v. Emperor, AIR 1943 FC 18.

89 Vide: Amarsingh Jetha, (1885) 10 Bom 506. See also: Beharry Singh, (1867) 7 WR (Cr) 3.

90 Sita Ram Chandu Lall v. Malkiat Singh, AIR 1956 Pep 30. 91 Vide: Mansharam Gianchand and Anr. v. Emperor, AIR 1941 Sind 36. In this case a Sub-inspector who wrongfully confined certain persons on charges of gambling to extort money on threat of prosecution that he knew to be false, was held guilty under section 220, IPC.

92 AIR 1959 SC 843.

93 Vide: Ashiq Mahomed v. Emperor, AIR 1936 Lah 330.

94 Ashiq Mahomed (supra); Police padding evidence to establish a charge where evidence is otherwise weak is flagrant fabrication under section 192, IPC. (Vide: State of M.P. v. Babulal Ramratan & Ors., AIR 1958 MP 55).

95Vide: Darshan Singh, 1985 CrLJ NOC 71 (P&H).

96 Vide: Nabodeep Chinder Sirkar, (1869) 11 WR (Cr) 2.

97 Kapoor R. P. v. Pratap Singh Kairon, AIR 1966 All 66.

98 See: State v. Bala Prasad, AIR 1952 Raj 142, the Court observed that the term 'false charge' is not giving of false evidence by a prosecution witness against an accused during the course of a criminal trial, it refers to a criminal accusation that sets in motion the process of a criminal investigation.

99 Jitendra (in jail) v. State of U.P., 2000 Cri LJ 3087 (All).

100 Rhedoy Nath Biswas, (1865) 2 WR (Cr) 44.

101 Thakur Tewary, (1900) 4 CWN 347.

102 Boaler, (1914) 1 KB 122.

103 Nanhkoo Mahton v. Emperor, AIR 1936 Pat 358.

104 The term 'offence' as used here is not only limited to the offences under IPC, but also includes offence under any special or local laws.

105 AIR 1964 SC 1173.

106 Dasrathi Mandal v. Hari Das, AIR 1959 Cal 293.

107 Jamoona (1881) 6 Cal 620; Brajobashi Panda (1908) 13 CWN 398.

108 Murad (1893) PR No. 29 of 1894; See also: Badri Prasad Sharma v. Shanti Prasad Sharma, 1982 A Cr R 9; Ahmed Kutty (1963) 1 Cri LJ 597 (ker.); Mirza Hassan Mirza v. Mussammat Mahbuban (1913) 18 CWN 391; Chidda (1871) 3 N.W.P. 327.

109 AIR 1973 SC 2190.

110 Delhi High Court Order dated 22 November 2012 in Criminal Appeal Nos. 948, 949, 950 and 951 of 2010.

111 138 (2007) DLT 759.

112 AIR 2016 SC 2461.

113 "Framed, Damned, Acquitted: Dossiers of 'Very' Special Cell". A Report by Jamia Teachers' Solidarity Association (2012). Available at: Damned-and-Acquitted-Dossiers-of-a-Very-Special-Cell.pdf (Last Accessed: 16 August 2018).

114 Ibid.

115 Jaysingh Wadhu Singh v. State of Maharashtra, 2001 CrLJ 456 (Bom).

116 Nagraj v. State of Mysore, AIR 1964 SC 269, the Supreme Court held that under Section 132, if the accused police officer is able to establish that he attempted to disperse the unlawful assembly and that he used force only on the failure of such attempt, then he gets protection under Section 132, CrPC.

117 (2012) 3 SCC 64.

118 Baijnath v. State of Madhya Pradesh, AIR 1996 SC 220; Balbir Singh v. D.N. Kadian, AIR 1986 SC 345; S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841; Matajog Dubey v. H.C Bhari, AIR 1956 SC 44; Amrik Singh v. State of PEPSU, AIR 1955 SC 309.

119 AIR 1960 SC 745.

120 H. H. B. Gill v. The King, AIR 1948 PC 128, the Court observed that a public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to be within the scope of his official duty.

121 AIR 2000 SC 2952, a defence was raised by the police officers under Section 64 of the Kerala Police Act wherein there are procedural safeguards against initiation of legal proceedings against police officers acting in good faith in pursuance of any duty imposed or authority conferred by the State, the Court considered this provision to be based on the rationale of Section 197 of the CrPC.

122 See also: S.S. Khandwala (I.P.S.) Addl. D.G.P. & Ors v. State of Gujarat, (2003) 1 GLR 802, the Gujarat High Court held that the accused police officers would not get the protection under Section 197 because their acts of torture were clearly outside the scope of their official duty.

123 (2015) 1 SCC 513.

124 See also: Shambhoo Nath Misra v. State of U.P. & Ors., (1997) 5 SCC 326.

125 (1996) 1 UPLBEC 461, this case involved mass human rights violations including firing by the police and paramilitary forces on an assembly of protestors, resulting in the loss of many lives, mass scale molestation and rape, illegal detentions and incarceration of large number of persons. See also: H. H. B Gill (supra); Amrik Singh v. State of PEPSU, AIR 1955 SC 309; Matajog Dubey v. H.C Bhari, AIR 1956 SC 44; Balbir Singh v. D.N. Kadian, AIR 1986 SC 345.

126"Accountability for The Indian Police: Creating An External Complaints Agency". Human Rights Law Network (August 2009). Available at: (Last Accessed: 10 August 2018). See also: "Torture in India 2011'. Asian Centre for Human Rights (November 2011).

Available at: (Last Accessed: 11 August, 2018)

127 AIR 1964 SC 703; see also: In the Matter of: K, a Judicial Officer, (2001) 3 SCC 54; Amar Pal Singh v. State of UP, AIR 2012 SC 1995.

128 Mallappa v. Veerabasappa & Ors., 1977 CriLJ 1856 (Kant.)

129 See: Dayal Singh & Ors. v. State of Uttaranchal, AIR 2012 SC 3046, the Supreme Court in this case directed the concerned authority to initiate disciplinary proceedings against a police officer even if such officer had retired, for dereliction of duty or misconduct in investigation. See also: Karan Singh v. State of Haryana & Anr., AIR 2013 SC 2348.

130 Ramanuj Pandey v. The State of M.P. & Ors., (2009) 7 SCC 248; B.C. Chaturvedi v. Union of India, AIR 1996 SC 484

131 "Guidelines on Procedure to be followed in case of Death during Police Action". National Human Rights Commission. (May, 2010). Available at: tion.pdf (Last Accessed: 10 August 2018); see also: "On Custodial Deaths/Rapes".

National Human Rights Commission. (December, 1993). Available at: (Last Accessed: 10 August 2018).

132 This status is as of 14 March 2017. "Annual Report 2015-2016". National Human Rights Commission. (June 2017). Available at (Last Accessed: 11 August 2018). Further, as of 14 March 2017, a total of 437 of Commission's recommendations for compensation/disciplinary action against the errant public servants remained not complied with, out of which, while 299 cases were pertaining to the year 2015-2016, 66 cases were pertaining to the year 2014-2015, and 72 cases were pertaining to the years 2008-2009 to 2013-2014.

133 Article 14(6), ICCPR (supra).

134 This was corroborated by the recent judgment of the US Supreme Court in Maryland v. King, 133 S. Ct. 1958 (2013), wherein it was held that officers making an arrest for a serious offence are authorized to take and analyse a cheek swab of the arrestee's DNA and the same is legitimate under the Fourth Constitutional Amendment. See: Law Commission of India, Report No. 271 "Human DNA Profiling - A draft Bill for the Use and Regulation of DNA-Based Technology" (2017).

135 See: Adambhai Sulemanbhai Ajmeri (supra); and Mohd. Jalees Ansari & Ors,(supra).

136 CC No. 39/2016 (Unique Case ID No.: DLST010000112003) in the Court of Savita Rao, Spl. Judge, (PC Act) CBI01, (South) Saket Courts: New Delhi.

137 "For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence since the damning finger and opprobrious eyes of society draw no difference between the two.", the Supreme Court in Thana Singh v. Central Bureau Of Narcotics (supra).

138 See: "1st Peoples' Tribunal on Innocent Acquitted, Report of the Jury, Towards a Framework for Compensation & Rehabilitation for Victims of Wrongful Prosecution/ Conviction". Innocence Network India (October 2016). Available at: bunal%20-%20Jury%20Report.pdf) (Last Accessed on 25 July 2018).

139 Rudal Sah (supra).

140 Dr. Rini Johar (supra).

141 D. K. Basu (supra); See also: '1st Peoples' Tribunal on Innocent Acquitted, Report of the Jury, Towards a Framework for Compensation & Rehabilitation for Victims of Wrongful Prosecution/ Conviction', Innocence Network India (October 2016); Available at: bunal%20-%20Jury%20Report.pdf). Last Accessed on 25 July 2018.

142 Criminal Appeal No. 812 of 2008.

143 Criminal Appeal No. 866 of 2008.

144 R. P. Kapoor v. Pratap Singh Kairon, AIR 1966 All 66.

145 Mohammad Amin v. Jogendra Kumar, AIR 1947 PC 106.

146 "Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.": Section 52, IPC.

147 S.K. Sundaram, AIR 2001 SC 2374; Black's Law Dictionary explains 'reasonable care' as "such a degree of care, precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject matter and the circumstances surrounding the transaction. It is such care as an

148 Bux Soo Meah Chowdry, AIR 1938 Rang 350; see also: Harbhajan Singh v. State of Punjab & Anr., AIR 1966 SC 97. ordinary prudent person would exercise under the conditions existing at the time he is called upon to act." (Black's Law Dictionary (8th ed. 2004).

149 See: Mahesh Dattatray Thirthakar v. State of Maharashtra, AIR 2009 SC 2238; State of Rajasthan v. Netrapal, (2007) 4 SCC 45; and Sarjudas v. State of Gujarat, AIR 2000 SC 403.

150 Gulabchand v. Kudilal, AIR 1966 SC 1734. See also: Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534.

151 See: U.P. State Road Transport Corporation v. State of U.P., 2000 All LJ 1461.

152 "When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.": Management of Reserve Bank of India v. Bhopal Singh Panchal, (1994) 1 SCC 541. See also: Baljinder Pal Kaur v. State of Punjab, (2016) 1 SCC 671; Deputy Inspector General of Police and Anr. v. S. Samuthiram, (2013) 1 SCC 598; and Commissioner of Police New Delhi v. Mehar Singh, (2013) 7 SCC 685.

153 B.R. Kapur v. State of Tamil Nadu & Ors., AIR 2001 SC 3435; and Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547.

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