Law Commission Submits Report on “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” (Download PDF)

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Law Commission of India has submitted its 277th report to Union Govt. Report is titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”. Subject came to be considered by Law Commission after Delhi High Court raised concerns over wrongful prosecution & incarceration, & lack of legislative framework to ensure that victims receive justice.

Image of Brief of Law Commission of India

Image of Brief of Law Commission of India

Image of Brief of Law Commission of India

  • Recommendations of report focus on clarifying what wrongful prosecution is, when it can be referred to as miscarriage of justice, & what remedies/compensation victim is entitled to.

  • All principles are articulated into amendment bill to Code of Criminal Procedure.

Special Courts for Adjudicate Claims of Wrongful Prosecution

  • Special courts be set up in every district to adjudicate claims of wrongful prosecution.

  • Applicant would be able to choose b/w such special court having jurisdiction over territory w/i which prosecution occurred, or court having territorial jurisdiction over place of residence of applicant.

  • Such courts will be empowered to issue directions to concerned authorities to take action against errant officials & to award compensation in fit cases.

  • Period of limitation be applied for filing of such applications, their disposal, payment of compensation, & for filing of appeal against order of designated special court.

Provisions for Wrongful Prosecution

  • Commission has recommended that prosecution can be termed wrongful if it was malicious or not instituted in good faith.

  • Wrongful prosecution can be termed malicious if it was instituted & prosecuted despite fact that standards of reasonableness established it was not fit case for trial.

  • Prosecution instituted negligently & w/o due care would constitute prosecution not instituted in good faith.

  • Prosecutions conducted either w/o bonafides or maliciously would entitle applicant to compensation.

  • Burden of proof to prove misconduct will rest w/applicant.

Who Can Apply for Claims of Wrongful Prosecution

  • Any person who was “wrongfully prosecuted” & suffered damage to body, mind, reputation or property can apply for compensation.

  • Legal heirs or representatives of accused who died after termination of such prosecution can apply.

Compensation for Wrongful Prosecution

  • While report acknowledges that fixed compensation is not feasible, it envisages both pecuniary & non-pecuniary compensation & recommends that statutory framework that helps guide special courts in determining compensation be established.

  • Non-pecuniary compensation is awarded, in form of services such as vocational training, counselling for psychological trauma, & broadly anything that will assist applicant in re-integrating into society.

  • Special emphasis has been placed on removing disqualifications that are attached to conviction, particularly pertaining to education & employment.

Law Commission of India

  • India’s 1st Law Commission was established in 1834 via Charter Act of 1833 under Chairmanship of Lord Macaulay.

  • Law Commission of India is neither constitutional body nor statutory body.

  • It is truly ad hoc & advisory body whose work is to do research & make recommendations for law reforms such as amendments & updations of prevalent & inherited laws. None of these recommendations is binding upon Govt.

  • It is convention that retired judge of Supreme Court heads India’s Law Commission. States can constitute their own law commissions.

  • Commission is headed by full-time Chairperson.

  • It membership primarily comprises legal experts, who are entrusted mandate by Govt.

  • 21st Law commission would be comprised of:

  • Full-time Chairperson

  • 4 full-time Members (including Member-Secretary)

  • Secretary, Department of Legal Affairs as ex offcio Member

  • Secretary, Legislative Department as ex offcio Member

  • Not more than 5 part-time Members

- Published/Last Modified on: September 30, 2018

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