A false “denial”, except when the person responding is not aware, would constitute making a “claim” in Court under Section 209 IPC.”. New Zealand has codified the means discharging successful of innocent defendant. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. The judges have the independence of evolving new laws and acts or filling voids in between the existing laws. 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. 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. therefore he is being targeted for malicious prosecution within the State. The proceeding is going on without getting sanction under section 19 prevention of corruption act and section 197 crpc. This includes granting compensation to those who were wrongly incarcerated. these provisions being … Law Matters Centre for Research, Education, and Social Action (LaMCRESA) He spent his time in prison, was tortured by the investigating authorities and when he was finally acquitted, the damage done was irreparable. Indian lawmakers should plan on setting up a Criminal Cases Review Commission as has been set up by the United Kingdom for review of criminal cases to discover whether there has been miscarriage of justice. Under section 163(1) of the CrPC, no inducement, threat or promise, as has been mentioned in section 24 of the Evidence Act, can be made to extort such statement from a person; and if a confession is to be recorded, it can only be recorded in the manner laid down in section 164 i.e. Article 21 right to life and personal liberty also related to malicious prosecution. 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. Malicious prosecution occurs when one party knowingly and with malicious intention initiate a baseless litigation against the other party. Change ), You are commenting using your Google account. ( Log Out /  1. A combining form meaning “computer,” “computer network,” or “virtual reality,” used in the formation of compound words. Its been more than one and a half years since the report was published but there is no active measure taken by the government yet. 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. In India, the offence of Malicious Prosecution is still a developing law and has not received the seriousness it deserves. Now coming to Section 197 of CrPC, it provides that when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of process against property, and malicious search. Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. But, the application of the law of malicious prosecution has two distinctions, first the application exclusively to the criminal law; and second the extending of application to civil law as well. ARTICLE 19 FREEDOM OF SPEECH AND EXPRESSION, Article 19 gives certain freedom to every single person, and Article 19(1) says that the All citizens have the right –. The biggest pain in a person’s life is a bad reputation. ( Log Out /  Malicious prosecution is also termed as malicious use of legal procedures. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. 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. Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal law. India is a country where even the highest judicial authority, the Supreme Court, is also held accountable. Lastly, section 358 of the Cr.P.C. Committing a person to confinement or trial acting contrary to law. [2] Ritesh, malicious prosecution under law of tort, (May.28,2018), https://blog.ipleaders.in/malicious-prosecution-law-tort/. ..... treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. Change ). 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. 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. READ ALSO Chander Kanta Lamba & Ors. This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. The English legal system has been very flexible enough as per the changing times but the conservative approach and thinking of Indian lawmakers hasn’t really worked out for the public good as there are still no remedies for civil claims which defame the person. “Public servants have, in fact, been treated as special category under Section 197 of CrPC to protect them from malicious or vexatious prosecution. Therefore, the apprehension of malicious prosecution because of the steps taken by the public prosecutor against the petitioner in 2018, is not acceptable. DEFENCES AVAILABLE TO MALICIOUS PROSECUTION CLAIMS. 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. 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 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 … This is as per provisions mentioned under Section 200 in the CrPC, 1973. In a recent judgment of the transistor bomb case of 1985, titled as “State Vs. Kartar Singh Narang and Ors.”, a Delhi court on 5th March 2020 acquitted 30 of the 59 accused persons after facing trial for more than 30 years holding that “It is amply clear from the evidence adduced on record that during the investigation of the present case, police officials had picked up various persons & made them approvers after pressurizing & torturing them. The present article will analyze various provisions of the Indian Penal Code and Code of Criminal Procedure under which a victim of malicious/wrongful prosecution can approach the court. This paper seeks to analyse and understand the concept of Malicious Prosecution. Various courts across the globe have had their views of what can be called as a prosecution … There is no doubt that government agents need to be given protection for the very nature of work that they undertake. It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause. 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. 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. In a suit of damages for malicious proceedings, it is essential to show that the prosecution complained of terminated in favour of the plaintiff. it must be shown that accused held an office which empowered him to commit any person for trial or to confinement or to keep such person in confinement. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can have any improper purpose which can motivate the prosecutor, such as to gain a private collateral advantage. 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. Public law remedy: the compensation by writ court judgements; Private law remedy: the civil law remedies under the law of tort; Criminal law remedy: the administrative relief of punishing the responsible officials under the criminal law. Section 197 of Cr.PC provides the procedure of prosecution of Judges and public servants. In a suit for damages of malicious prosecution, the plaintiff is also required to prove that the defendant prosecuted him without reasonable and probable cause. The provisions of section 239 CrPC are applicable only to Warrant Cases that are instituted on Police complaint. There are provisions in India for dealing with malicious proceedings, criminal suits and a claimant usually has no remedies. The designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. For the execution of malicious proceeding, it is necessary to be initiated by a criminal proceeding against an innocent person without any reasonable cause. 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, … 50 Lakhs to ISRO scientist Nambi Narayanan who was falsely accused of espionage by the Kerala Police. category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. In Maulad Ahmed V State of Uttar Pradesh, (1963) Supp 2 SCR 38 the Hon’ble Supreme Court held that a false entry made with the intention to save or knowing it to be likely to save the person from legal punishment is an offence under section 218 of IPC. Furthermore, this trauma is bound to cause great mental stress to the aggrieved person. Media is a collective communication tool which includes publishing, broadcasting and the Internet through several mediums like radio, television, newspaper etc. The existence of probable and reasonable cause is of no use if the prosecutor is prosecuted in ignorance of it. This was more witnessed in common wealth countries since they had a great influence of the English laws in their countries. The Malicious prosecution cases of wrongfully given justice where procedural misconducts[3] involving police or prosecutorial, malicious or being negligence results in wrongful prosecution of an innocent person. The High Court of Gujarat noted that the action can be taken under Section 340 of CrPC when it is expedient in the interests of justice, and the impact on the administration of justice by misuse of women-centric laws would make it expedient for the trial court to direct the prosecution (Sejalben Tejasbhai Chovatiya v. State of Gujarat, 2016 SCC OnLine Guj 6333), In the case of HS Bedi Vs NHAI in RFA 784/2010, the Hon’ble Delhi High Court interpreted the word claim u/s 209 of IPC and held that “The word “claim” in Section 209 of the IPC cannot be read as being confined to the prayer clause. Vs. State & Ors. There seems to be no specific reason why an action should not lie for the institution of unfounded and malicious proceedings before a court, or some administrative or domestic tribunal. This unnecessary expenditure in large amount is an injury to his property, POSITION OF MALICIOUS PROSECUTION IN INDIA. 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. Get Free Legal Industry Updates & Insights to your Inbox. Now some suggestions which would definitely make a difference in the scenario-. The court cannot take cognisance in devoid of a valid … in a written statement, counter affidavit, a reply, etc. The information of non-cognizable offence can be communicated under Section 155 of CrPC. Public law remedy does not preclude the right of compensation that is available under the civil law of tort. The informant would not be liable for malicious prosecution if the information furnished by him is … After the expiration of the said period, the claim is invalid and cannot be permissible in court. Attach images - Only PNG, JPG, JPEG and GIF are supported. In a claim for prosecution, the plaintiff can claim the damages on the following three counts –. ARTICLE 21 RIGHT TO LIFE AND PERSONAL LIBERTY. Thus it can be seen that a person prosecuted maliciously, his fundamental right to life and liberty of a person at multiple levels are violated. 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. Madhya Pradesh, Bihar, Haryana, Karnataka, Jharkhand, Gujarat, and notices were issued to the foreign nationals under sections 160 (police officer’s power to require attendance of witnesses) and 41A (notice of appearance before a police officer) of the Criminal Procedure Code (CrPC), 1973. Keywords: Malicious Prosecution, Malice, Judicial determination, Prosecutorial misconduct, Compensation, Miscarriage of justice, Remedies, Legislation, Constitution. In this procedure of law, the liberty is curtailed of the victim by violating his fundamental right to liberty. In a case wherein the municipal authorities failed to take any steps regarding the allegation of encroachment and illegal constructions in a manner as to cause danger, the Supreme Court (K.K. 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. 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 case under malicious prosecution should be filed within a year of a malicious suit. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. 2331/2014). The Law Commission in its 41st Report has observed that “The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige.”, That even though there is a bar under section 195 CrPC, the same does not leave a private complainant without remedy and the aggrieved party can approach the court by way of an application u/s 340 of Cr.PC before the concerned court. The Hon’ble Delhi High Court in Hotel Hans Private Limited & Ors vs M/S Mirage Hospitality & Ors, 2018 SCC OnLine Del 8237 directed registrar general to initiate criminal action against the party by exercising its power under Section 340 of Cr.P.C read with Sections 191 and 209 IPC for swearing false affidavits. The person suffered under Malicious prosecution can request the respective government to take criminal law remedies action against the concerned public official in pursuance of the provisions in Indian Penal Code and CrPC. The concept of malicious prosecution is a torch bearer of the protection of a person reputation. 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. 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. of NCT of Delhi, 247 (2018) DLT 31, wherein the Court highlighted the urgent need for a legislative framework for provided relief and rehabilitation to victims of wrongful prosecution, incarceration and asked the Law Commission to undertake a comprehensive examination of the aforesaid issued and make a recommendation thereon to the Government of India. 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. Courts are further barred from taking cognizance of offences relating to false evidence or relating to documents given in evidence in a proceeding before any Court, except on a complaint in writing of that Court or any of its authorized office. Chapter IX of the IPC, 1860 deals with offences committed by a public servant or offences relating to public servants. 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. They are left without any hopes for reintegration into society or rehabilitation since the best years of their life has been spent behind bars and invisible behind the high walls of prison. The supreme court states that illegal arrest cannot be washed away by setting the person arrested free. [3] Procedural misconduct is failing to an act or an illegal act, an attempt to sway the judiciary to wrongfully convict a defendant. In Subramanian Swamy v. Manmohan Singh and another[(2012) 3 SCC 64], at paragraph-74, it has been held that the … Section 197 of Cr.PC. The person suffered under Malicious prosecution can request the respective government to take criminal law remedies action against the concerned public official in pursuance of the provisions in Indian Penal Code and CrPC. Also, defences enumerated at point numbers 6 and 7 need serious brainstorming and thought to be put behind them. Since the concept in itself has been originated in common law. TERMINATION OF PROCEEDINGS IN THE FAVOUR OF THE PLAINTIFF. [1] Anusha22, malicious prosecution, (May.21,2018), https://www.legalbites.in/malicious-prosecution/. The state authorities and the private individual have little fear of law before making false statements before the courts. The said position has also been clarified by the Hon’ble Supreme Court in N. Natarajan vs B.K.Subba Rao, 2003 AIR (SC) 541 wherein the court held that-, “Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC. According to a case Riegel Vs. Hygrade Seed Co.1942– Malicious Prosecution is for the recovery of damages to person, property, or reputation, shown to have approximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with malice, and which has terminated unsuccessfully. 2002, N.O.C. 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 paper also mentions some suggestion to make the condition better in this law. The rationality of prosecution in India is a bit different than that in England, it is deemed to be a prosecution when it has reached a stage where calculable damage has been caused to the party defending that suit. The criminal justice system, as it stands, does not provide for an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions. The tort of malicious prosecution is currently feasible by way of other mechanisms all around the world. Every person has some rights given by the constitution in which article 21 is also included which means that every person has to right to live with freedom and personal liberty. On the above aspect the following ratio will have a bearing. Termination of the proceedings in the favour of the plaintiff. Mathews termed it a violation of DK Basu judgment of the Supreme Court "against malicious … The states in such cases should take action against the officials who are responsible for such prosecution. The court further held that “The indispensable ingredient of the said offence is that the offender should have done the act “being a public servant”. Subscribe to Legal Desire Email Newsletter to receive exclusive and early access to insights, reports and more. The person filing the case of malicious prosecution must have suffered any damage or harm and he has to prove the same in the court to initiate the proceeding. Pick all the topics you are interested in to fill your homepage with stories you'll love. Law is a living entity and it cannot remain the same and must go through a state of transition when the society needs it to. They are enshrined as a fundamental right in the Constitution of India. Also, a replica of the report is to be handed over to the informant under clause (2) of Section 154 of CrPC. A victim or a person having knowledge about the commission of a particular crime can file a criminal complaint with a competent Judicial Magistrate. An illustrative list of procedural misconduct would include the following: REMEDIES AVAILABLE FOR MALICIOUS PROSECUTION, The existing laws and case laws bring forward the three kind of court based remedies which are against malicious prosecution, incarnation. Later it spread its wings across the globe, in different countries. 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. 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. Badbahal, Deogarh 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.”. Required fields are marked *. Chapter XI of IPC, 1860 deals elaborately deal with giving false evidence and of offences against public justice. In common parlance, the word ‘Malice’ means unwillingness towards an individual. A good will often relates to moral values. To these proceedings civil law countries have adopted the concept in itself has been quite liberal in usage. 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