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. Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. “Public servants have, in fact, been treated as special category under Section 197 of CrPC to protect them from malicious or vexatious prosecution. 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. 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. 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. 2002 Orissa 75), the order of compensation is given for different republication under the law of torts. 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. Manak Chand (A.I.R. 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. For that matter, the wordings of Section 340 CrPC are significant. The existing laws and various case laws describes about the three different types of court based remedies against Malicious Prosecution and deals with it. 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. Later it spread its wings across the globe, in different countries. Give it a try, you can unsubscribe anytime. Now some suggestions which would definitely make a difference in the scenario-. The complaint is then reduced to written form. 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. 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 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. (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. In a claim for prosecution, the plaintiff can claim the damages on the following three counts –. In India suits nature which are malicious are mostly criminal and an absence of remedies for a suit filed maliciously under civil laws is of least concern over here but the laws governing the suits of criminal proceedings are also insufficient. 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. A victim or a person having knowledge about the commission of a particular crime can file a criminal complaint with a competent Judicial Magistrate. 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. Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal law. Public law remedy is the grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. This was more witnessed in common wealth countries since they had a great influence of the English laws in their countries. Various courts across the globe have had their views of what can be called as a prosecution … Your email address will not be published. The United States of America has been quite liberal in its usage and codification of the law of malicious prosecution. 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. the Special Court having jurisdiction in the area in which the wrongful prosecution occurred; the Special Court within the local limits of whose jurisdiction the applicant resides. 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. Dignity means as the state or quality of being worthy of respect. Withdrawal from prosecution (Section 321 of CrPc) Article shared by. 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 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. Then he examines, upon oath, the complainant and the witness (es), if any. The dismissal of the prosecution or the acquittal of the accused does not create any presumption in the absence of reasonable and probable cause. Decided on : Jul-05-2016. Define malicious prosecution: The CrPC should define “malicious prosecution” and “wrongful prosecution” in its definition clause so as to make the concepts clear. Change ), You are commenting using your Twitter account. 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. 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. Since the concept in itself has been originated in common law. 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 Supreme Court and High Courts have though time and again recognized the offence as one infringing the right to life and liberty of a person, there is little indulgence shown by the legislature to formulate a well-defined law to prosecute such offenders. Malicious prosecution occurs when one party knowingly and with malicious intention initiate a baseless litigation against the other party. 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”. New Zealand has codified the means discharging successful of innocent defendant. This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. In Subramanian Swamy v. Manmohan Singh and another[(2012) 3 SCC 64], at paragraph-74, it has been held that the … 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. 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, … 215 M.P.) The case under malicious prosecution should be filed within a year of a malicious suit. The provisions of section 239 CrPC are applicable only to Warrant Cases that are instituted on Police complaint. Define malicious prosecution: The CrPC should define “malicious prosecution” and “wrongful prosecution” in its definition clause so as to make the concepts clear. 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. provides for compensation to persons groundlessly arrested whereas section 250 of Cr.PC provides for compensation for accusation without reasonable cause. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. 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. 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. Committing a person to confinement or trial acting contrary to law. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. A good reputation means that the man has garnered good will in the society, and that is the greatest source of pleasure to him. “Malicious Prosecution” was extensively defined in the landmark case of West Bengal State Electricity Board v. Dilip Kumar Ray. All these aspects are considered as key of human rights in all the international doctrines and covenants. A case may fall both under section 182 and section 211 of the Indian Penal Code. 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) … But these are not easily available to all similarly situated persons. [2]  […], Role of Ministry of Information and Broadcasting, Introduction- Ministry of Information and Broadcasting (Ministry of I&B) is one of the earliest ministries that was set up after India’s independence. 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. 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. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. There are two types of satellite […], Judicial Approach on Freedom of Media and Media Trial, What is media? Sections 166, 167 & 218, Indian Penal Code are offences which relate to the manner of conduct of public servants where a duty is cast upon them to obey the direction of law, or to prepare documents, record or other writings. The biggest pain in a person’s life is a bad reputation. 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). The person who is maliciously prosecuted can file both the cases simultaneously. 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. Section 41 CrPC lays down certain conditions which a Police officer must satisfy before making an arrest. [5] Article 226 is a constitutional right which provides power to the high court to issue a writ for enforcement of fundamental right. category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. 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. INTRODUCTION. In such a strong democratic set up, it is only fair that absolute statutory immunity should not be granted to government agents. Malicious prosecution is the malicious institution against another convict or bankruptcy or liquidation case ineffective without fair and likely cause. Legal provisions regarding withdrawal from prosecution under section 321 of the Code of Criminal Procedure, 1973. The Court further stated that it is only after the exercise of the power under Section 190 CrPC, i.e. Hence his so many fundamental rights get trampled upon, for a crime that he or she hasn’t even committed. Keywords: Malicious Prosecution, Malice, Judicial determination, Prosecutorial misconduct, Compensation, Miscarriage of justice, Remedies, Legislation, Constitution. Therefore, the apprehension of malicious prosecution because of the steps taken by the public prosecutor against the petitioner in 2018, is not acceptable. Also, a replica of the report is to be handed over to the informant under clause (2) of Section 154 of CrPC. There is no doubt that government agents need to be given protection for the very nature of work that they undertake. 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. Under this the defendant becomes plaintiff and plaintiff becomes defendant. In a suit of damages for malicious proceedings, it is essential to show that the prosecution complained of terminated in favour of the plaintiff. 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