It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause. Court : Supreme Court of India. The Law Commission of India’s 1st Report on this topic dates back to 1956 (Liability of State in Tort) wherein the commission recommended the enactment of a suitable law to define the position on Government’s tortious liability, stating that it is necessary that law should, as far as possible be made certain and definite. 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. 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. Malicious prosecution is also termed as malicious use of legal procedures. It must next be shown that the accused corruptly or maliciously committed such person for trial or to confinement or kept him in confinement in the exercise of that authority knowing that in so doing he was acting contrary to law. Section 182. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. Also, it has time and again codified the tort in legislations. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. It also mentioned the various misconduct made by the authorities and what the various remedies available under it. In the case of Darshan Singh Vs Raj Singh, the Punjab and Haryana High Court upheld the conviction of the accused u/s 167 of IPC who was working as Halqa Patwari wherein the accused illegally made an entry in the revenue record without any order of the competent authority to help the other co-accused. The biggest pain in a person’s life is a bad reputation. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. 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. ( Log Out /  The amount of physical injury can also be involving through a maliciously instituted proceeding. It was an outcome of misusing the due procedure of law since 18th and 19th century in England. Later it spread its wings across the globe, in different countries. provides for compensation to persons groundlessly arrested whereas section 250 of Cr.PC provides for compensation for accusation without reasonable cause. 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. And at last it becomes a case of malicious prosecution and all they get is a judgment of acquittal. Malicious prosecution is a crime under section 211 of the Indian Penal Code (IPC) and is closely connected to the section 499 of the IPC, another crime of defamation. These short comings are in the form of numerous defences that can be availed of in a suit of malicious prosecution. 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. An explanation was added to section 197(1), CrPC to the effect that it would not be necessary to seek prior sanction from the Appropriate Government for prosecution of a public servant for any of the offences of sexual abuse. The existence of probable and reasonable cause is of no use if the prosecutor is prosecuted in ignorance of it. After the expiration of the said period, the claim is invalid and cannot be permissible in court. Committing a person to confinement or trial acting contrary to law. The designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. The judges have the independence of evolving new laws and acts or filling voids in between the existing laws. therefore he is being targeted for malicious prosecution within the State. 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. DEFENCES AVAILABLE TO MALICIOUS PROSECUTION CLAIMS. 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. 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. Your email address will not be published. If the complaint is not in written form. Falsely accusing or charging a person is made an offence under this section which is very akin to malicious prosecution. 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. 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. Withdrawal from prosecution (Section 321 of CrPc) Article shared by. But the Magistrate cannot look into the statement of the accused in the case diary as it is an extraneous material. Malicious prosecution occurs when one party knowingly and with malicious intention initiate a baseless litigation against the other party. 1. Under private law remedy, the person who is wrongfully prosecuted can file suit for monetary damages against the state under the vicarious liability. The commission works exclusively for ascertaining if there has been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario where there is sufficient proof endorsing a claim where justice has not been delivered in the way it should be those cases. On the above aspect the following ratio will have a bearing. 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 a claim for prosecution, the plaintiff can claim the damages on the following three counts –. They are-. 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 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. Mathews termed it a violation of DK Basu judgment of the Supreme Court "against malicious … 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 complaint is then reduced to written form. 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. 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. 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. 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. 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. When the public servant acts in the discharge of his public duty then such protection is necessary. 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 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 can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. Non-pecuniary assistance shall also include a specific provision for removing disqualifications attached to a prosecution or conviction, Keeping in mind the objective of efficiency in terms of time and process, it is recommended that the Special Court for the purpose of inquiry and adjudication herein, follow summary procedures as may be prescribed. [1] Involving, using or relating to computers, especially the internet. Moreover, a bad reputation also brings along the ill will of the society, as well as social non-acceptance and this is in direct deprivation of the fundamental right of right to life. (Harbhajan Singh Bajwa vs Senior Superintendent Of Police, 2000 CriLJ 3297). 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 Hon’ble Supreme Court observed the difference between malicious use and malicious abuse of legal procedures. Public law remedy is the grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. Malicious prosecution has also caught a very strong footing in the United States, probably because of holding the person’s liberty and reputation in the highest regard. 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. 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. [4] Article 32 gives the right to constitutional remedies which means a person can go to the supreme court to protect its fundamental rights. : Statute of Limitations, which provides a limitation period for legal action. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties (D T Virupakshappa vs C Subash, Supreme Court, 2015). Also, defences enumerated at point numbers 6 and 7 need serious brainstorming and thought to be put behind them. Decided on : Jul-05-2016. The information of non-cognizable offence can be communicated under Section 155 of CrPC. Malicious prosecution is also termed as malicious use of legal procedures. At present in our country there is no statutory or legal scheme for compensating those people who are wrongfully incarcerated. [2] Ritesh, malicious prosecution under law of tort, (May.28,2018), https://blog.ipleaders.in/malicious-prosecution-law-tort/. 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. A combining form meaning “computer,” “computer network,” or “virtual reality,” used in the formation of compound words. The article discusses malicious prosecution under law of torts. The instances of those people who are being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. A good will often relates to moral values. TERMINATION OF PROCEEDINGS IN THE FAVOUR OF THE PLAINTIFF. "MALICIOUS PROSECUTION" KUWJ's habeas corpus petition filed through advocate Wills Mathews had termed Kappan's arrest "illegal detention, arbitrary and unconstitutional". Under Section 257 of CrPC, in case of summons case, the complainant can withdraw complaint against all or any of the accused, at any time before a final order is passed. If the complaint is not in written form. Further, after the acquittal or discharge of the defendant/named offender(s) in the FIR, he can file a case of malicious prosecution and defamation as well. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. The underlying sentiments being that such person should not have been subjected to these proceedings. category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. Keywords: Malicious Prosecution, Malice, Judicial determination, Prosecutorial misconduct, Compensation, Miscarriage of justice, Remedies, Legislation, Constitution. Back in the 18th and 19th century the law of malicious prosecution matured in England. Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Those persons were warned that if they did not depose as per demands of police, then they would be made an accused in the present case”. Vs. State & Ors. It acknowledges not just the importance of a person’s reputation, but also the trauma every person has to suffer while dealing with any litigation and the consequent loses. It also gives a brief knowledge about how and what is the position of the law in India and how it is dealing with. Malicious prosecution has its origin in England and evolved in 18th and19th century. 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. 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. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Therefore Section 19 PC Act directs to take a sanction from the competent authority for the prosecution of a public servant. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. Despite this, instances of malicious prosecution 2 / conviction and wrongful incarceration of innocent persons are quite common. The tort of malicious prosecution is currently feasible by way of other mechanisms all around the world. 50 Lakhs to ISRO scientist Nambi Narayanan who was falsely accused of espionage by the Kerala Police. Under section 250 of CrPC, the accused can also claim compensation from the person who registered a false F.I.R. [1] Anusha22, malicious prosecution, (May.21,2018), https://www.legalbites.in/malicious-prosecution/. 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. 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. 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