With the closure of the criminal defamation appeal by the High Court, the issue of compensation for pre-trial detention is brought to end too.

Most legal systems do not have compensation for detention. Bhutan has a legal system that provides the legal right to compensation in case of pre-trial detention under certain conditions.

Section 212A of the Civil and Criminal Procedure Code Amendment 2011 states that “a person detained and acquitted thereof or subjected to unlawful detention is entitled to be compensated for the loss of income caused by the criminal proceedings or unlawful detention and to be reinstated at the former place of work”.

This provision protects the rights enshrined under Article 7 (16) of our Constitution, the right to be presumed innocent until proven guilty in every criminal trial and Article 7 (20), the right not “be subjected to arbitrary arrest or detention.”

If a person is detained and subsequently is acquitted, or the accused is unlawfully or arbitrarily detained, such wrongful prosecution or detention is remedied through compensation, at least their loss of income.

Section 204 of CCPC requires that the court must acquit the defendant “where guilt beyond reasonable doubt has not been established to the Court’s satisfaction for the charge.”  Further, Section 96 (2) imposes the burden of proof on the prosecution to establish proof beyond a reasonable doubt. Thus, to be called acquittal, there must be a full criminal trial and the prosecution fails to prove beyond reasonable doubt the charges framed against the person. Acquittal brings an end to the case and the same case cannot be opened anymore under Section 115 – res judicata.

Similarly, Section 186 requires that any person so detained must be done only after obtaining an order from the court to keep under police or judicial custody provided there exists a reasonable cause of perpetrated a crime. Section 191 authorises law enforcement agencies to detain a person for investigation by keeping them in detention before prosecution for up to forty-nine days if satisfied that adequate grounds exist for doing so or one hundred and eight days, where the investigation relates to a heinous crime. If these provisions are violated, it can constitute a violation of their constitutional right and statutory protection for which compensation exist.

Thus, compensation under Section 212A of CCPC can be only in case of acquittal or arbitrary detention.  

For example, in Penjor Penjor’s defamation case, unless his detention was arbitrary, the court dismissed the case and there was no prosecution. When a case is dismissed, the defendant is neither acquitted nor considered innocent since there was no criminal trial. Dismissal can be under varying reasons including lack of evidence at the preliminary hearing, suppression of evidence, prosecution failing to establish a prima facie case or other reasons. If Penjor was detained during the defamation case, he could seek compensation as he was acquitted after full trial.  

Alternatively, the accused can file a case against the state for cantankerous prosecution (malicious prosecution to embarrass or harass) under Section 371 of the Penal Code of Bhutan and seek appropriate compensation including defamation under Section 317 of the PCB or a civil suit against the state. Thus, there are other ways to get compensation.  These alternatives will prevent the state agencies from abusing their authorities. Equally, the courts must be vigilant while granting any remand order to prevent abuse of such authority.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.