TERMINATION OF PROCEEDINGS IN THE FAVOUR OF THE PLAINTIFF. The paper also mentions some suggestion to make the condition better in this law. 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. There are two types of satellite […], Judicial Approach on Freedom of Media and Media Trial, What is media? however, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. The right to life article 21 means right to live with human dignity and all that goes along with it,  the  necessities of life such as basic nutrition, clothing and shelter and facilities for reading, writing and expressing themselves in diverse forms, freely moving about and mixing and with other fellow human beings and they must include the right to basic necessities for living a life and also the right to carry on functions and activities as constitute the bare minimum expression of human self. Failure to refute Section 313 CrPC statement Most significantly, it is then rightly underscored in para 21 that: Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). 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. [1] In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Court defined the term “malicious prosecution” in the following words:-, “A judicial proceeding instituted by one person against another, from wrongful or         improper motive and without probable cause to sustain it is a malicious prosecution.”[2]. Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal 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. Legal Bites is an Ed-tech platform launched in 2016. 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. 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 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. 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. Later it spread its wings across the globe, in different countries. ( Log Out /  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. 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. Procedure to File a Complaint- Application u/s 340 of CrPC, Bar u/s 195 CrPC and Sanction u/s 197 of CrPC, Section 195 of CrPC bars Court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. On the other hand, civil law countries have adopted the concept later in time. On the above aspect the following ratio will have a bearing. For that matter, the wordings of Section 340 CrPC are significant. DEFENCES AVAILABLE TO MALICIOUS PROSECUTION CLAIMS. 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. In New Zealand, for a successful action of malicious prosecution, the plaintiff should prove some points which are as follows; Studying about the various legal systems of the world, it can be expressly seen that both common law and civil law countries have adopted the concept of malicious prosecution in their legislations. 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. This was more witnessed in common wealth countries since they had a great influence of the English laws in their countries. 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”. In common parlance, the word ‘Malice’ means unwillingness towards an individual. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. The person prosecuted maliciously is restrained from doing certain acts, curtailing his or her Rights to Personal Liberty. The existing laws and various case laws describes about the three different types of court based remedies against Malicious Prosecution and deals with it. This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. 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. Section 197 (1) of the code 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 … [1] Anusha22, malicious prosecution, (May.21,2018), https://www.legalbites.in/malicious-prosecution/. At present in our country there is no statutory or legal scheme for compensating those people who are wrongfully incarcerated. 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). 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. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt, that under Section 197 of the ‘Code’ and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) … 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. All these rights and freedoms are guaranteed to every citizen, get curtailed and grossly violated in case of a victim who is maliciously prosecuted. The Court will have to act in the interest of justice on a complaint or otherwise. 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. 1. It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause. Your email address will not be published. In a suit of damages for malicious proceedings, it is essential to show that the prosecution complained of terminated in favour of the plaintiff. Despite this, instances of malicious prosecution 2 / conviction and wrongful incarceration of innocent persons are quite common. The case under malicious prosecution should be filed within a year of a malicious suit. 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. Under section 250 of CrPC, the accused can also claim compensation from the person who registered a false F.I.R. 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. In India, the offence of Malicious Prosecution is still a developing law and has not received the seriousness it deserves. 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. 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. Required fields are marked *. Dignity means as the state or quality of being worthy of respect. ( Log Out /  Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. 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. This is as per provisions mentioned under Section 200 in the CrPC, 1973. Also, it has time and again codified the tort in legislations. Therefore, the apprehension of malicious prosecution because of the steps taken by the public prosecutor against the petitioner in 2018, is not acceptable. 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. A false “denial”, except when the person responding is not aware, would constitute making a “claim” in Court under Section 209 IPC.”. 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. 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. 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. 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 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. (S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500) Mr Narayanan fought the battle for 24 years to get the award from Hon’ble Supreme Court. India is a country where even the highest judicial authority, the Supreme Court, is also held accountable. Majority of the suffering that a victim of malicious prosecution faces, are such rights which are given by the Constitution of India. Vs. State & Ors. 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 … There was no accusation against the appellants before filing of the FIR. One such example is the poorly drafted women laws. The judges have the independence of evolving new laws and acts or filling voids in between the existing laws. In Subramanian Swamy v. Manmohan Singh and another[(2012) 3 SCC 64], at paragraph-74, it has been held that the … 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. Decided on : Jul-05-2016. 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”. For the execution of malicious proceeding, it is necessary to be initiated by a criminal proceeding against an innocent person without any reasonable cause. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. Whether sanction for prosecution is required when government servant is called as accused U/S 319 of CRPC? Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. 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}. 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. This is for the obvious reason that the section 197 is intended to protect public servants from malicious prosecution for acts done in the discharge of duties. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. But the Magistrate cannot look into the statement of the accused in the case diary as it is an extraneous material. And at last it becomes a case of malicious prosecution and all they get is a judgment of acquittal. 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. 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