A malicious and willful act on the part of an investigating officer must be viewed very seriously
A malicious and willful act on the part of an investigating officer must be viewed very seriously
In October 2021, actor Shah Rukh Khan’s son Aryan Khan was arrested by the Narcotics Control Bureau in Mumbai in a drug racket case. Now after several turns in this case, on 28 May, a Special Investigation Team in Delhi gave clean chit to him and five others. The Aryan Khan case, apart from highlighting the suffering of him and his family, also focused on the countless victims of malicious prosecution, many of whom are resourceless. In a conversation moderated by Sonam Sehgal, Madan B Lokuri And Meeran Chadha Borwankar Discuss whether compensation should be given to those implicated in false cases. Among other things, they discuss the reasons for wrongful and malicious prosecution, the role of investigating officers and agencies with the judiciary and whether India needs a new law to decide on the quantum of compensation. Edited excerpt:
We are seeing a lot of innocent people getting booked up fast. Why do enforcement agencies arrest and accuse wrong people?
Madan Lokur: I would like to distinguish between someone who has been falsely implicated and someone who is implicated but ultimately acquitted, either for lack of evidence or for some other reason. In Aryan Khan’s case, as appears from newspaper reports and certain statements, there was actually no reason to arrest him and keep him in custody for almost a month. It is okay for the investigating officer to say, ‘We are still investigating’, but there must be some basis for the investigation. Otherwise, tomorrow they can pick up someone and say, we think this person is a terrorist, we are investigating, and let that person stay in jail until we complete our investigation. There is no doubt in my mind that Aryan Khan has been falsely implicated, and hence, he should be compensated.
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There are many reasons why compensation should be given to a person having false implication if there has been a physical discomfort of being in prison because the person has been in prison for many years. You have to consider the fact that our justice delivery system is very slow. There are instances where individuals have spent eight, 10 or more years under trial. Then there is a mental trauma that not only a person, but his family and children also go through. There is social stigma. In a village where people do not know each other closely, but they do know who is, the family of the false accuser is excommunicated. This may not be the case in a big city like Mumbai or Delhi. Children are also suffering. Can you imagine a child who is going to school and the teacher or any other child says that this boy’s father is a terrorist and he is in jail. It is bound to have an effect on the child. It is important to look at the mental health, emotional health of not only the individual, but also the family.
Meeran Borwankar: Any case of willful, willful arrest or booking of a person in a criminal case must be compensated. But I would also like to add, when an agency arrests a person, it is only for 24 hours, and then that person is produced in court. So it is not only the enforcement agencies, it is also the judicial mind which is implemented within 24 hours. If the judicial officer feels or feels that the investigating agency does not have sufficient evidence or is clearly going wrong, he should not hand over the custody to the agency or the prison. It usually takes six to eight years for a case to be concluded in India. You have a financial, social and emotional burden of being involved in a crime for which you must be compensated if you have been falsely accused or prosecuted as malicious.
Having said that, would it be fair to say that a false prosecution stems from a malicious investigation that operates on bias and prejudice?
Meeran Borwankar: Maybe not always. I was once involved in the investigation of a murder case, which later turned out to be a case of suicide. Therefore, sometimes real mistakes can happen. But a malicious and willful act on the part of an investigating officer must be viewed very seriously.
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Madan Lokur: It may be and it may not be. Nowadays many cases of sedition are coming to the fore. In the case of a harmless tweet, prosecutors accuse the person of something as serious as treason – here it is clearly malicious. Another example is Section 66A (punishment for sending objectionable messages through communication service etc.) of the Information Technology Act which has been declared unconstitutional by the Supreme Court (in 2015). But even after that still a few thousand cases have been registered. How can the prosecution ever justify it? The judiciary also has a huge responsibility. The judiciary also has to be mindful of the fact that this is just a simple tweet and no one is trying to topple the government. So the judge should say, ‘Why accuse that person of treason’ and ‘I don’t agree with that’. Similarly, with Section 66A, the judge must ask, ‘Why have you filed a case under a provision which has been declared unconstitutional?’ Both the prosecution and the judiciary have to be very, very careful about this. Because at the end of the day, if the prosecution is not able to prove its case beyond a reasonable doubt, which is a standard of evidence that requires, then one can come to the conclusion that the prosecution has malicious intent.
The Law Commission in its Report No. 277, titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, has recommended the enactment of a specific legal provision, covering substantive and procedural aspects, for redressal of such cases. has gone. How do you think we can calculate compensation?
Madan Lokur: I can’t answer without thinking. But there must be some way to do it. First, you have to accept the fact that there is compensation to be given, then comes the calculation. There have been examples. In the case of scientist Nambi Narayanan (he was acquitted by the Kerala Police 24 years after he was arrested in a fabricated espionage case), the Supreme Court awarded him 50 lakhs as compensation (in 2018). The Delhi High Court has held on several occasions that compensation should be given for the person being kept in jail even though he is entitled to bail and all papers are in order. So, there are a lot of factors which point towards the fact that compensation should be given.
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Meeran Borwankar: Compensation is an extreme, which means we have come to the conclusion that this is a case of malicious prosecution. But we can also exercise moderation; For example, more professional investigations by senior officers of enforcement agencies. In Aryan Khan’s case, a senior officer could have made up his mind and might have advised overzealous officers on the professional lines of the investigation. The second role is that of prosecutors, as they are neither with the police nor with the investigative agencies; They are independent officers of the court. Therefore, when the investigating agency or police is saying that a person is involved, and wants his custody, prosecutors can also tell the enforcement agencies that they are wrong; That their case is not strong, so they should not seek custody. But sometimes, I can say from experience, agencies and investigators get very upset with the idea that if we don’t show the arrest of someone who is a very influential person or a child of an influential person, then by the media. Adverse feedback will be drawn. and by citizens. Therefore, agencies sometimes err on the side of arrest; Judicial application of prosecutor’s role and mind will help against error of judgment in prosecuting a person.
As seen in the case of Nambi Narayanan, we know that constitutional courts can exercise their vast powers in awarding compensation, but there is also a remedy for civil suit filed by the victim or family members. But it is time consuming. Do you think India needs a new law to ensure distribution of compensation?
Madan Lokur: I think we should definitely legislate on this, so that there is no ad hoc. It is possible that a court in a small state may think that paying someone ₹5 lakh as compensation is a good idea, but a high court in a large state may say, ₹5 lakh? It is nothing, we should give at least ₹10 lakh. Therefore we need a standard which can be prescribed by law for determination of compensation. You have a motor accident death case, where the Motor Accident Claims Tribunal says ₹5 lakh is enough, but the High Court can say no, it’s too low, it should be ₹7.5 lakh and the Supreme Court says May be it should be ₹ 10 lakhs. Similarly, in land acquisition cases, as seen earlier, the Collector will give some amount, the High Court will double it, the Supreme Court will do it two and a half times or three times more. Therefore, there are principles on the basis of which compensation can be determined and is being determined not only in cases of motor accident, but also in cases of land acquisition. I think it’s a good idea in the long run if you have a law on this aspect.
Meeran Borwankar: Yes, I agree with Justice Lokur but I would like to add that Section 211 of the Indian Penal Code deals with false allegation of offense committed with intent to cause hurt. It can be punished with imprisonment of either description for a term which may extend to two years or up to seven years. I think this section is valid for malicious prosecutions, but more legislation for compensation would be a welcome move.
Given that the fundamental rights of a person falsely implicated are violated and violated, do you think the state should have some legal or statutory responsibility?
Madan Lokur: Yes, should. One of the consequences of not complying with that responsibility is compensation. or it may be punishment in any other form; There may be departmental inquiry against the guilty officer or he may be dismissed from service.
Meeran Borwankar: I also feel that if the judicial officer, at the time of trial, if not earlier, comes to the conclusion that the prosecution’s case is false, it may distinguish between genuine error or malafide and the court may pass an order for compensation. can. In case of wrongful imprisonment, the state should also take responsibility.
If the judicial officer feels or feels that the investigating agency does not have sufficient evidence or is clearly going wrong, he should not hand over the custody to the agency or the prison.
Meeran Chadha Borwankar is a retired Indian Police Service officer of Maharashtra cadre; Madan B. Lokur is a retired Supreme Court judge