The existence of probable and reasonable cause is of no use if the prosecutor is prosecuted in ignorance of it. Upon receipt of the complaint, the Magistrate decides on the cognizance of the offence. The Criminal and civil cases that lack many evidences usually aren’t pursued and occasionally criminal charges or civil lawsuits are maliciously filed to intimidate, harass, defame, or injure the other party. A case of malicious prosecution was filed by the plaintiff and the same was dismissed by District Judge, aggrieved by which plaintiff filed an appeal in the High Court during which he passed away. The case under malicious prosecution should be filed within a year of a malicious suit. There was no accusation against the appellants before filing of the FIR. Vs. State & Ors. e) A Suit for exemplary Damages for Defamation or Suit for compensation for malicious prosecution can be filed against the person who has filed the false complaint, including against the Police. A victim of a malicious accusation may have to face arrest for no fault of his but still he is accused of doing the act. Thus, not having a comprehensive and effective law of malicious prosecutions which would in effect mean that the fundamental rights of the citizens remain vulnerable to a large extent. The absolute immunity is the main reason for making the government agents unapologetic of their wrong doings, and has led it to be the thriving ground of corruption and also for maliciously instituted proceedings. The biggest pain in a person’s life is a bad reputation. Could I challenge the proceeding in the court? Giving a false statement to the police officer in order to get an FIR registered against someone while knowing it to be false is covered under this chapter. In India, the offence of Malicious Prosecution is still a developing law and has not received the seriousness it deserves. It is an ageless concept that reputation is the most important facet of any person’s life and it is however quite saddening that not enough legal protection has been granted to it. The Court had acted on a special leave petition on the question of audio-video recordings under Section 161 (3) of the CrPC which says that a police officer may reduce into writing any statement made to him in the course of an examination. Further, if public officers abuse his offices either by an act of omission or commission and the consequence of that is an injury to an individual action may be maintained as an offence under 166(A) of IPC. The latest report being the 277th report of the Law Commission of India dated August 2018 pursuant to the direction of Hon’ble Delhi High Court in the matter of Babloo Chauhan @ Dabloo vs. State Govt. The number of false cases rising in matrimonial disputes, civil disputes converting into white-collar crimes and illegal arrests by the police authorities have only increased since the past decade. The proceeding is going on without getting sanction under section 19 prevention of corruption act and section 197 crpc. The Court held that the trial court was right to apply Shivanna (2014) 8 SCC 913 stating that the accused is not entitled to copies of the statements recorded under Section 164 CrPC, until the police have filed a report under Section 173 CrPC. A police officer deliberately filing a false FIR is an offence under Section 167, 218 of IPC. Since the concept in itself has been originated in common law. Dignity means as the state or quality of being worthy of respect. The Court had acted on a special leave petition on the question of audio-video recordings under Section 161 (3) of the CrPC which says that a police officer may reduce into writing any statement made to him in the course of an examination. If the complaint is not in written form. – George Washington […], Cyber Law in India – Meaning, Introduction, History, Need, Important terms and Amendments, What does Cyber Means? 50 Lakhs to ISRO scientist Nambi Narayanan who was falsely accused of espionage by the Kerala Police. Malicious Prosecution under Criminal Law in India ‘Life demands self-respect and dignity’, were the words of former CJI Deepak Misra while awarding a compensation of Rs. It was an outcome of misusing the due procedure of law since 18th and 19th century in England. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. Making or framing some false or incorrect record and documents for submission in a judicial proceeding; Making a false statement authorized by law to receive as evidence when legally bound to state the truth; Fabricating the evidences for submission in a judicial proceeding or any other proceeding taken by law; Destruction of the evidences to prevent its production in a judicial; Bringing a false charge, or instituted false criminal proceedings against a person. Therefore, the apprehension of malicious prosecution because of the steps taken by the public prosecutor against the petitioner in 2018, is not acceptable. A case of malicious prosecution was filed by the plaintiff and the same was dismissed by District Judge, aggrieved by which plaintiff filed an appeal in the High Court during which he passed away. In a claim for prosecution, the plaintiff can claim the damages on the following three counts –. The possible remedies in New Zealand for all those people who are prosecuted for offences which they have not committed are an award of costs the tort remedies of malicious prosecution. The public and private law remedies are pecuniary in nature but the criminal law remedy one is the criminal action against the concerned officials which has to be taken by the concerned government. "MALICIOUS PROSECUTION" KUWJ's habeas corpus petition filed through advocate Wills Mathews had termed Kappan's arrest "illegal detention, arbitrary and unconstitutional". 2002 Orissa 75), the order of compensation is given for different republication under the law of torts. A case may fall both under section 182 and section 211 of the Indian Penal Code. Section 41A provides for a Notice of appearance before police officer in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41 {Arnesh Kumar v. State of Bihar and anr}. Special courts: The chapter proposes to set up special courts to decide claims speedily and swiftly so as to avoid the ordeal of prolonged proceedings in cases seeking remedies in criminal prosecution. The existing laws and various case laws describes about the three different types of court based remedies against Malicious Prosecution and deals with it. Law Matters Centre for Research, Education, and Social Action (LaMCRESA) For the offences under Sections 167 and 219 of IPC the pivotal ingredient is the same as for the offence under Section 166 of IPC.”. Legal Desire International Journal on Law (LDIJL), http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html, https://blog.ipleaders.in/malicious-prosecution-law-tort/, https://www.injuryattorneyofdallas.com/what-is-malicious-prosecution/, https://www.latestlaws.com/latest-news/what-sc-said-on-malicious-prosecution-by-the-employer-read-the-judgment/, https://www.legalbites.in/malicious-prosecution/, Medical Law & Ethics: Evolution & Position in India, The idea of Medical Law and Ethics fundamentally investigates into the inalienable rights that patients have with respect to the security of their medical historical records, specialists understand confidentiality, the […], Procedure to apply for film certification with CBFC, PROCEDURE TO APPLY FOR FILM CERTIFICATION WITH CBFC “If freedom of speech is taken away, then dumb and silent may be led, like sheep to the slaughter”. In the case on hand, malicious prosecution was instituted by the brother of the deceased after a period of five years that too on the basis of anonymous letters. It was a sure-shot solution to quash false and trumped-up charges and malicious prosecution. The legal concept of malicious prosecution has been discussed at great length by a division bench of the SC in West Bengal State Electricity Board vs … Lastly, section 358 of the Cr.P.C. The Supreme Court and High Courts have though time and again recognized the offence as one infringing the right to life and liberty of a person, there is little indulgence shown by the legislature to formulate a well-defined law to prosecute such offenders. Abdi V/s. In such a strong democratic set up, it is only fair that absolute statutory immunity should not be granted to government agents. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. prosecution ended in the favour of plaintiff’s, defendant lacked reasonable and probable cause of bringing the prosecution, plaintiff suffered damages as a result of the prosecution. According to Section 321 of the Code of Criminal Procedure, the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, … The doctrine of checks and balances should be applied, and the researcher strongly feels that implementation of the concept of malicious prosecution would prove to be an effective medium for it. One of the important source of pleasure in a man’s life is a good reputation, and the most traumatising pain is a bad reputation. What he lost was not just his reputation but his career as an eminent scientist, savings, his academic work as well as self-esteem trying to prove his innocence in a case that falsely labelled him as an enemy of the nation. The paper also mentions some suggestion to make the condition better in this law. As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a prosecution when the Magistrate takes cognizance of the complaint which then is followed by an examination of such complaint by means of inquiry in open court under sec 202 of CrPC the prosecution is deemed to have commenced. They are-. The statements under section 161 CrPC are part of the documents mentioned under section 173 CrPC. The person who is maliciously prosecuted can file both the cases simultaneously. A victim or a person having knowledge about the commission of a particular crime can file a criminal complaint with a competent Judicial Magistrate. The states in such cases should take action against the officials who are responsible for such prosecution. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. Under this the defendant becomes plaintiff and plaintiff becomes defendant. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. This chapter along with other provisions covers the offences of giving false information given to public servants with the intention of causing injury and knowing it be false. The following are the essential elements which the plaintiff needs to prove in a suit for damages for malicious prosecution: It is the very first essential element which the plaintiff needs to prove in a suit for damages for malicious prosecution is that he (plaintiff) was prosecuted by the defendant. If a person gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use his lawful power as a public servant to the injury or annoyance of any person, he commits an offence under section 182 of the Indian Panel Code. The supreme court states that illegal arrest cannot be washed away by setting the person arrested free. He can lodge a private complaint to the Magistrate alleging false F.I.R. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. On the other hand, civil law countries have adopted the concept later in time. Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. Public law remedy is the grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. The tort of malicious prosecution, a very effective one if implemented in its right spirit, also comes with its short comings. There are provisions in India for dealing with malicious proceedings, criminal suits and a claimant usually has no remedies. A good reputation means that the man has garnered good will in the society, and that is the greatest source of pleasure to him. In a case where the Sarpanch of Gram Panchayat knowingly issued a false certificate stating that he does not own any land except the land which he has made fit for cultivation was held to be guilty of an offence under section 177 of IPC (Bishan Dass V. State of Punjab and Anr, in S.L.P. Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal law. The informant would not be liable for malicious prosecution if the information furnished by him is … cited as (2001) 10 SCC 188) held that an offence under section 166 IPC is made out and the matter was remitted back to the magistrate for disposal. Praful Kumar Mahanta (A.I.R. In simpler words, it means an offence for which a police officer may arrest a person without warrant under first schedule (it defines the nature of offences under IPC) of CrPC or under any other law for the time being in force. The Apex Court was of the opinion that any statement made falsely in order to support the prosecution can constitute an offence under Section 193 and 195. There needs to be recompense for the years lost, for the social stigma, the mental, emotional and physical harassment, and for the expenses incurred etc. “Public servants have, in fact, been treated as special category under Section 197 of CrPC to protect them from malicious or vexatious prosecution. So, it essentially means that this is just a beneficial provision of law, which enables the court to save the accused from … There are various cases for instance like in Khatri v. State of Bihar (1981), Veena Sethi v. State of Bihar (1983), Rudul Sah v. State of Bihar (1983), Bhim Singh v. State of Jammu and Kashmir (1985) the Supreme Court held that compensation can be granted by the constitutional courts for the violation of fundamental rights under the Article 21 of the Constitution of India. “Malicious Prosecution” was extensively defined in the landmark case of West Bengal State Electricity Board v. Dilip Kumar Ray. A person who is a victim of a malicious prosecution, loses his dignity and respect in the eyes of the people around him, depending on the type of offence and accusations he/she is accused of, resulting in violation of his/her right to live with human dignity. For that matter, the wordings of Section 340 CrPC are significant. There are various types of defences that can be taken when one is charged with a claim of malicious prosecution; However, not all of these defences can be fool proof in their bare form. This is as per provisions mentioned under Section 200 in the CrPC, 1973. They are enshrined as a fundamental right in the Constitution of India. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still, the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision.”. It engages in providing basic knowledge about core areas of law and has recently been ranked among top 20 Dispute Resolution Blogs in the world. Change ), You are commenting using your Twitter account. The former is the initiation of a legal procedure with malicious intent and the latter is the employment of legal procedures for attainment of an objective other than that purported by law. Pick all the topics you are interested in to fill your homepage with stories you'll love. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. There needs to be compensatory assistance by the State to help the innocent victims of miscarriage. A good will often relates to moral values. In the midst of representations by states about the … When a wife filed an affidavit claiming that she has no source of income and it was later found to be false, the trial court, directed the initiation of prosecution against the wife under Section 195 read with Section 340 of CrPC for committing offences under Sections 191, 192 and 193 of the Penal Code. Article 21 right to life and personal liberty also related to malicious prosecution. Define malicious prosecution: The CrPC should define “malicious prosecution” and “wrongful prosecution” in its definition clause so as to make the concepts clear. (Bharatbhai Chandubhai Gadhia vs State Of Gujarat, in R/SCR.A/951/2014). It means the “claim” to the existence or non-existence of a fact or a set of facts on which a party to a case seeks an outcome from the Court based on the substantive law and its application to facts as established. [3] Procedural misconduct is failing to an act or an illegal act, an attempt to sway the judiciary to wrongfully convict a defendant. Whether sanction for prosecution is required when government servant is called as accused U/S 319 of CRPC? In a complaint case filed before a Magistrate for which the magistrate is empowered to take cognizance under Section 190 of the Criminal Procedure Code, the magistrate while taking the cognizance of an offence shall examine the complainant and any witnesses present on oath. 21 and held that the right to live is not just a physical right but includes within its area the right to live with human dignity. But the Magistrate cannot look into the statement of the accused in the case diary as it is an extraneous material. these provisions being … The Hon’ble Supreme Court observed the difference between malicious use and malicious abuse of legal procedures. 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