A malicious and deliberate act on the part of an investigating officer should be viewed very seriously
Shah Rukh Khan’s son Aryan Khan being escorted by law enforcement officials from the Narcotics Control Bureau, in Mumbai. | Photo Credit: AP
A malicious and deliberate act on the part of an investigating officer should be viewed very seriously
In October 2021, Aryan Khan, son of actor Shah Rukh Khan, was arrested in Mumbai by the Narcotics Control Bureau in a drug racket case. Now, after many twists and turns in the case, on May 28, he and five others were given a clean chit by a special investigation team from Delhi. Besides highlighting the torment suffered by him and his family, Aryan Khan’s case also threw the focus on the countless victims of malicious prosecution, many of whom are resourceless. In a conversation moderated by Sonam Saigal, Madan B. Lokur and Meeran Chadha Borwankar discuss whether those who have been implicated in false cases should be compensated. Among other things, they discuss reasons for wrongful and malicious prosecution, the role of investigating officers and agencies along with the judiciary, and whether India needs a new law to decide on the quantum of compensation. Edited excerpts:
We are increasingly seeing a lot of innocent people being booked. Why do enforcement agencies end up arresting and even charging the wrong people?
Madan Lokur: I would like to draw a distinction between somebody who has been falsely implicated and somebody who has been implicated but is eventually acquitted, either because the evidence is deficient or because of some other reason. In the case of Aryan Khan, as it appears from the newspaper reports and some statements that have come out, there was actually no reason to arrest him and keep him in custody for almost a month. It is all right for the investigating officer to say, ‘we are still investigating’, but the investigation must have some basis. Otherwise, tomorrow they can pick up somebody and say, we think this person is a terrorist, we are investigating, and until we complete our investigation, let that person remain in jail. I have no doubt in my mind that Aryan Khan has been falsely implicated, and therefore, he must be compensated.
There are several reasons why a person should be compensated if there is false implication, if there has been physical discomfort of being in jail because the person may have been in jail for many years. You have to consider the fact that our justice delivery system is painfully slow. There are instances where persons have spent eight, 10 or more years under trial. Then there is the mental trauma that not only a person, but also their family and children undergo. There is social stigma. In a village, where people know one another, maybe not intimately but they know who’s who, the family of the one who is falsely accused gets ostracised. It may not happen in a big city like Mumbai or Delhi. Children also suffer. Can you imagine a child who is going to school and the teacher or some other child says that this boy’s father is a terrorist and he’s in jail. It is bound to affect the child. It is also important to look at mental health, emotional health, not only of the person, but also of the family.
Meeran Borwankar: Any case of deliberate, intentional arrest or booking of an individual in a criminal case should be compensated. But I would also like to add, when an agency arrests a person, it’s only for 24 hours, and then the person is produced before the court. So it is not the enforcement agencies alone, it’s also the judicial mind which is applied within 24 hours. If the judicial officer feels or thinks that the investigating agency does not have enough evidence or it’s going blatantly wrong, they should not hand over the custody either to the agency or to prison. A case in India ordinarily takes six to eight years to conclude. You have the financial, social and emotional burden of being involved in a crime, which in case you were falsely accused of or maliciously prosecuted for, you should be compensated for.
Having said that, would it be fair to say that a wrongful prosecution stems from a malicious probe that operates on a bias and prejudice?
Meeran Borwankar: Maybe not always. I was once involved in the investigation of a case of murder, which later proved to be a case of suicide. So, sometimes there can be genuine mistakes. But a malicious and deliberate act on the part of an investigating officer should be viewed very seriously.
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Madan Lokur: It could be and it may not be. Nowadays, there are several instances of sedition. In a case of a harmless tweet, the prosecution books the person for a charge as serious as sedition — here it is clearly malicious. Another example is Section 66A (punishment for sending offensive messages through communication service, etc.) of the Information Technology Act that has been struck down by the Supreme Court (in 2015) as unconstitutional. But there are still a few thousand cases that have been filed even after that. How can the prosecution ever justify that? There is also a very heavy responsibility on the judiciary. The judiciary also has to be alive to the fact that it is just a simple tweet and nobody is trying to topple the government. Therefore, the judge must say, ‘why accuse the person with sedition’ and ‘I don’t agree with this.’ Similarly, with Section 66A, the judge should ask, ‘why have you filed a case under a provision that has been declared to be 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 reasonable doubt, which is a standard of proof that is required, then one can come to the conclusion that the prosecution has a malicious intent.
The Law Commission in its report number 277, titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, has recommended enactment of a specific legal provision for redressal of such cases, covering the substantive and procedural aspects. How do you think we can calculate compensation?
Madan Lokur: I can’t give an answer offhand. But there has to be some way of doing it. First, you have to accept the fact that compensation has to be given, then comes the calculation. There have been instances. In scientist Nambi Narayanan’s case (he was acquitted 24 years after Kerala police arrested him in a fabricated spy case), the Supreme Court gave him ₹50 lakh as compensation (in 2018). The Delhi High Court on a couple of occasions has said the person needs to be compensated for having been kept in jail even though he’s entitled to bail and all the papers are in order. So, there are a whole lot of factors which point unerringly to the fact that compensation must be given.
Meeran Borwankar: Compensation is one extreme, which means we have come to a conclusion that it is a case of malicious prosecution. But we can also take steps in moderation; for example, more professional scrutiny by the senior officers of enforcement agencies. In Aryan Khan’s case, a senior officer could have applied his mind and maybe advised the overenthusiastic officers on the professional lines of investigation. The second role is of the prosecutors, as they are neither with the police nor with the investigating agencies; they are independent officers of the court. So, when the investigating agency or police are saying that a person is involved, and want his custody, even the prosecutors can point out to the enforcement agencies that they are wrong; that their case is not strong, so they should not ask for custody. But sometimes, I can say from experience, agencies and investigators get very troubled by the thought that if we do not show the arrest of a person who is a very influential person or child of an influential person, adverse reactions shall be drawn by the media and by citizens. Therefore, the agencies sometimes err on the side of arresting; the role of the prosecutor and judicial application of mind will help against an 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 of filing a civil suit by the victim or the family members. But that is time consuming. Do you think that India needs a new law to ensure disbursement of compensation?
Madan Lokur: I think we should certainly legislate on this, so that there is no ad hocism. It is possible that one court in a small State may think that giving ₹5 lakh compensation to someone is a good idea, but a High Court in a bigger State may say, what is ₹5 lakh? It’s nothing, we should give at least ₹10 lakh. So we need a standard which can be laid down by legislation for determining compensation. You have instances, in cases of death in a motor accident, where the Motor Accident Claims Tribunal says ₹5 lakh is good enough, but the High Court may say no, that is too little, it should be ₹7.5 lakh and the Supreme Court may say it should be ₹10 lakh. Similarly, in land acquisition cases, as seen earlier, the collector would give some amount, the High Court would double it, the Supreme Court would make it two and a half times or three times more. So, there are principles on the basis of which compensation can be determined and is being determined not only in motor accident cases, but also in land acquisition cases. I think in the long run it’s a good idea if you have legislation 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 talks of a false charge of offence made with an intent to injure. It can lead to two years of imprisonment, or up to seven years. This section, I think, is valid for malicious prosecutions, but further legislation for compensation would be a welcome step.
Given that the fundamental rights of the person implicated in a false case are infringed upon and violated, do you think that the state should have some legal or statutory responsibility?
Madan Lokur: Yes, it should. One of the consequences of not adhering to that responsibility is compensation. Or it could be punishment in some other form; there can be a departmental inquiry against an errant officer or he can be dismissed from service.
Meeran Borwankar: I also feel if the judicial officer at the time of trial, if not earlier, comes to the conclusion that the prosecution’s case is false, it can distinguish between a genuine error or a malicious one and the court can pass an order for compensation. The state must also take responsibility in case of wrongful confinement.
If the judicial officer feels or thinks that the investigating agency does not have enough evidence or it’s going blatantly wrong, they should not hand over the custody either to the agency or to prison.
Meeran Chadha Borwankar is a retired Indian Police Service officer of the Maharashtra cadre; Madan B. Lokur is a retired Supreme Court judge