On Dealing with Malicious Prosecution

K Rajasekharan

Advocate, Thrissur Bar

Malicious cases are on the increase. The educated and rich sections of society such cases are being used as an easy tool to bring someone down. One reason for this the emergence of many poorly drafted women laws enacted for the noble purpose of ending atrocities against women. Many of the cases relating to marriage and family matters are frivolous ones narrating noting but fairy tales. Males are also not reluctant in filing such cases to win somehow. Some of the males involve woman and use sexual harassment as an easy tool to settle old scores on others. Therefore it is necessary for anyone to know how one can effectively deal with malicious cases which he may be slapped with at times.

Malicious Prosecution here refers to the practice of filing of any civil or criminal cases that has neither any substantive value nor for getting any genuine relief but intended to injure the defendant or bring him to a negotiating table or to set an old score out of some egoistic clashes. In other words, malicious prosecution is the institution of unnecessary case against another without any probable cause and is an abuse of the process of the court. When such a case is ordered in favour of the defendant the defendant gets the right to initiate civil of criminal case against the original plaintiff for either punishing him or seeking civil damages. Filing a malicious case against a person with no genuine cause or to put him/her on hassles is an absolute abuse of the judicial process. It has to be dealt with seriously by the society, particularly in the context of exponential increase in the number of such cases.

The basic ingredients of a malicious case are:-

• ·         The original case must have ended in clear acquittal of the defendant
• ·         The case should have been on genuine grounds  or any just cause
• ·         The case must have been pursued mainly for injuring the other.

In fact the prosecutors and the law enforcement officials have immunity from unnecessary prosecution while engaging in their official duties but if anybody can prove that the prosecutor or law enforcers have acted in excess of their normal scope of authority they cannot claim such immunity. In such a case they would also come under the charge of malicious prosecution and consequent punishment of civil and criminal nature. If a person can prove that he/she has suffered monetary loss such as lost wages, loss of employment, advocate fee paid etc in the course of any malicious prosecution against him he may be awarded the actual cost.

One can file a case against malicious prosecution not only against the prosecutor or the police, but also against the person who had set the criminal action in motion by registering the First Information Statement before the police or filing a complaint before the magistrate.

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.  Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. What the section 211 of IPC says is that if anyone institutes a criminal proceeding intended to cause injury to any person knowing that there is no lawful ground, he shall be punished with jail term of either description for two years or with fine. If proceeding is for an offence chargeable with death or life term or for seven years the punishment shall be for 7 years. The crime is a non-cognisable one, triable by magistrate or sessions judge as the case be.  

Similarly the Section 499 states whoever by words makes any imputation concerning any person intending to harm the reputation of a person is said to defame that person. The section 500 of the IPC provides for punishment for defamation.  

The person prosecuting someone for filing a malicious case must establish that the accused had intention to cause injury - section 44 of the IPC defines the term “injury” - to the reputation or property. Injury, as per the definition, means any harm caused to any person in body, mind, reputation or property. It must also be proved beyond doubt that the accused had knowledge of the fact that no just cause exists for filing the original case.  

However, if the allegation made in the case is true or conveys a caution to the society it does not fall within the ambit of defamation.   Either the inability of a complainant in the original case to prove the charges or the falling of his/her the evidence short of required standard in trial is not a valid ground to prove malice. The acquittal of a person on some technical grounds is not a valid ground for anyone to file a case against the petitioner for malicious prosecution. A statement of oath falsely supporting the prosecution case against an accused or a statement to the police, do not fall within the meaning of section 211 of the IPC. What is really required is to clearly prove the malice, injury and culpable nature of the prosecution in the original case in order to file a case against petitioner of a malicious case.

NB: This write up was originally published on Lawyers Club India site at http://www.lawyersclubindia.com/articles/On-Dealing-with-Malicious-Prosecution-8200.asp