The Weekly Obiter


September 21, 2018

The Law Commission of India has submitted its 277th report to the Union Government. The Report is titled as Wrongful Prosecution (Miscarriage of Justice) :Legal Remedies.
The subject came to be considered by the Law Commission after the Delhi High Court raised concerns over wrongful prosecution and incarceration, and the lack of a legislative framework to ensure that the victims receive justice. The recommendations of the report focus on clarifying what wrongful prosecution is; when it can be referred to as a miscarriage of justice; and what remedies/compensation a victim is en-titled to. All of these principles have been articulated into an amendment bill to the Code of Criminal Procedure. Other important recommendations include:

SPECIAL COURTS: Significant recommendation is that special courts be set up in every district to ad-judicate claims of wrongful prosecution. An applicant would be able to choose between such a special court having jurisdiction over the territory within which prosecution occurred, or a court having territorial jurisdiction over the place of residence of the applicant.

WRONGFUL POSSESSION: The Commission has recommended that a prosecution can be termed wrongful if it was malicious or not instituted in good faith. A wrongful prosecution can be termed malicious if it was instituted and prosecuted despite the fact that standards of reasonableness established it was not a fit case for trial.

WHO CAN APPLY: Any person who was “wrongfully prosecuted” and suffered damage to body, mind, reputation or property can apply for compensation including legal heirs or representatives of an accused.

COMPENSATION: While the report acknowledges that a fixed compensation is not feasible, it envisages both pecuniary and non-pecuniary compensation and recommends that a statutory framework that helps guide special courts in determining compensation be established. Special emphasis has also been placed on removing disqualifications that are attached to a conviction, particularly pertaining to education and employment.