Friday, August 19, 2022

Malicious prosecution, the damage it wreaks and remedies

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By Usara Fatima Kazi

“The entire prosecution initiated by the State Police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant.”

Former Chief Justice of India Justice Dipak Misra made the above observation while awarding Rs 50 lakh to ISRO scientist Nambi Narayanan, who had been  wrongly charged of espionage by Kerala Police. “Nambi Narayanan v. Siby Mathews”[1].

Narayanan struggled for 24 years to secure this award from the Supreme Court. Not only did he lose his reputation as a distinguished scientist but also his finances he had worked so hard to gain after being wrongfully accused of being an enemy of the State. When he was ultimately acquitted, the harm had been done and he was unable to return to his normal life. Only a small percentage of the thousands of incidents that go undisclosed and, in many cases, the aggrieved does not even seek reimbursement or damages in such cases.

Depending on the circumstances, victims may be able to seek redress under three different branches of the legal system: public law, civil law, or criminal law. Article 21[2] mandates that any breach of a basic right be compensated by the State. Criminal law deals with pursuing the perpetrator for crimes such as malicious prosecution and perjury, while civil law remedies allow one to sue for damages in court. There are several provisions in the Code of Criminal Procedure and the Indian Penal Code for victims of malicious prosecutions to take their case to court.

Chapter X of the IPC is in accordance with public officials’ disrespect of legitimate authority. Giving false information to public officials with the knowledge that it is untrue and the desire to harm others is a crime, and it is addressed in this chapter along with others. Falsely claiming that someone committed a crime in order to get a FIR against them is covered under this chapter. At any time, an authority may take action under Section 182[3] if it receives information and determines that the allegations asserted in the complaint are untrue.

In accordance with Section 211 of the Indian Penal Code, a person commits the more serious offence of instituting or causing to be set in motion any criminal proceedings against that individual, or incorrectly charges that person with having transgress and committing an offence, with the insistent to cause damage to that person, regardless of the fact that there is no just or legal basis for such action or charge against that person. A case may come within the purview Section 182 as well as Section 211 of the Indian Penal Code at the same time.

The proper course of action in the case of a person who provides particulars to a public servant that amounts to an untrue charge against a specific person or persons, and it appears to be the case that the particulars was given acknowledging that there was no just or lawful basis for providing it, is to ensue against him for the more serious offence under Section 211 of the Indian Penal Code.

In India, the crime of malicious prosecution is still in the early stages of development and has not yet gotten the recognition it deserves. Since the beginning of the decade, the amount of false cases arising in marriage disputes, civil issues escalating into white-collar crimes, and unlawful arrests by police agencies has only grown. When it comes to making false claims in front of the courts, both the government and the private person show little regard for the law. Much of it may be attributable to the ineffectual and time-consuming method for prosecuting such offences, as well as the indifferent response taken by subordinate courts when such acts are taken to their attention.

Despite the fact that the Supreme Court and the High Courts have repeatedly recognized the infraction as one that violates a person’s right to life and liberty, the government has shown little interest in enacting a clearly defined statute to punish those who commit such crimes.

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As far back as 1956, the Law Commission[4] of India’s first report on this issue (Obligation of State in Tort) said that the law should, as much as practicable, be made clear and precise in order to clarify the position of the Government’s tortious liability. According to the 277th Law Commission of India Report of August 2018, the Delhi High Court had requested that the Law Commission conduct a comprehensive examination into the requirement for a legislative framework to provide relief and rehabilitation to victims who have been wrongfully prosecuted, incarcerated, and the Court emphasized the pressing need for a legislative framework to provide relief and rehabilitation to victims of unlawful prosecution, imprisonment. Reporting the crime as a “miscarriage of justice” and recommending actions such as organizing special courts, making the trial a summary process, paying compensation (monetary and non-monetary) to the victim are some of the recommendations made in the report. The study was issued more than a year and a half ago, but the administration has failed to take any action.

Malicious prosecution in civil and criminal proceedings

In the eyes of the law, the malicious filing of a civil lawsuit is not a cause of actionable conduct. If A brings a false criminal case against B with malicious intent and without reasonable and probable grounds, B is likely to be found not guilty as we’ve shown above. The criminal case has caused him harm, and he may sue A in civil court for that harm. It’s not possible for A to sue again for damages and expenses if he sues B falsely and frivolously and B wins the case.

It’s because in civil litigation, the matter is tried in public, and if the plaintiff wins, his or her reputation would be restored. It’s clear that the harm to a person isn’t up for debate here. There is no chance of a person going to prison or receiving any other punishment in a civil dispute. Courts rule that costs be granted to a winning litigant if he or she is entitled to it, therefore there is no further action required for the costs of the lawsuit to be reimbursed. Because an ordinary civil action does not definitely and naturally cause harm to the person sued, an action for false and malicious prosecution does not lie. Damages for mental anguish or additional expenses above those imposed on the defeated party are not awarded by a court of law.

Damage to a person’s reputation is inferred in the event of a criminal prosecution including scandal for reputation or the probable loss of life and liberty.[5] As a result, the defendant in a civil action cannot file a second claim for damages since his fame, person, or property have not been damaged. If an action for malicious prosecution were authorized in respect of a civil complaint, there would be a never-ending cycle of proceedings, and the litigation would never end. In the event that A files a civil complaint against B, the litigation is determined in B’s favor. B will then initiate a civil complaint against A for the wrongful establishment of a lawsuit. There is no end to the chain of lawsuits, and this is why civil lawsuits for damages are not permitted in the United States.

In order to effectively sue his prosecutor, a person who has been harmed by the prosecution may only do so if the prosecution has caused him some harm. He can’t sue if he doesn’t experience any harm. There are three types of harm that may occur, and they are listed below.

·       When a person is charged with a crime that might result in the loss of his life, limb, or freedom, he is subjected to physical harm.

·       Prosecuting someone for a crime that disparages their character might cause damage to their reputation.

·       To lose money because of having to spend money on charges required to clear his name of the accusations against him (for example, lawyer’s fees) or lose business because of the trial or processes.

Despite the fact that the harm has been done, it does not need to be proven by anybody. In these kinds of scenarios, it’s reasonable to assume. There is no requirement to establish harm to a person’s reputation in circumstances when a person’s character has been tarnished by a scandal.

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There is no loss of reputation if one is punished for an offence that is just a technical violation of a bye-law that does not reflect on one’s moral character. To provide an example, the court ruled[6] that there was no loss of reputation for non-compliance with notice to remove a nuisance on one’s own premises under the Public Health Act in Wiffen versus Baily. The plaintiff may not be entitled to sue for damages since the offence for which the plaintiff was accused was only punishable by a fine, and no physical harm was done to the plaintiff. As a result, only punitive damages are awarded in cases of malicious prosecution, and these penalties are meant to punish the plaintiff for bringing the issue to the court.


The standing laws and case laws bring frontward the three kinds of court-based remedies which are against malicious prosecution, incarnation.

They are:

  • Public law remedy: the reimbursement by writ court judgments
  • Private law remedy: the civil law remedies as per the law of tort
  • Criminal law remedy: the administrative relief of penalizing the accountable officials as per the criminal law

The public and private law remedies are both monetary in nature, but the criminal law remedy is a criminal proceeding against the authorities in question that must be pursued by the relevant government.

Public law remedy

“The Malicious Prosecution infringes fundamental rights of the accused person and then the accused can pray to writ jurisdiction that are provided under Article 32 or 226 and then attain from the writ courts the relief of allowance of compensation to the aggrieved who abided injury bodily, mental and social harm.”

The entitlement to compensation under the civil law of tort does not prevent the use of a public law remedy.

Private law remedy

Under the vicarious responsibility theory of private law, a person who has been wrongly convicted can sue the state for financial damages. The individual who is being wrongfully prosecuted might submit both cases at the same time.

Also Read: Allahabad High Court grants conditional bail to accused in multi-crore bank loan scam

Criminal law remedy

“The person grieved under Malicious prosecution can appeal the corresponding government to take criminal law remedies action in the case of the concerned public official in undertaking of the provisions in Indian Penal Code and Cr PC. The Apex Court states that illegal arrest cannot be washed away by setting the person arrested free.”

In such circumstances, the states should prosecute the officials who are accountable for the conviction.


Malicious prosecution is a misappropriation of the judicial procedure in which the law is incorrectly set in motion on a criminal acquisition. To win, the accuser must show the confirmation that there was a action without fair and reasonable cause, that it began with malice, and that the judgment was given in his favor. It is important to show that the accuser grieved losses as a consequence of the prosecution. He has the burden of evidence. He needs to demonstrate that malice exists.

Previous stained relationships, unreasonable and inappropriate actions such as promoting the accusation or fabricating evidence can all be used to display malice.

Though carelessness alone does not prove malice, inappropriate behavior such as hurriedness, recklessness, or a refusal to inquire might be some evidence. The malicious establishment of failed criminal, bankruptcy, or liquidation actions against someone without rational or probable grounds is known as malicious prosecution. This tort strikes a compromise between opposing ideals, such as everyone’s right to bring offenders to fairness and the need to prevent false allegations against guiltless people. Malicious prosecution is a misuse of the judicial procedure in which the law is incorrectly put forth on a criminal charge. It’s an attempt to sabotage the legal system’s proper operation.

Usara Fatima Kazi is a third-year B.A L.L.B (H) student ofMaharashtra Law University.

[1] 2018 SCC OnLine SC 1500

[2] The Constitution of India, 1950.

[3] Indian Penal Code, 1860.

[4] A statutory and an Independent Body made to keep an eye on the laws.

[5] Mohamad Amin v. Jogendra Kumar Banerji, AIR 1947 PC 108

[6] Wiffen v. Bailey (1915) I KB 600

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