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. Chapter IX of the IPC, 1860 deals with offences committed by a public servant or offences relating to public servants. It refers to a deliberate crime, performed without a … 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. This essentially express present day principles of elucidate the claims regarding malicious prosecution. Law Matters Centre for Research, Education, and Social Action (LaMCRESA) 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. But these are not easily available to all similarly situated persons. The state authorities and the private individual have little fear of law before making false statements before the courts. 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. ( Log Out /  They are enshrined as a fundamental right in the Constitution of India. In this procedure of law, the liberty is curtailed of the victim by violating his fundamental right to liberty. Decided on : Jul-05-2016. 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 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. [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]. 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). 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 remedies for the victims in such cases can be availed under public law, civil law and criminal law. 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. Committing a person to confinement or trial acting contrary to law. This is as per provisions mentioned under Section 200 in the CrPC, 1973. Many women till date have capriciously filed suits to obtain benefits but the victims of such suits have got no remedy. This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. 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. On the other hand, malicious prosecution has been defined as an action for damages brought by or against who a criminal prosecution, civil suit or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. Article 21 right to life and personal liberty also related to malicious 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. 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 –. ARTICLE 21 RIGHT TO LIFE AND PERSONAL LIBERTY. 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. 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. 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. A victim or a person having knowledge about the commission of a particular crime can file a criminal complaint with a competent Judicial Magistrate. Reasonable suspicion that the plaintiff committed the alleged crime for which he was prosecuted; An honest belief by defendant in the guilt of the plaintiff; The existence of a reasonable or probable cause for the prosecution of the plaintiff can serve as a compete defence; When the prosecution is the discretion or the act of the officers of law; Contributory Negligence in a situation where the plaintiff is at fault. It was a sure-shot solution to quash false and trumped-up charges and malicious prosecution. [1] Anusha22, malicious prosecution, (May.21,2018), https://www.legalbites.in/malicious-prosecution/. Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. 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. [3] Procedural misconduct is failing to an act or an illegal act, an attempt to sway the judiciary to wrongfully convict a defendant. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the person accused. It also mentioned the various misconduct made by the authorities and what the various remedies available under it. This unnecessary expenditure in large amount is an injury to his property, POSITION OF MALICIOUS PROSECUTION IN INDIA. 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.”. He can lodge a private complaint to the Magistrate alleging false F.I.R. 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. 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. 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 … ( Log Out /  A police officer if misuses his power of arrest, he can be tried and punished under Section 166 of IPC (Lalita Kumari Judgment). The designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. Section 19 of the Prevention of Corruption Act protects the public servant against frivolous and malicious prosecution. [4] Article 32 gives the right to constitutional remedies which means a person can go to the supreme court to protect its fundamental rights. Patel And Anr vs State Of Gujarat And Anr. The person who is maliciously prosecuted can file both the cases simultaneously. 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. Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal law. Section 19 of the Prevention of Corruption Act protects the public servant against frivolous and malicious prosecution. And at last it becomes a case of malicious prosecution and all they get is a judgment of acquittal. Back in the 18th and 19th century the law of malicious prosecution matured in England. 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. 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. giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. The reason for such examination is to see whether a prima facie case is made against the accused person and to … Withdrawal from prosecution (Section 321 of CrPc) Article shared by. 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. 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. 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. 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. The Hon’ble Supreme Court observed the difference between malicious use and malicious abuse of legal procedures. In all such cases, individuals who are wrongfully prosecuted, implicated and incarcerated for several precious years of their lives, even on an honorable acquittal, have not much to gain. The provisions of section 239 CrPC are applicable only to Warrant Cases that are instituted on Police complaint. A false “denial”, except when the person responding is not aware, would constitute making a “claim” in Court under Section 209 IPC.”. For the execution of malicious proceeding, it is necessary to be initiated by a criminal proceeding against an innocent person without any reasonable cause. Malicious prosecution is also a concept which is inter woven with various fundamental rights given by the Constitution of India. 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. 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. 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 … Subscribe to Legal Desire Email Newsletter to receive exclusive and early access to insights, reports and more. 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. For an offence under section 220 I.P.C. Under this the defendant becomes plaintiff and plaintiff becomes defendant. 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). 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. A police officer deliberately filing a false FIR is an offence under Section 167, 218 of IPC. 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. This is as per provisions mentioned under Section 200 in the CrPC, 1973. 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.) READ ALSO Chander Kanta Lamba & Ors. 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. Save my name, email, and website in this browser for the next time I comment. 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. 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. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. 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. 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, … It explains that malicious prosecution would mean the malicious institution of unsuccessful proceedings against the applicant, without reasonable or probable cause. 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. False information, with intent to cause public servant to … The supreme court states that illegal arrest cannot be washed away by setting the person arrested free. Court : Supreme Court of India. 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. 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. Chapter X of IPC further deals with contempt of lawful authorities of public servants. 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. 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. 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. Malicious prosecution is also termed as malicious use of legal procedures. 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 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. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Especially point number 1,2 and 3 are such where in the motive needs to sufficiently proved by the aggressor in case of a claim of malicious prosecution against him, since the order/indictment of the court would be contrary to his claim. 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. MALICIOUS PROSECUTION AND FUNDAMENTAL RIGHTS. Whenever any information is given to the authorities and when the said authority finds that the averments made in the complaint are false, it is for the said authority to initiate action under Section 182 I.P.C. TERMINATION OF PROCEEDINGS IN THE FAVOUR OF THE PLAINTIFF. 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. The statements under section 161 CrPC are part of the documents mentioned under section 173 CrPC. 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. PLAINTIFF SUFFERED DAMAGE AS A RESULT OF THE PROSECUTION, In a suit of damages for malicious prosecution, it is the other essential element which the plaintiff is required to prove that the plaintiff had suffered the damage and as a result of the prosecution. 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. A combining form meaning “computer,” “computer network,” or “virtual reality,” used in the formation of compound words. It also gives a brief knowledge about how and what is the position of the law in India and how it is dealing with. 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Stories You 'll love her rights to personal liberty also related to malicious prosecution a... Other mechanisms all around the world the words of former CJI Deepak Misra while awarding a compensation Rs! State to help the innocent victims of such a body may cause serious damage the... The applicant, without reasonable or probable cause this concept is to protect every person mindless... A limitation period for legal action IX of the Indian Penal Code point numbers 6 and 7 need brainstorming! Withdrawal from prosecution under the vicarious liability is still a developing law and law malicious!, newspaper etc State Electricity Board v. Dilip Kumar Ray is maliciously prosecuted file... Or relating to public servants no doubt that government agents or offences relating to computers, especially the internet the... Right of compensation that is available under the vicarious liability an advocate practising before courts in each district adjudicating... 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