Redressal still a far cry

The last week saw a couple of instances in which it was noted with grave concern that the criminal justice system had gone wrong. In the first instance, the Supreme Court found that the former Isro scientist Nambi Narayanan was needlessly arrested and tortured, and the court ordered a compensation of Rs 50 lakh for this wrongful arrest and resultant loss of dignity and reputation. The second was the Law Commission of India’s report 277, on wrongful prosecution and miscarriage of justice, made on the reference of the Delhi High Court in Babloo Chauhan vs. State Government of NCT of Delhi.

While the Supreme Court’s ruling in the Nambi Narayanan case clearly indicts the State and acknowledges the rampant wrongful arrests in the country, the Law Commission for the first time brought the term ‘wrongful prosecution’ in the ambit of criminal jurisprudence in India.

This report not only acknowledges the reality of people being subjected to unnecessary arrests, prosecution and incarceration but also highlights the fact that the number of people behind bars and waiting for their trial to be completed is growing phenomenally.

The law panel report is the product of a concern the Delhi High Court expressed in Babloo Chauhan’s case, in which a person was arrested in connection with a murder case and found guilty by the lower court. While in incarceration, he preferred an appeal against this order in the Delhi High Court and was eventually found not guilty.

However, a couple of years had already elapsed in this process and his arrest automatically became wrongful. This situation arose on account of non-application of suspension of sentence under Section 389 of the Criminal Procedure Code, which lays down the law relating to suspension of sentence when an appeal is pending and states that the appellant may be released on bail under these circumstances.

While acting as amicus in this case, I felt that such incarceration makes people who eventually are exonerated vulnerable to serious victimisation of all kinds. They not only lose their employment and family life but also suffer serious stigma on their return to their community, as having spent a sizable time in prison makes society look at them with disdain. This is tantamount to a kind of ‘secondary victimisation’ for them, where they and their family face tremendous rejection in several walks of life

A similar situation was faced by Adam Bhai, in the Akshardham case, in which the Supreme Court found him not guilty, but when he sought to return home, he found that he had lost everything. Shockingly, his separate petition to seek compensation for wrongful arrest was rejected by the Supreme Court.

In the amicus report before the Delhi High Court, I made a fervent plea to demystify the matter and develop a compensation scheme for wrongfully prosecuted people in the country. On the reference of the Delhi High Court to the Law Commission, the report is now available. While it serves a useful purpose, it also suffers from certain drawbacks.

Law panel report

The Law Commission’s report recommended several changes in the criminal procedure code to provide relief to person who have been wrongfully prosecuted. The report is commendable in respect of the fact that it suggests an elaborate scheme of compensation to such persons by amending Section 365 of the CrPC. It has created Section 365 (A to I) to provide a framework for such compensation.

The Law Commission says that ‘wrongful prosecution’ means malicious prosecution where a person has been implicated by manipulating and fabricating evidence (Section 2xa). However, this creates some confusion as all wrongful prosecution may not be malicious. In many cases, even when law enforcement agencies may be acting in a bonafide manner, technical errors may cause wrongful prosecution.

Moreover, the report is conspicuously silent on the issue of suspension of sentence as provided in Section 389 of CrPC. In fact, the original question in Babloo Chauhan case was the issue of him having suffered incarceration on account of non-suspension of sentence.

Non-suspension of sentence by the court may not be always malicious, though it results in undesirable imprisonment when the person who was convicted by the lower court is found not guilty by a higher court in the event of appeal against the conviction. There are a large number of people in our prisons whose imprisonment becomes wrongful in this sense.

As regards compensation, the Law Commission recommends compensation to be awarded by a specially constituted court in case wrongful incarceration exceeding six months occurs. The compensation will be determined based on both pecuniary and non-pecuniary considerations. The application for compensation under Section 365(a) will be disposed within one year. The arrangement of interim compensation is also provided for. The quantum of punishment (for wrongful prosecution) would be decided based on as many as 10 factors under Section 365(e), which include seriousness of offence, damage, loss of family life, harm to reputation, psychological consequences, etc.

The Law Commission attempts to address the issue of stigma suffered by exonerated persons and provides under Section 365(c) that such people will not suffer any kind of disqualification on account of such wrongful prosecution.

(The author is Professor & Chairperson, Centre for Criminology & Victimology at National Law University, Delhi. He was appointed Amicus Curiae before the Delhi High Court in the case that became the basis of the 277th Law Commission report)