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The parts of the sum

Wrongful prosecution is a vital area in the criminal justice system as it imperils the life and liberty of a person, violating Article 21 of the Constitution, writes RR Kishore.

india Updated: Apr 23, 2013 21:50 IST
Supreme Court,Sanjay Dutt,TADA

The Supreme Court vide its verdict on March 21 reduced actor Sanjay Dutt’s sentence to five years imprisonment from six years as awarded by the designated court under the Terrorist and Disruptive Activities (Prevention) Act (Tada).

However, his sympathisers feel that this is not enough and he should not be sent to jail again. Others feel that the law of the land should be equally applicable to all regardless of their social status and, as such, the court’s verdict is fully consistent with the rule of law and democratic values.

It appears the debate has been reduced to discussing the kind of treatment being extended to a celebrity rather than focusing on the deeper issues involved in the matter. No doubt, Sanjay Dutt has provided an opportunity for legal introspection since the cases of ordinary people do not get media attention. But the real issue is to determine the applicability of law to a person — regardless of his socio-economic status — who has been a victim of wrongful prosecution at the hands of the State, leading to torture, ignominy and harassment. In view of highly-polarised public opinion it may be fruitful to examine the matter objectively.

Sanjay Dutt was arrested on April 19, 1993 and the chargesheet was filed on November 4, 1993 in the designated court under Tada for conspiracy to commit offences under various provisions of Tada, 1987; IPC, 1860; Arms Act, 1959; Explosives Act 1884; and Prevention of Damage to Public Property Act, 1984. By order dated November 28, 2006 and July 31, 2007 the designated court found him guilty of unauthorisedly possessing arms and ammunition and convicted and sentenced him to six years imprisonment, along with a fine of R25,000, under the Arms Act, 1959. Dutt was not found guilty of any other offence for which he was charged ‘and, accordingly, acquitted for all the said offences’.

By the above facts it is clear that Dutt, was subjected to criminal proceedings under Tada and various other laws from November 4, 1993 till July 31, 2007 i.e., for a period of 13 years, eight months and 27 days. Since he was not found guilty of these offences and was, accordingly, acquitted the said proceedings were unfounded and unwarranted. Thereafter, for five years seven months and 21 days he had to wait for the outcome of his appeal. Owing to these wanton criminal proceedings, for nearly 20 years he suffered a host of irreversibly adverse consequences. Since he was charged, inter-alia, under Tada and Sections 302 and 307 IPC he was dubbed as a traitor, terrorist and murderer and had to remain in jail for nearly one-and-a-half years.

Dutt is not alone. Many people in this country face wrongful prosecution at the hands of the executive, suffering everlasting pain and misery. It is ironical that we follow one part of the law meticulously i.e. once a person has been found guilty of an offence — in this case for possession of unauthorised arms — he should not go unpunished.

But, we do not follow the other part of the law i.e., a person should not be subjected to prolonged rigours of unwarranted criminal prosecution, running into decades, for an offence which he has not committed. Furthermore, we seem oblivious of the fact that the improper use of the courts and legal systems not only traumatises the individual but also impacts adversely on precious public resources. The following questions, therefore, need to be answered: Who is responsible for causing these afflictions and how should the responsibility be fixed?

Who is responsible for inordinately long drawn process of prosecution?

Does initiation of such wrongful criminal proceedings amount to abuse of powers by the police agencies and prosecutors?

How can the victim be compensated?

In the above context, it is soothing and equally enlightening that the Canadian Supreme Court, in Nelles v Ontario (1989) 2 SCR 170, while deciding the issue of prosecutorial immunity, held that “The Attorney General and Crown Attorneys are not immune from suits for malicious prosecution. In the interests of public policy, an absolute immunity for the Attorney General and his agents, the Crown Attorneys, is not justified. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted.”

Wrongful prosecution is a vital area in the criminal justice system as it imperils the life and liberty of the person, violating Article 21 of the Constitution. In India, an effective law in this area is yet to evolve and the acquittal of the accused does not entail accountability on the prosecutors. However, the Supreme Court of India, under Article 142 of the Constitution, possesses plenary powers to pass ‘such order as is necessary for doing complete justice in any cause or matter pending before it’. Justice is a virtue which transcends all barriers.

‘Complete justice’ is a far more profound concept. In my view, ‘complete justice’ includes commutation of the remaining part of a convict’s sentence as an adjustment against the injuries suffered by him because of unwarranted prosecution. As such relief can be claimed under Article 142 of the Constitution by a victim of wrongful prosecution.

It is distinct from pardoning him or condoning his sentence on compassionate grounds by the head of the executive. In fact, this is what is due to him and does not amount to any undue favour. Such an approach will best serve the underlying public interest.

We ought to remember that nothing rankles the human heart more than a brooding sense of injustice, beautifully captured by Mary E Rogers in the following lines:
‘Years pass by and I remain
In a darkened black abyss
A prison that envelopes meRR Kishore
While others live in bliss’

RR Kishore is an advocate, Supreme Court of India
The views expressed by the author are personal

First Published: Apr 23, 2013 21:46 IST