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. Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. 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. Chapter IX of the IPC, 1860 deals with offences committed by a public servant or offences relating to public servants. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. 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. 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.”. Termination in favour of the plaintiff does not mean that the judicial determination of his innocence; it means absence of judicial determination of his guilt. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Much of it can be attributed to the ineffective and lengthy procedure to prosecute such acts and apathetic approach of the lower courts to initiate action when such acts are brought to their notice. It was an outcome of misusing the due procedure of law since 18th and 19th century in England. While civil law remedy gives the option of filing a civil suit for damages, criminal law deals with prosecuting the wrongdoer for malicious prosecution and perjury. Later it spread its wings across the globe, in different countries. Various laws have enacted legislations to that effect and laid down guidelines for the usage of the tort through case laws. 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. ARTICLE 21 RIGHT TO LIFE AND PERSONAL LIBERTY. Sardar Vallabhbhai Patel was India’s first minister for […], CONFLICT OF TRIAL BY MEDIA WITH FREEDOM OF SPEECH AND EXPRESSION IN CONTEXT OF INDIA: CRITICAL ANALYSIS, Abstract – The quality and significance of media in Democracy is very much perceived. therefore he is being targeted for malicious prosecution within the State. There is no doubt that government agents need to be given protection for the very nature of work that they undertake. 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. 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). 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. The person who is maliciously prosecuted can file both the cases simultaneously. For that matter, the wordings of Section 340 CrPC are significant. Malicious prosecution occurs when one party knowingly and with malicious intention initiate a baseless litigation against the other party. There was no accusation against the appellants before filing of the FIR. 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. In Subramanian Swamy v. Manmohan Singh and another[(2012) 3 SCC 64], at paragraph-74, it has been held that the … Define malicious prosecution: The CrPC should define “malicious prosecution” and “wrongful prosecution” in its definition clause so as to make the concepts clear. The Indian legal system has over the time failed to address the actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative thinking behind and laws of which they have got absolute discretion. 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. 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. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. This is as per provisions mentioned under Section 200 in the CrPC, 1973. It refers to a deliberate crime, performed without a … This paper also consist how the laws related to it evolved and what are the various changes need to be made. Malicious is a fixed hate or something done with evil intention or motive not as a result of sudden passion. The designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. [5] Article 226 is a constitutional right which provides power to the high court to issue a writ for enforcement of fundamental right. 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. India is a country where even the highest judicial authority, the Supreme Court, is also held accountable. 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. 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. 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. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. 768108, Public Intellectuals and Pandemics: Questions and Dilemmata, UP Hoardings: Upholding Privacy, The Chilling Effect and a Missed Opportunity, Law Matters Centre for Research, Education, and Social Action (LaMCRESA). [1] Involving, using or relating to computers, especially the internet. Section 197 of Cr.PC provides the procedure of prosecution of Judges and public servants. Among all other duties the main […]. Change ), You are commenting using your Twitter account. This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. 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. In common parlance, the word ‘Malice’ means unwillingness towards an individual. Define malicious prosecution: The CrPC should define “malicious prosecution” and “wrongful prosecution” in its definition clause so as to make the concepts clear. 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. Malicious prosecution has its origin in England and evolved in 18th and19th century. 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. 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 statements under section 161 CrPC are part of the documents mentioned under section 173 CrPC. The existence of probable and reasonable cause is of no use if the prosecutor is prosecuted in ignorance of it. Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. 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. Change ), You are commenting using your Google account. 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. To clarify, the word “claim” would mean both not only a claim in the affirmative to the existence of fact(s) as, to illustrate, may be made in a plaint, writ petition, or an application; but equally also by denying an averred fact while responding (to the plaint/petition, etc.) It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause. Vs. State & Ors. When the public servant acts in the discharge of his public duty then such protection is necessary. Legal Bites is an Ed-tech platform launched in 2016. MALICIOUS PROSECUTION -A COMPARATIVE STUDY OF INDIA AND ENGLAND ... of the protest which at that point is trailed by an assessment of such objection by methods for request in open court under Sec 202 of CrPC the prosecution is considered to have started. 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. In this procedure of law, the liberty is curtailed of the victim by violating his fundamental right to liberty. In a suit of damages for malicious prosecution, it is another essential element which the plaintiff has to prove that the defendant acted maliciously/wrongfully in prosecuting him and not with a mere intention for carrying the law into effect. (Bharatbhai Chandubhai Gadhia vs State Of Gujarat, in R/SCR.A/951/2014). Public law remedy does not preclude the right of compensation that is available under the civil law of tort. Malicious prosecution is also termed as malicious use of legal procedures. 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 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. He spent his time in prison, was tortured by the investigating authorities and when he was finally acquitted, the damage done was irreparable. A bad reputation in society negates the work of a person who is trying towards creating a good will. In Subramanian Swamy v. Manmohan Singh and another4, at paragraph-74, it has been held that the provisions dealing with Section 197 CrPC must be construed in such a manner … Save my name, email, and website in this browser for the next time I comment. Dignity means as the state or quality of being worthy of respect. This is just one of the few cases among thousands, most of which go unreported and in many the victim doesn’t even claim compensation. 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. Withdrawal from prosecution (Section 321 of CrPc) Article shared by. 50 Lakhs to ISRO scientist Nambi Narayanan who was falsely accused of espionage by the Kerala Police. The information of non-cognizable offence can be communicated under Section 155 of CrPC. however, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. In India, the offence of Malicious Prosecution is still a developing law and has not received the seriousness it deserves. 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. 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. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. Chapter XI of IPC, 1860 deals elaborately deal with giving false evidence and of offences against public justice. [2] Ritesh, malicious prosecution under law of tort, (May.28,2018), https://blog.ipleaders.in/malicious-prosecution-law-tort/. The Malicious Prosecution infringes fundamental rights of the accused person and then the accused can invoke writ jurisdiction under article 32[4]or 226[5] and then obtain from the writ courts the relief of grant of compensation to the victim who suffered bodily, mental and social harm. [3] Procedural misconduct is failing to an act or an illegal act, an attempt to sway the judiciary to wrongfully convict a defendant. Public law remedy is the grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. This is as per provisions mentioned under Section 200 in the CrPC, 1973. After the expiration of the said period, the claim is invalid and cannot be permissible in court. Various courts across the globe have had their views of what can be called as a 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. Broad spectrum of clarifying is applied to the principles of the tort so as to give maximum benefit or profit to the victim, which in return also acts as an essential deterrent for malicious litigations. Enter your email address to follow this blog and receive notifications of new posts by email. It also mentioned the various misconduct made by the authorities and what the various remedies available under it. in a written statement, counter affidavit, a reply, etc. 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. At present in our country there is no statutory or legal scheme for compensating those people who are wrongfully incarcerated. Subscribe to Legal Desire Email Newsletter to receive exclusive and early access to insights, reports and more. 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. There needs to be compensatory assistance by the State to help the innocent victims of miscarriage. Whether sanction for prosecution is required when government servant is called as accused U/S 319 of CRPC? They are-. Section 19 of the Prevention of Corruption Act protects the public servant against frivolous and malicious prosecution. ..... 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. 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. So, it essentially means that this is just a beneficial provision of law, which enables the court to save the accused from … Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. Court : Supreme Court of India. 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. But these are not easily available to all similarly situated persons. Therefore, malicious prosecution case is capable of causing a great deal of injury to the person who is on the receiving end of a maliciously instituted proceeding. Withdrawal from prosecution (Section 321 of CrPc) Article shared by. Media is a collective communication tool which includes publishing, broadcasting and the Internet through several mediums like radio, television, newspaper etc. 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. He can lodge a private complaint to the Magistrate alleging false F.I.R. The underlying sentiments being that such person should not have been subjected to these proceedings. No. The report regards the offence as ‘miscarriage of justice’ and has laid down detailed analysis of the law in India and has suggested measures such as forming special courts, making the trial a summary procedure and awarding compensation (both pecuniary and non-pecuniary) to the victim. Criminal charges often include arrest as an important consequence of the procedure once the law is set. There was no accusation against the appellants before filing of the FIR. Also, defences enumerated at point numbers 6 and 7 need serious brainstorming and thought to be put behind them. Could I challenge the proceeding in the court? Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh, Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7, Your email address will not be published. The history or the origin of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. Under section 250 of CrPC, the accused can also claim compensation from the person who registered a false F.I.R. 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 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. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. Verifications being made under the sanction of a solemn declaration, a false verification will render the party verifying liable to a prosecution for an offence under Sections 191 and 193, Indian Penal Code. “Public servants have, in fact, been treated as special category under Section 197 of CrPC to protect them from malicious or vexatious prosecution. 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. , it is only after the exercise of the accused in the landmark case of Maneka Gandhi v. Union India! Criminal and civil cases can be availed of in a claim for prosecution is also a concept which inter. Determination, Prosecutorial misconduct, compensation, Miscarriage of justice on a or! 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