Compensation for wrongful prosecution, incarceration and conviction

By S Sanal Kumar

Victims of crime and victims of administration of criminal justice – two distinct counter concepts in the justice delivery system - are always aching the judges, jurists, lawmen and laymen alike. Though the cries of the victim were not heeded hitherto, they are now gaining audibility with legislative interventions.

But for the hundreds of innocent persons, who are wrongfully prosecuted but later acquitted after years, our justice delivery system takes little pains to make amends. True that under the public law remedy, some isolated adjudications came by way of writ jurisdiction, but it failed to shape a set formula for development of this branch of compensation jurisdiction.

Article 21 of the Constitution says, `no person shall be deprived of his life and personal liberty except in accordance with procedure established by law’.

Personal liberty, sometimes an abstract concept for many, is not felt seriously by common man in its intrinsic value and essence till he confronts its negation.

When, for a moment, one is restrained in his movement ahead or confined in a room, the abstract concept of personal liberty starts painfully inflicting torments in the psyche. Now think about the innocent masses wrongfully prosecuted and incarcerated but later acquitted.

The loss of productive years of life, feeling of loss of freedom, the negation by society, damage to identity, dignity, and reputation, shame, fear etc. cause multiple psychic disorders for this hapless lot. The damage to health, loss of income, loss of property, litigation expenses, loss of family life, loss of opportunities for education and career progression, stigmatization etc add to this horrible count. Above all, the emotional and physiological harm caused to the family of accused takes unimaginable proportions given the stigma carried forward for generations.

Instances are not rare where marriage proposals get turned down for incarceration of kindred even in the ancestral line. True that at times, positive overtures in constitutional jurisdictions have addressed this issue. But still now no concrete judicial mechanism to have uniform application in cases of wrongful prosecution took shape in our jurisprudence to do some reparation.

The Delhi High Court in Babloo Chauhan @ Dabloo V. State Government of NCT speaking through Justice Dr S Muralidhar, directed the Law Commission to undertake a comprehensive examination of the issue of wrongful prosecution and suggest a mechanism for compensation and rehabilitation of victims of wrongful prosecution.

International Covenants

Article 14(6) of the International Covenant on Civil and Political Rights 1966 (ICCPR) delineates the obligation of States in cases of miscarriage of justice resulting from wrongful prosecutions.

It says "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."

Article 9(5) of the ICCPR further underscores this right by declaring that "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”.

The United Nations Human Rights Committee explained the obligations contained in Article 14 of ICCPR: “It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that payment is made within a reasonable period of time."

As nearly as 168 State parties, including India, have ratified ICCPR. But the incorporation of this international obligation into domestic legal frame work has been done only by a few countries.

The UK Experience

Criminal Justice Act 1988 is the statute in England following ratification of ICCPR by the United Kingdom.

Sections 133, 133A, 133B of the Act, in its combined synergy, provide for creation of a mechanism under the Secretary of State for determination and disbursement of compensation to victims of miscarriage of justice. A person who has suffered imprisonment consequent to wrongful conviction can approach the Secretary of State for Compensation if conviction is reversed or pardoned on the ground of miscarriage of justice.

The emergence of a new fact proving beyond reasonable doubt that the person has not committed the offence was the expanded version and norm for `miscarriage of justice’ under the UK Law.

But in 2011, in R (on the application of Adams) V. Secretary of State for Justice, the UK Supreme Court widened the scope of ‘miscarriage of justice and the notion of innocence’, by ruling that even those who cannot prove innocence beyond reasonable doubt also can lay claim for compensation.

The Criminal Cases Review Commission (CCRC) working in the UK undertakes the exercise of review of the cases with possibility of miscarriage of justice working in the criminal courts in the UK. It can gather field information related to a case and carry out its own investigation for finding out the real truth in a pending case or a disposed case and accordingly apply for review of conviction, if miscarriage is found out.

The UK Police Act 1996 makes the Chief Officer of Police liable in respect of any unlawful conduct of constables under his direction and control in the performance of functions, with clauses for payment of compensation. The distinguishing feature of UK compensation regime is that it fixes a compensation slab taking periods of imprisonment as bench marks to do full justice according to variables.

US Scenario

The United States Code deals with federal claims from persons unjustly convicted of an offence against the United States and imprisoned. Claimant is eligible for relief on grounds of pardon for innocence, reversal of conviction or of not being found guilty at a new trial or rehearing. The US Court of Federal Claims is the adjudicatory forum under the statute.

The length of incarceration is the yardstick or variable for the determination of compensation. All States in the US have their State laws providing for compensation to victims of wrongful prosecution. While some States lay down fixed amount of compensation to be paid depending on period of incarceration, others have given discretion to the forum to decide compensation based on individual fact dossiers.

In the State of Illinois, a tabular compensation formula based on period of incarceration is adopted. Non-monetary compensation is given for assisting victims in rehabilitation and reintegration into the society including transitional services like housing assistance, job training, assistance in terms of job search and placement services, referral to employees with job openings, physical and mental health services for enabling victims to reintegrate into society.

Other Common Wealth countries like Canada, New Zealand and Australia have infused ICCPR treaty obligations for compensation into their domestic jurisprudence by appropriate legislations.

Indian Law On Compensation

Victims of miscarriage of justice in India have remedies in private law, public law and criminal law, in spite of India lagging behind in its fulfillment of obligations under ICCPR.

In the absence of clear statutory frame work in consonance with the commitments under ICCPR, the Indian courts have paraphrased in its numerous decisions what actually is miscarriage of justice resulting from wrongful prosecution, particularly in its constitutional remedy jurisdictions.

Right to fair trial, an attribute of Article 21 of the Constitution, is the barometer for its forensic evaluation of wrongful prosecution. Journey from the Maneka Gandhi case to S Nambi Narayanan v. Siby Mathews & others marks the evolution of jurisprudence on violation of fundamental rights, particularly compensation for wrongful prosecutions.

The apex court as early as in 1983, while ordering compensation for illegal detention, observed in Rudul Shah vs State of Bihar: "one of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation."

Bhim Singh v. State of J&K was another case in the episodic judgments followed in the compensation jurisdiction, where for an illegal arrest and detention the Supreme Court awarded ₹50,000 as compensation to the sufferer.

Nilabati Behera v. State of Orissa 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. Consumer Education and Research Center & others V. Union of India reiterated the above principle.

However, a disappointing chord struck, when the Supreme Court rejected the plea for compensation for the accused who were in jail for a decade and more but were subsequently acquitted in Sulemenbhai Ajmeri & Ors. V. State of Gujarat, popularly called, Akshardham Temple Case.

In spite of the acquittal in the case being premised on perversity in the conduct of the prosecution right from investigation to conviction and sentence, many an eyebrow was raised when claim for compensation was denied by the apex court.

Private Law Remedy

Private Law Remedy for the tort of malicious prosecution is not an effective remedy for victims for the inherent improbability in its successful finale. Given the tardy pace of civil litigation and the expenses like court fees and other litigation costs involved, private law remedy sounds not meaningful and user friendly for the victims.

Prosecution of Errant Police Officers

Police Officers knowingly framing a person disregarding any direction of law, [Section 166 Indian Penal Code (IPC)] knowingly disobeying any direction of law regarding investigation [Section 166A(b)], framing or preparing documents to cause injury to any person (Section 167 IPC) invite criminal liability under Indian Penal Code.

Chapter XI of the IPC contains punishments for various offences affecting administration of justice. Every event of a wrongful prosecution takes within its act of commission various prosecutorial misdeeds like fabricating false evidence, (Section 193 IPC) giving false evidence (Section 191 IPC), giving false information as to the commission of offence (Section 203 IPC), destruction of exculpatory evidence (Section 204 IPC), malicious prosecution (Section 211 of IPC), corruptly or maliciously filing report (Section 219 of IPC), maliciously confining person (Section 220 IPC) etc.

Any possible act contributing to a wrongful prosecution can be dealt with on the criminal side for securing the conviction of erring state officials and private complainants launching malicious prosecutions as well. This enumeration of culpable conducts in Chapter IX and XI of IPC can be a handy indicia for constitutional courts and other civil courts to decide as to how a wrongful prosecution happens particularly in the context of deviation from the direction of laws relating to investigation, enquiry and trial.

277th Law Commission Report

With all candour, this author acknowledges that the data source for this article is 277th Law Commission Report. The Law Commission in its 277th Report recommended for a legal and statutory frame work for establishing a mechanism for adjudicating up on claims for wrongful prosecutions. Commission proposes a statutory obligation on the State to compensate the victims of wrongful prosecution with the right to be indemnified by the erring officers.

The proposal for establishment of special courts for speedy disposal of claims for compensation is another notable suggestion by the Commission.

A Draft Bill containing amendments to Code of criminal Procedure was annexed with the Report. The Bill seeks to incorporate definitions to `malicious prosecution’ and `wrongful prosecutions’, in addition to insertion of Chapter XXVII A containing procedural rules for laying claims. The definition of malicious prosecution as an "act of instituting the prosecution complained of without any existing reasonable or probable cause”, to a great extent dissuades police over zeal in sponsored prosecutions.

The all-encompassing narration of misdeeds constituting the act of 'wrongful prosecution' in the definition clause in the Bill is sufficient to ward off ambiguity in any form and provide clear pointers to the adjudicatory authority in deciding on the claim for compensation for wrongful prosecution.

Making false or incorrect record or document, making false statement before officer authorized to take evidence, giving false evidence, fabricating false evidence, suppression of exculpatory evidence, filing a false charge, committing a person to confinement etc. are instances of inculpatory misdemeanors leading to a wrongful prosecution, which fortunately find a distinctive place in the exhaustive definition given to ‘wrongful prosecution’ in the Draft Bill.

Constitution of Special Courts

Instead of creation of special courts to deal with claim for compensation as mooted by the Law Commission, pragmatism and convenience demand that the task may be done by the court acquitting the accused, be it trial, appellate or revisional court. Like the provision for compensation to victims of crime (Sections 357 and 357 A Code of Criminal Procedure), an empowering clause can be conferred on the court acquitting the accused, to decide on claims for compensation in a summary and speedy manner.

The acquitting court which evaluated the evidence is cognizant of all the events and records of the case which would enable it to decide instantaneously the compensation in a just, fair and reasonable manner. However, proposed law may not put cap on the quantum of compensation to be awarded for wrongful prosecutions. The 'no cap rule' for compensation under section 21 of the Protection of Women from Domestic Violence Act may act as a guiding clause.

The Madhya Pradesh High Court’s recent judgment to award compensation to a medical graduate who spent 13 years in jail on a charge of murder, while deciding his appeal against conviction is an excellent example of exercise of compensation jurisdiction in criminal appellate stage; instant justice is given to the victim by a common judgment of acquittal and compensation.

In Anilkumar AB v. State of Kerala assimilating to itself the trauma of wrongful detention in its adjudication, the Kerala High Court ordered compensation of ₹2,50,000 each to the petitioners who were detained wrongfully in a case under the Abkari Act.

The judgment rendered by Justice PV Kunjikrishnan is noteworthy for its poignant narration of pains of illegal detention with evolution of law of reparation in constitutional jurisprudence explained. But adjudication in constitutional jurisdictions appears to be a delayed process as the initial process of laying of claim itself can be done only after a judgment of acquittal by competent court. Hence, this course probably may not be opted by the victim already worn out in the long drawn ordeal of trial, thereby making the remedy illusory.

English jurist William Blackstone said ‘it is better that ten guilty persons escape than that one innocent suffer’.

A false accusation and the trauma that follows are imponderable events for any law court to compensate in terms of money. A virtual death occurs to the personhood of the individual arraigned in the process making it impossible for him to come back to ordinary life with order of acquittal.

The lost years of free life cannot be given back to or re-enacted to please him. He and his family suffer for the cause of administration of criminal justice. Cash for casualty has little role to purge the sovereign of this unpardonable sin; only constitution of a conscientious prosecuting agency committed to truth alone can be the propitiatory act to please the Goddess of Justice.

The writer is an advocate at the Kerala High Court.

Disclaimer: The views are of the author and do not necessarily reflect the views of Bar & Bench.