WRONGFUL PROSECUTION

(MISCARRIAGE OF JUSTICE): LEGAL

REMEDIES

Anushrut singh rajawat

Ankit gupta
Devesh Pratap singh
WRONGFUL PROSECUTION

 the tort of initiating a criminal prosecution or civil suit against another party with malice and without
probable cause also : an action for damages based on this tort brought after termination of the
proceedings in favor of the party seeking damages.
 Article 21 of the Constitution of India Constitution confers, on every person, the fundamental rights of
life and personal liberty. As per this Article, "No person shall be deprived of his life or personal liberty
except according to procedure established by law.“
 Despite this, instances of malicious prosecution/ conviction and wrongful incarceration of innocent
persons are quite common. In all such cases, individuals who are wrongfully prosecuted, implicated and
incarcerated for several precious years of their lives, even on an honorable acquittal, have not much to
gain.
 Courts in India have often expressed their concerns on the pitiable conditions of the under trial
prisoners and in appropriate cases, to an extent, compensated for the wrong done to such victims of
malicious and wrongful prosecution, detention and conviction.
 there is no uniform mechanism which ensures remedy in all such instances of "miscarriage of justice".
 Article 14(6) of the International Covenant on Civil and Political Rights ("ICCPR") confers right on
victims of wrongful conviction, which is subsequently reversed or pardoned on discovery of facts
establishing conclusively that there has been miscarriage of justice, to be compensated according to law.
 Several counties throughout the world have converted their commitment under Article 14(6) ICCPR
into law by either verbatim adoption of the said Article under their domestic legislation, or by
conferring discretion on administrative or judicial bodies to determine whether or not to award
compensation, or by utilizing general power of the domestic government to make ex-gratia payment.
 India, despite ratifying ICCPR, has till date failed to provide any domestic legislation for rehabilitation
and compensation of victims of wrongful/ malicious prosecution and incarceration.
REPORT BY LAW COMMISSION

 The victims are left to rely on limited remedies available to them under the exiting legal
framework. Therefore, relief may be sought by filing a suit for damages for the tort of
malicious prosecution or by invoking provisions under the criminal law.
 Indian Courts, have also exercised their Writ and Inherent Jurisdiction by granting
compensation to such victims in appropriate cases.
 However, experiences have shown that such remedies have remained episodic and often
proved grossly inadequate to cater to the requirements of all situations.
 The Hon'ble High Court of Delhi, in Babloo Chauhan v. State Government of NCT of
Delhi, 247 (2018) DLT 31, while acknowledging the inadequacy of legislative framework
for providing relief to the victims of wrongful prosecution and incarceration, requested the
Law Commission of India ("Law Commission") to "undertake a comprehensive
examination of the issue..." 
 after extensive examination, the Law Commission submitted its Report titled as, "Wrongful Prosecution
(Miscarriage of Justice): Legal Remedy" ("Report") to the Government of India for its consideration.
certain amendment to the Code of Criminal Procedure, 1973 ("CrPC/ Code") have also been suggested
in the said Report.
 As per the Law Commission, the standard of miscarriage of justice provided under Article 14(6) of the
ICCPR is insufficient to overcome the shortcoming of the criminal justice system in India.
 Law Commission has acknowledged that such limited definition would fail to cater to all situations.
Commission opined that a situation where, though, the victim is finally acquitted, however, had to
undergo illegal and wrongful detention, torture in police custody, long incarceration, etc. is not covered
under the limited parameters provided under this Article.
 Law Commission has further acknowledged that limited technical advancement and lack of zeal of
investigative agencies hardly leaves any scope of discovery of "new facts proving factual innocence of
the convict".
 Therefore, the Law Commission has proposed that the standard to determine "miscarriage of justice" in
India should be of wrongful prosecution. As per the Law Commission, "the standard of wrongful
prosecution should be the most effective for identifying the cases of miscarriage of justice as it directly
targets procedural and prosecutorial misconduct, which appears to be one of the primary sources of
factual errors that results in innocent people being held guilty of offences they did not commit."
LANDMARK JUDGEMENTS

 Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31- The Delhi
High Court, in the case of Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018)
DLT 31, expressed grave concern about wrongful prosecution and incarceration of innocent persons,
highlighting the need for a legislative framework for providing relief to such persons. An effective response
from the State to the victims of miscarriage of justice resulting in wrongful prosecutions is lacking in the
criminal justice system in the country, as it stands today. Also there is no statutory or legal scheme
articulating State’s response on the issue. Therefore, the Court directed the Law Commission to undertake a
comprehensive examination of the issue and make its recommendations to the Government of India.
 Bibhabati Devi v. Ramendra Narayan Roy, (1947) 49 BOMLR 246- Bombay High Court in Bibhabati Devi
v. Ramendra Narayan Roy, (1947) 49 BOMLR 246 has held, "...That miscarriage of justice means such a
departure from the rules which permeate all judicial procedure as to make that which happened not in the
proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure
must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or
it may be the neglect of some principle of law or procedure, whose application will have the same effect."
CONCLUSION
 The recommendations made in the Report have not yet been incorporated under the statute. However,
they certainly show the way ahead. India, being a welfare State needs to take progressive steps towards
emancipation of the victims of injustice. It is travesty of justice if the society and State continues its
apathy towards its fellow beings, penalizing and stigmatizing them for offences never committed by
them. Indian justice system works on the maxim, "Ubi jus ibi remidium". Though, absence of remedy is
no justification for non-protection of individual's rights, however, statutory provisions do form a guiding
framework for the justice system to work. Substantial time has lapsed in the absence of statutory
provision for protection of victims of wrongful prosecution. It is high time that State stopped
disregarding the plight of such victims of wrongful prosecution. State can further no longer shy away
from its responsibility to provide compensatory and rehabilitative measures to the victims of such
"miscarriage of justice'. It is only when that the State fulfills its commitment towards its nationals, who
have been subjected to injustice in the name of law, it can truly claim itself to be a welfare State. Clearly,
the principle running at the core of justice is "Innocent until proven guilty" and not vice versa.