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
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