It is definitely a matter of grave concern that none other than the Allahabad High Court which is the largest High Court in the whole world in a most sensational, shocking, stinging and sagacious observation in a most notable judgment titled Upendra @ Balveer v. State of Uttar Pradesh in Criminal Appeal Case No. 60 of 2011 and cited in Neutral Citation No. – 2024:AHC:172173-DB that was reserved on 23.09.2024 and then was finally delivered on 25.10.2024 has minced just no words to observe in no uncertain terms that trial courts often convict innocent persons for career prospects! It must be noted that the Court while observing so very commendably urged the Centre to adopt the Law Commission’s suggestion to introduce a law to provide compensation to those who are wrongly prosecuted in criminal cases upon noting that trial court judges sometimes convict innocent persons only to save face or protect career prospects.”. We need to also note that the High Court opined that he should be awarded heavy compensation but in the same vein also noted that a proper legal framework to award such compensation is not in place.
At the very outset, this noteworthy judgment authored by Hon’ble Mr Justice Siddhart for a Division Bench of the Allahabad High Court comprising of himself and Hon’ble Mr Justice Syed Qamar Hasan Rizvi sets the ball in motion by first and foremost putting forth in para 2 that, “The criminal appeal has been filed against the judgment and order dated 21.12.2010, passed by Additional Sessions Judge IIIrd, Jalaun, at Orai, in Sessions Trial No. 128 of 2009, State of U.P. Vs. Upendra @ Balveer and Others. By the said judgment and order, the appellant has been convicted under section 316 IPC for the period of five years rigorous imprisonment alongwith a fine of Rs. 1,000/-. The appellant has been further convicted under section 302 IPC for life imprisonment alongwith fine of Rs. 1,000/-; in default the payment of such fine, for an additional imprisonment of two months.”
To put things in perspective, the Division Bench envisages in para 3 that, “The prosecution case as per F.I.R. is that two years ago, deceased, Deepika, was married to appellant, Balveer, as per Hindu marriage rites. Dowry was given in marriage by the informant as per his capacity, but the husband of deceased, appellant, Balveer, his father, Raj Bahadur and Mother, Smt. Ramkali, were not satisfied with the dowry received in marriage. After marriage, they were demanding one motorcycle, a gold chain and Rs. 1 lakh and send the deceased back to her parental home. After the deceased informed the informant about the conduct of the aforesaid persons, he went to their house and stated that he lacks money to fulfill their demand and after leaving his daughter with them, he came back. They made many phone calls demanding dowry and on 20.05.2009, the aforesaid persons killed his daughter, information whereof was received by the informant on 20.05.2009 at 07:30 p.m. He reached there and lodged the F.I.R. against the accused persons on 21.05.2009 on the basis of written application at 01:00 p.m.”
Do note, the Division Bench notes in para 19 that, “The accused persons in their statements recorded under section 313 Cr.P.C., clearly stated that they have been falsely implicated. No incident as alleged took place. It was a case of accident and not a case dowry death. The trial court by the impugned judgment and order acquitted Raj Bahadur and Smt. Ram Kali, the father-in-law and mother-in-law of the deceased, but convicted the appellant her husband, under sections 316 and 302 IPC.”
Do further note, the Division Bench then notes in para 21 that, “As far as the concept of Section 106 of Indian Evidence Act is concerned, that is misread by the learned trial Judge because when the offence like murder is committed in secrecy inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 Indian Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution. Initial burden of proving that, as on the date of the alleged incident, the accused was present in the house or lastly seen with the deceased or that he was lastly in the company of the deceased at the time of the incident would be primarily upon the prosecution.”
It is worth paying attention that the Division Bench points out in para 23 that, “In our case, it is established fact that the appellant and his deceased wife used to reside in same house. Hence, the burden to prove factum of the death of the deceased cannot be shifted on the shoulders of the appellant unless the prosecution first of all discharged its burden by proving the fact that at the time of alleged occurrence or at the time when the deceased was put on fire, the appellant was also inside the house. Learned AGA, in this regard, has contended that appellant has not taken the plea that he was not in the house when the incident took place but this was the negative burden on the appellant accused. The prosecution has not brought forward any evidence which could at least establish the fact that at the time of occurrence, the appellant was inside the house. Hence, there is no applicability of Section 106 of Indian Evidence Act in this case.”
What also deserves paying attention is that the Division Bench observes in para 24 that, “Another aspect of the case is that the appellant was charged under sections 498-A, 304-B , 316 IPC and ¾ of D.P. Act, by the trial court, but the trial court has not found the charges under sections 498-A, 304-B and ¾ of D.P. Act proved against the appellant, but has convicted the appellant under section 302 and 316 IPC.”
Quite significantly, the Division Bench propounds in para 26 postulating that, “We can safely conclude that accused-appellant was not given opportunity to defend himself against the charge for which he was convicted. It is sorry state of affair that learned trial judge altered the charge even after recording the statement of accused-appellant under Section 313 Cr.P.C., therefore, the charge was fitted according to the prosecution evidence. There is no doubt that charge can be altered at any stage of the trial but in such a case, the learned trial court should give proper and fair opportunity to the accused to defend himself against the altered charge so that his interest may not be prejudiced. He must get the opportunity of fair trial.”
Be it noted, the Division Bench notes in para 27 that, “In our case, accused is highly prejudiced for not getting the fair and proper opportunity to defend himself against the altered charge and the impugned judgment and order is liable to be set aside.”
Notably, the Division Bench points out in para 28 that, “In this case, we find that none of the prosecution witnesses of fact supported the prosecution case at all. They admitted it to be case of accident. P.W.-1, clearly admitted that accused were so poor that the demand of Rs. 1 lakh, one gold chain and a motorcycle was not for them to make. Yet the trial court convicted the appellant disregarding evidence on record and on wrong appreciation of relevant law, but rightly acquitted the father and mother of appellant of all charges.”
As a corollary, the Division Bench then holds in para 29 that, “In view of above, we are of the firm view that the judgment and order of the trial court cannot be sustained and is hereby set aside.”
Frankly speaking, the Division Bench then concedes in para 30 that, “The appellant has already undergone about 13 years of imprisonment before being released on bail on 21.10.2022 for no fault on his part for which he is entitled to heavy compensation from State, but due lack of statutory framework, we are helpless.”
While continuing in the same vein, the Division Bench then also concedes in para 31 that, “For the hundreds of innocent persons, who are wrongfully prosecuted but later acquitted after years, our justice delivery system takes little pains to make amends. True that under the public law remedy, some isolated adjudications came by way of writ jurisdiction, but it failed to shape a set formula for development of this branch of compensation jurisdiction. Article 21 of the Constitution says, ‘no person shall be deprived of his life and personal liberty except in accordance with procedure established by law’. The loss of productive years of life, feeling of loss of freedom, the negation by society, damage to identity, dignity, and reputation, shame, fear etc. cause multiple psychic disorders for this hapless lot. The damage to health, loss of income, loss of property, litigation expenses, loss of family life, loss of opportunities for education and career progression, stigmatization etc., add to this horrible count. Above all, the emotional and physiological harm caused to the family of accused takes unimaginable proportions given the stigma carried forward for generations. Instances are not rare where marriage proposals get turned down for incarceration of kindred even in the ancestral line. True that at times, positive overtures in constitutional jurisdictions have addressed this issue. But still now no concrete judicial mechanism to have uniform application in cases of wrongful prosecution took shape in our jurisprudence to do some reparation.
The Delhi High Court in Babloo Chauhan @ Dabloo V. State Government of NCT 247 (2018) DLT 31 directed the Law Commission to undertake a comprehensive examination of the issue of wrongful prosecution and suggest a mechanism for compensation and rehabilitation of victims of wrongful prosecution.”
It must be borne in mind that the Division Bench points out in para 32 that, “The Law Commission in its 277th Report recommended for a legal and statutory frame work for establishing a mechanism for adjudicating up on claims for wrongful prosecutions. Commission proposes a statutory obligation on the State to compensate the victims of wrongful prosecution with the right to be indemnified by the erring officers. The proposal for establishment of special courts for speedy disposal of claims for compensation is another notable suggestion by the Commission. A Draft Bill containing amendments to Code of criminal Procedure was annexed with the Report. The Bill seeks to incorporate definitions to `malicious prosecution’ and `wrongful prosecutions’, in addition to insertion of Chapter XXVII A containing procedural rules for laying claims. The definition of malicious prosecution as an “act of instituting the prosecution complained of without any existing reasonable or probable cause”, to a great extent dissuades police over zeal in sponsored prosecutions. The all-encompassing narration of misdeeds constituting the act of ‘wrongful prosecution’ in the definition clause in the Bill is sufficient to ward off ambiguity in any form and provide clear pointers to the adjudicatory authority in deciding on the claim for compensation for wrongful prosecution. Making false or incorrect record or document, making false statement before officer authorized to take evidence, giving false evidence, fabricating false evidence, suppression of exculpatory evidence, filing a false charge, committing a person to confinement etc. are instances of inculpatory misdemeanours leading to a wrongful prosecution, which fortunately find a distinctive place in the exhaustive definition given to ‘wrongful prosecution’ in the Draft Bill.”
Most remarkably, the Division Bench lays bare in para 33 postulating that, “Commission has considered Article 14(6) of the International Covenant on Civil and Political Rights 1966 (ICCPR) delineates the obligation of States in cases of miscarriage of justice resulting from wrongful prosecutions. It says “when a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new and newly-discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” Article 9(5) of the ICCPR further underscores this right by declaring that “anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. The United Nations Human Rights Committee explained the obligations contained in Article 14 of ICCPR: “It is necessary that States parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that payment is made within a reasonable period of time.” As nearly as 168 State parties, including India, have ratified ICCPR. But the incorporation of this international obligation into domestic legal frame work has been done only by a few countries.”
It is of immense significance to note that the Division Bench states in para 34 that, “Criminal Justice Act 1988 is the statute in England following ratification of ICCPR by the United Kingdom. Sections 133, 133A, 133B of the Act, in its combined synergy, provide for creation of a mechanism under the Secretary of State for determination and disbursement of compensation to victims of miscarriage of justice. A person who has suffered imprisonment consequent to wrongful conviction can approach the Secretary of State for Compensation if conviction is reversed or pardoned on the ground of miscarriage of justice. The emergence of a new fact proving beyond reasonable doubt that the person has not committed the offence was the expanded version and norm for ‘miscarriage of justice’ under the UK Law. But in 2011, in R (on the application of Adams) V. Secretary of State for Justice, the UK Supreme Court widened the scope of ‘miscarriage of justice and the notion of innocence’, by ruling that even those who cannot prove innocence beyond reasonable doubt also can lay claim for compensation. The Criminal Cases Review Commission (CCRC) working in the UK undertakes the exercise of review of the cases with possibility of miscarriage of justice working in the criminal courts in the UK. It can gather field information related to a case and carry out its own investigation for finding out the real truth in a pending case or a disposed case and accordingly apply for review of conviction, if miscarriage is found out. The UK Police Act 1996 makes the Chief Officer of Police liable in respect of any unlawful conduct of constables under his direction and control in the performance of functions, with clauses for payment of compensation. The distinguishing feature of UK compensation regime is that it fixes a compensation slab taking periods of imprisonment as bench marks to do full justice according to variables.”
On similar lines, the Division Bench then also points out in para 35 that, “The United States Code deals with federal claims from persons unjustly convicted of an offence against the United States and imprisoned. Claimant is eligible for relief on grounds of pardon for innocence, reversal of conviction or of not being found guilty at a new trial or rehearing. The US Court of Federal Claims is the adjudicatory forum under the statute. The length of incarceration is the yardstick or variable for the determination of compensation. All States in the US have their State laws providing for compensation to victims of wrongful prosecution. While some States lay down fixed amount of compensation to be paid depending on period of incarceration, others have given discretion to the forum to decide compensation based on individual fact dossiers. In the State of Illinois, a tabular compensation formula based on period of incarceration is adopted. Non-monetary compensation is given for assisting victims in rehabilitation and reintegration into the society including transitional services like housing assistance, job training, assistance in terms of job search and placement services, referral to employees with job openings, physical and mental health services for enabling victims to reintegrate into society. Other Common Wealth countries like Canada, New Zealand and Australia have infused ICCPR treaty obligations for compensation into their domestic jurisprudence by appropriate legislations.”
Closer home, the Division Bench then points out in para 36 while citing relevant case laws that, “. In the absence of clear statutory frame work in consonance with the commitments under ICCPR, the Indian courts have paraphrased in its numerous decisions what actually is miscarriage of justice resulting from wrongful prosecution, particularly in its constitutional remedy jurisdictions. Right to fair trial, an attribute of Article 21 of the Constitution, is the barometer for its forensic evaluation of wrongful prosecution. Journey from the Maneka Gandhi AIR 1978 SC 597 case to S Nambi Narayanan v. Siby Mathews & others AIR 2018 SC 5112 marks the evolution of jurisprudence on violation of fundamental rights, particularly compensation for wrongful prosecutions. The apex court as early as in 1983, while ordering compensation for illegal detention, observed in Rudul Shah vs State of Bihar 1983 AIR 1086: “one of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.” Bhim Singh v. State of J&KAIR 1986 SC 494 was another case in the episodic judgments followed in the compensation jurisdiction, where for an illegal arrest and detention the Supreme Court awarded Rs 50,000 as compensation to the sufferer. Nilabati Behera v. State of Orissa 1993 AIR 1960 underlined the principle that sovereign immunity is not available in an action for compensation for violation of fundamental rights, where the adjudication is under Article 32 and 226 of the Constitution. Consumer Education and Research Center & others V. Union of India reiterated the above principle. However, Supreme Court rejected the plea for compensation for the accused who were in jail for a decade and more but were subsequently acquitted in Sulemenbhai Ajmeri & Ors V. State of Gujarat , 2014 SCC 716 popularly called, Akshardham Temple Case.”
Most significantly and most sagaciously, the Division Bench encapsulates in para 41 what constitutes the cornerstone of this robust judgment postulating that, “Considerable amount of public money, time and efforts of number of persons are consumed in preparation and submission of reports by Law Commissions. The government rarely accepts recommendations of Law Commissions. The data on record shows that only about 1/3rd of such reports have been only accepted by the Government. The 277th Report of Law Commission ought to have been accepted by the Government since the trial courts often convict accused in case of heinous offences due to fear of higher courts even in is clear cases of acquittal. They are fearful of wrath of the higher courts in such cases and only to save their personal reputation and carrier prospects such judgment and order of conviction are passed. This unfortunate side of our system was considered by this court in Criminal Appeal No. 6367 of 2010 (Virendra Singh and Others Vs. State of U.P and Others) decided on 12.09.2024. In such cases innocent individuals are subjected to trauma of unwanted incarceration in jail for number of years before their bail applications are allowed or their criminal appeals are decided by the High Court/Supreme Court. If ultimately they are acquitted, they find themselves unfit in their family and society, their place in the family gets filled by other members of the family, property is usurped by the other family members and they are seldom seen as a welcome member in the family after being in long incarceration in jail. The State can provide some pecuniary compensation to such accused which may provide them some solace and they would not be seen as a burden on their family after being acquitted of the unfounded charges levelled against them. The family of such persons also goes through the time and money consuming process of contesting trial, which is so tedious that it itself is not less than a major punishment. Sometimes the family looses all its means of survival in defending its near and dear one in courts at different level.”
Most damningly, the Division Bench while taking potshots at Centre laments in para 42 stating very rightly that, “As yet the government has not implemented the recommendations of 277th report of Law Commission hence violation of Articles 14 and 21 of the Constitution of India for wrongly prosecuted and punished would continue unabated. Even in the much hyped Bhartiya Nagrik Suraksha Sanhita, 2023 there is nothing in consonance with Articles 14 and 21 of the Constitution of India for such unfortunate ones.”
What’s more, the Division Bench then candidly concedes in para 43 stating that, “The Court has no other option but to simply allow this criminal appeal, having set aside the judgment and order of trial court earlier.”
Furthermore, the Division Bench then states in para 44 that, “The criminal appeal is allowed.”
In addition, the Division Bench then hastens to add in para 45 stating that, “The appellant is on bail. His bail bond is cancelled and sureties are discharged.”
Finally, the Division Bench then concludes by holding in para 46 that, “Let the record of trial court be returned and this judgment be notified to the trial court within two weeks.”
In sum, it is high time now and the Trial Court Judges while according paramount importance to what Allahabad High Court has held in this leading case rule in accordance with law and should refrain from convicting innocent persons just for sake of career prospects. In addition, the High Courts must also not give undue encouragement only to those Judges who convict more only for sake of advancing their own vested interests! Centre must enact law and hugely compensate those who have been wrongly convicted hinging for how many years he/she has been convicted! It brooks no more delay any longer!
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