Malicious prosecution

Abstract

Malicious prosecution is said to be worse than the being convicted for a crime itself.
Malicious prosecution could be understood as a stage, or like an outcome one might say, of
an error in criminal justice system (CJS). This error is not just present in one particular
country’s’ CJS but all systems globally, but that thing that must be noted is the way these
systems compensate their victims of this error. Recently, Allahabad High Court- Uttar
Pradesh, India- declared Vishnu Tiwari, 43-Year-old, innocent in the rape case after he had
served 20 years behind the bars. According to reports, Vishnu never has resources back in the
year 2000 to hire lawyers and the fact that there was negligible amount of evidence against
him was ignored blatantly and the case was solely based on the female’s testimony. During
the time that he (Vishnu Tiwari) served in jail, he lost his whole family and property. Now at
the age of 43 he has nothing but a rock strong will to rebuild his life back from scratch. The
judicial system merely apologized for the inconvenience caused to him. An apology for
wasting 20 years of his life seems quite less, don’t you think so? This research paper explores
the cases of malicious prosecution in India and takes references from legislations and
compensation systems around the world to illustrate a need of appropriate compensatory
system in India too. The research also highlights how malicious prosecution cases are a
concern of basic human rights violations and need to tackle them with same level of
seriousness. The research paper also sheds light upon various remedies available currently in
different Indian laws. I. Introduction

The ultimate purpose of the national as well as international law is to safeguards the human
rights of the people. It is the constitutional mandate of judiciary to protect human rights to the
citizens. Supreme court and High court are empowered to take action to enforce these rights.
Machinery for redress is provided under Article 32 and Article 226 of the constitution. An
aggrieved person can directly approach the Supreme court and High court of the concerned
state for the protection of his/her fundamental rights, redress of grievances and enjoyment of
the fundamental rights. In such cases court are empowered to issue appropriate order,
directions and writs in the nature of Habeas Corpus, Mandamus, Certiorari, Quo-warranto
and prohibition. Judiciary is ultimate guardian of the human rights.[3]

Human rights are the basic right available to any human being by virtue of his birth in any
human race. It is inherent in all human beings irrespective of their nationality, religion, sex,
caste, colour or creed. The Protection of Human Rights Act, 1993 defines Human Rights as:
“human rights” means the rights relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the International Covenants and enforceable
by courts in India”. The Constitution of India guarantees basic human rights to each and
every citizen of the country. The framers of the Constitution have put their best efforts in
putting down the necessary provisions.

Over the last few years, there has been a gradual increase in the rate of wrongful convictions
in the country. Today, more innocent people are in prisons than ever before. The pre-eminent
jurist William Blackstone once said: “Better that ten guilty persons escape than that one
innocent suffers.” India borrows a substantial part of the UK’s legal system, but the ‘ethos’ of
Blackstone’s formulation seems to be violated.[4] This article focuses on the appalling
condition of Wrongfully Convicted Victims and the State’s responsiveness, thereby
indicating the dire need of a uniform compensation legislative framework in India. The Law
Commission, in its latest report, identifies key criteria for compensation and provides a
framework for computing it.

Article 14 (6) of the International Covenant on Civil and Political Rights makes it mandatory
for countries to have a statutory framework for providing compensation and rehabilitation to
those who have been wrongfully prosecuted by the State. This provision, adopted by many
countries across the world – but not yet by India that is otherwise a party to the treaty – stems
from a simple, natural principle: If the State, in its performance of sovereign functions, has
wrongfully taken away the life or liberty of an individual, it needs to remedy it.

II. The protection of human rights act, 1993

The need for the protection of human rights issues both at national and international level led
to the enactment of an act which specifically deals with the protection of human rights called
‘The Protection of Human Rights Act,1993’.

Malicious Prosecution

As per the commission, maliciousness means prosecution without reasonable or probable

cause. This includes levying a charge of negative intent on the investigative agency or certain
police officers – and has always constituted a central criterion for remedial action from the
State. Deliberate fabrication of charges, planting of evidence, conscious suppression of
evidence that speaks of the innocence of the accused, as well as the use of torture to coerce
statements, or to get an accused to turn approver despite knowing that the accused are
innocent all constitute malicious prosecution by the State.
As comparison between PSI reports of 2015 and 2019 it shows that during the year 2019, a
total of 18,86,092 inmates were admitted in various jails in the country.

A total of (4,78,600) prisons as 31st Dec,2019 were confined in various jails across the
country.

The number of undertrial prisoners has increased from 3,23,537 in 2018 to 3,30,487 in 2019
(as on 31st Dec to each year), having increased by 2.15% during this period.

The number of detenues has increased from 2,384 in 2018 to 3,223 in 2019, having increased
by 35.19% during this period.[5]

III. What is the need for proper compensation system and why?

The Law Commission of India in its 277th report, has now recommended that the right to
liberty be recognised by the Indian state in the form of a law. It has urged the Union
government to honour its commitments internationally and nationally (to its citizens) by
acknowledging its accountability to law. The commission has also recommended the
prosecution of erring government officers found to have maliciously prosecuted an innocent
citizen. Most importantly, it has provided a framework for computing compensation and
calculating the monetary value of the loss to a citizen in case of wrongful prosecution. At
present, going by the legal precedents around compensation in India, which are mainly
confined to cases of illegal detention, this process is not structured. While the report’s
recommendations are imbued with the right constitutional spirit, it is – in these times where
life and liberty can have such little value – truly radical in its scope.

Under the International Covenant on Civil and Political Rights (ICCPR), signatories are
required to take steps to ensure the right to compensation for wrongful imprisonment and
detention. While India had expressed reservations while ratifying the ICCPR that the Indian
legal system does not recognise the right to compensation for victims of unlawful arrest and
detention, the jurisprudence created by the Supreme Court of India has made this reservation
redundant.

IV. Victims right to compensation

“If I was asked to name any particular Article the most important in this constitution-an
Article without which this Constitution would be a nullity- I could not refer to any other
article except this one…it is the very soul of the Constitution and very heart of it.”[6]

-Dr. Ambedkar (Speaking in Constituent Assembly Debate on the importance of Article 32 of

the Constitution)
The declaration of fundamental rights is meaningless unless efficient state machinery backs it
for enforcement.[7] The maxim “ubi jus ibi remedium” which means “where there is a right
there is a remedy”

Therefore, it was in the interest of justice that our lawmakers introduced Article 32 and 226
of the Constitution, where ‘fundamental rights’ are provided for an appropriate solution for
their compliance.

The Judiciary in India plays the role of a guarantor and sentinel of the ‘Rule of Law
principle’, which in turn represents the importance of peace, security, and harmony between
citizens. The Supreme Court has often played an authoritative role and protected the
fundamental rights of its citizens, which have been violated due to the lack of awareness of
State by way of monetary compensation. It is therefore vital to review the role of the
Judiciary in cases where the fundamental rights of wrongfully convicted victims have been
violated.

It was in 1983 when the Supreme Court in Rudul Shah v. State of Bihar[8],for the first time,
faced a dilemma to whether or not award compensation to the wrongfully convicted victim
whose fundamental rights were violated.

The petitioner was unlawfully detained in prison for ‘14 years’ and filed a Habeas Corpus
petition before the Supreme Court underArt.32 of the Constitution demanding for
compensation along with other reliefs. The Court believed that Article 21, would be denuded
if the Court ordered for mere acquittal of the petitioner without any grant of compensation.

The Supreme Court awarded Rs. 30,000 as compensation to the petitioner and held that the
scope of Art.32 is sufficiently broad to include the ‘power to grant compensation’ for
infringements of fundamental rights only in cases where the infringement of rights is gross.

The grant of reimbursement by the Supreme Court, according to Art.32 and the High Court
under Art.226 of the Constitution, is collective reparation dependent on the strict liability of
breaches of constitutional rights.

The Court, while hearing a writ petition in the case of Ram Lakhan Singh v State of
UP[9],ordered a compensation amount of Rs.10 lakhs to the petitioner who fought a
prolonged legal battle for ten years and also spent 11 days in jail. In another case, a nine-
year-old child died due to police’s atrocities whose kin was awarded a compensation amount
of Rs. 75000.[28]

The Court in Ayodhya Dube & Ors. v. Ram Sumar Singh[10], held that the omission of a
proper procedure, the lack of disciplinary intervention, and the insufficient evaluation of
sufficient facts lead to perversity, which may lead to the severe obstruction of justice.

In another landmark case of Nambi Narayanan v. State of Kerala[11], the Supreme Court
awarded Rs. 50 lakhs as compensation to the ISRO scientist who was wrongfully accused of
espionage after a long legal battle of 24 years. The fact that restitution was granted 24 years
post the wrongful conviction significantly reminds us of the need to ‘rectify wrongdoings
promptly’.

The infamous Akshardham terror case[12], smears upon the judicial literature of wrongful
convictions. In this case, the Supreme Court reprimanded the authorities for conducting the
investigation of terror attacks in an injudicious manner and levying severe allegations against
innocent persons.

Astoundingly, the Court ‘refused’ to entertain the victims’ plea for compensation who
languished in jails for ‘more than a decade’ for no fault of their own. Senior Advocate K.T.S
Tulsi (then counsel for the petitioner) rightly asked the bench,[13] “The Apex Court gave
them back freedom but who can give them back the ten years they spent behind bars for no-
fault? The State must adequately compensate them as it violated the right to life brazenly.”

Astonishingly to our lamentation, the Court denied the appeal for compensation on the ‘basis’
that the acquittal of the victims by the Court would not automatically give them the right to
compensation and would set a ‘dangerous precedent’ if the appeal was allowed.

Following the footsteps of Supreme Court, Hyderabad Court in the year 2017 acquitted ten
accused persons in the Hyderabad 2005 suicide bombing case[14]. In this case, the accused
were charged for a conspiracy behind the suicide attack that took place in Police task force
office on Oct. 12, 2005, thereby killing two officials.

The Court accentuated that the police arrested the suspects without any concrete evidence and
has subsequently failed to prove conspiracy on the part of accused. The innocents lost ‘ten
years’ of their lives due to authorities’ negligence.

Neither was any compensation granted to the victims nor was any coercive action taken
against the investigators. It is not the first time when police committed such a faux pas. These
cases are often viewed as high profile cases.
The Judiciary has been retrospectively aware of the factors leading to ‘Miscarriage of
Justice’. Furthermore, their lack of action to frame a uniform legislative framework for
compensation indicates their ignorance towards the degraded status of these victims. The lack
of action on the part of Judiciary continues to undermine the country’s judicial system.

V. Uniform law regarding compensation for wrongful prosecution

The Law Commission of India (LCI) in its 277th report titled ‘Wrongful Prosecution
(Miscarriage of Justice): Legal Remedies’ headed by Hon’ble Justice Dr B.S Chauhan has
recommended certain amendments to the Criminal Procedure Code, 1973 (CrPC). While it is
beyond the reach of this article to objectively examine all the recommendations made by LCI
in the aforementioned report, it will briefly analyse the recommendations made concerning
the Compensation Legislative Framework only.

The Commission recommends setting up of ‘Special Courts’ in each district for delivery of
expedient and speedy justice to victims. These courts shall solely entertain the Compensation
Pleas filed by wrongfully accused victims and their family members. The jurisdiction of these
courts has been classified based on;

The place in which the wrongful prosecution took place;

District in which the victim resides.

The nature of proceedings to be followed by Special Courts shall be Summary Procedures as

prescribed under Order XXXVII of the Civil Procedure Code, 1908. The burden of proof
shall lie on the petitioner to prove misconduct on the part of the defendant which led to
Wrongful prosecution.

The most important part of the recommendation is the Compensation legislative framework
set out by LCI in its report. The LCI observed that it might not be feasible to set out a fixed
amount of compensation for these victims; they recommended the inclusion of ‘Guiding
Principles’ to be followed by Courts while deciding the quantum of compensation. The
guiding principles shall be included in the amendments prescribed by LCI. These principles
include the “seriousness of the offence, severity of punishment, length of detention, damage
to health, harm to reputation, and loss of opportunities.”

The LCI also prescribes grant of interim compensation by the State to the victims. The
compensation shall be of ‘Pecuniary’ and ‘Non-Pecuniary nature’; Pecuniary being the
amount of the compensation decided by Courts based on Guiding principles; the non-
pecuniary compensation shall mean measures taken by the State for the reintegration of the
victim into society, in particular employment opportunities, the removal of social stigma
associated with the crime that the victim has never committed.[15]

VI. International human rights and fundamental rights (part iii of coi)

India had signed the Universal Declaration on Human Rights January 01, 1942. Part III of the
Constitution India ‘also referred as magna carta’ contains the Fundamental rights. These are
the rights which are directly enforceable against the state in case of any violation. Article
13(2) prohibits state from making any law in violation of the Fundamental Rights. It always
provides that if a part of law made is against the Fundamental Rights, that part would be
declared as void. If the void part cannot be separated from the main act, the whole act may be
declared as void.

In the case of Keshvanand Bharti v. State of Kerela,[16] the apex court observed: “The
Universal Declaration of Human Rights may not be a legally binding instrument but it shows
how India understood the nature of human rights at the time the Constitution was adopted.”

VII. Remedies under law: various aspects

A review of the existing laws and the case law brings forward three categories of court-based
remedies with respect to miscarriage of justice resulting in wrongful prosecution,
incarceration or conviction etc.:

(i) Public Law Remedy;

(ii) Private Law Remedy; and

(iii) Criminal Law Remedy.[17]

The first two of the aforementioned remedies are victim-centric providing for pecuniary relief
from the State to persons who have suffered on account of wrongful prosecution, conviction
and/or incarceration. The third remedy, available under criminal law, is on the lines of
holding the wrongdoer accountable, i.e., proceeding with criminal action against the
concerned officers of the state for their misconduct.

Public Law Remedy

Public law remedy for miscarriage of justice on account of wrongful prosecution,
incarceration or conviction finds its roots in the Constitution of India. In such cases, it is the
violation of fundamental rights under Article 21 (the right to life and liberty), and Article 22
(protection against arbitrary arrests and illegal detention etc.) that invokes the writ
jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the
Constitution respectively; which includes the grant of compensation to the victim, who may
have unduly suffered detention or bodily harm at the hands of the employees of the State.

In Maneka Gandhi judgment[18], where the Supreme Court gave a dynamic interpretation to
Article 21, a new orientation to the concept of personal liberty. One of the important
offshoots of the foregoing were that the courts started to consider awarding compensation in
cases of undue detention and bodily harm.

In this respect, the case of Khatri & Ors. v. State of Bihar & Ors.,[19] (the Bhagalpur
Blinding case), was one of the earlier cases where the question was raised as to whether a
person who has been deprived of his life or personal liberty in violation of Article 21 can be
granted relief by the Court, and what could such relief be. In this case, it was alleged that the
police had blinded certain prisoners and that the State was liable to pay compensation to
them.

In Rudal Shah v. State of Bihar[20], where the Supreme Court, exercising its writ
jurisdiction, passed an order of compensation for the violation of Articles 21 and 22 of the
Constitution. In this case the petitioner was unlawfully detained in prison for 14 years after
the order of acquittal. The court observed thus: One of the telling ways in which the violation
of that right can reasonably be prevented and due compliance with the mandate of Article 21
secured, is to mulct its violators in the payment of monetary compensation. Administrative
sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any
other method open to the judiciary to adopt.

Private Law Remedy

The private law remedy for errant acts of State officials exists in the form of a civil suit
against the State for monetary damages. The Supreme Court has time and again emphasised
the above discussed Constitutional remedy of a claim based on strict liability of the State
being distinct from and in addition to the remedy available in private law for damages on
account of tortious acts of public servants – especially negligence by a public servant in the
course of employment.

For instance, in cases of malicious prosecution, such as in State of Bihar v. Rameshwar

Prasad Baidya & Anr.[21], where criminal proceedings were initiated against an accused for
the purpose of harassing him, the Court held the State liable to pay damages to the accused
person for his malicious prosecution by the State employees. At the same time, there is a
plethora of such civil suits where the function of maintaining law and order, since performed
only by the State or its delegates, has been held to be a sovereign function, rendering the
State to not be liable for consequences ensuing therefrom. The Law Commission also looked
into the scope of immunity of the government for the tortious acts of its employees in its 1st
Report on „Liability of State in Tort‟ (1956); and recommended that “the old distinction
between sovereign and non-sovereign functions should no longer be invoked to determine the
liability of the State.”

Criminal Law Remedy

In terms of the remedy for wrongful prosecution, incarceration on account of police and
prosecutorial misconducts, the applicable criminal law provisions focus on the other end of
the miscarriage of justice i.e. wrongdoers – the concerned public officials. These provisions,
as contained in the Indian Penal Code, 1860 (IPC) and the Criminal Procedure Code, 1973
(CrPC), lay down the substantive and procedural contours of the action(s) that can be taken
against the wrongdoers.

In the case of State v. Saqib Rehman & Ors.[22], the Sessions Court, Dwarka, New Delhi,
vide its order dated 2 February 2011, made a finding that the concerned police officials had
framed the persons accused in a false criminal case, fabricating evidence etc., and ordered
lodging of a complaint against the concerned officials under sections 166 and 167, IPC,
among others. In this case, the persons accused were already in illegal custody when the
police officials scripted an encounter basing it on a „fake secret informer‟ and showing an
arrest of a later date.

In Ranjit Singh v. State of Pepsu[23] in a matter concerning illegal detention of a person by

the police, the accused, a police officer when called upon to make a statement against an
application under Article 226 of the Constitution for a writ of habeas corpus, filed a false
affidavit denying that the man was ever arrested by the police or was in his custody. The
Court held that the accused had committed the offence of giving false evidence under section
191, IPC.

In the case of Aamir Khan[24], who was wrongfully incarcerated for 14 years as the main
accused in multiple terror cases, there appeared a uniform noting in all the cases against him
with regard to the lack of incriminating evidence connecting the accused with the explosions.
The Delhi High Court in one of the said cases Mohd. Aamir Khan v. State, noted the above
and setting aside the conviction, held that the prosecution has “failed to adduce any evidence
to connect the accused with charges framed much less prove them”.

With respect to the issue under consideration, reference needs to be made to Uttarakhand
Sangharsh Samiti v. State of U.P.[25], where the Court specifically held that acts of wrongful
restraint and detention, planting weapons to show fake recoveries, deliberate shooting of
unarmed agitators, tampering with or framing incorrect records, commission of rape and
molestation etc., are neither acts done, nor purported to be done in the discharge of official
duties; and that no sanction of the Government is required in ordering prosecution of such
police officials. The Court also granted exemplary damages to the victims of police atrocities.

VIII. What amounts to wrongful prosecution?

Wrongful prosecution, as noted above, are the cases of miscarriage of justice where
procedural misconducts – police or prosecutorial, malicious or negligent – resulted in
wrongful prosecution of an innocent person, who was ultimately acquitted, with a court
making an observation or recording a finding to that effect. The underlying sentiment being
that such person should not have been subjected to these proceedings in the first place.

The man lost ‘23 years’ of his life due to the combined negligence of Judiciary and the
authorities. The Court did not grant him any compensation. He was rendered impoverished,
and the broken financial condition prevented him from filing a plea for compensation.

In another case of Assam, Madhumala Das[26] was arrested and held in the detention centre
for three years for a crime she had never committed. Her deaf and dumb daughter wandered
through the village looking for her mother, and she soon went into trauma. The case turned
out to be one of ‘mistaken identity’ in the investigation. Madhumala lost three years of her
life due to her fateful resemblance to the killer. Police’s negligence also caused an irreparable
loss to her daughter.

Not only unlawful arrests and imprisonment contribute to the loss of years, but victims are
also subjected to even social isolation and ostracism after release. For years separated from
friends and families and the lost opportunity to skill oneself, the fearsome convictions will
not end with liberty.

With no income, lodging, conveyance, comfort, or advertising, and with a negative identity
record that, despite innocence, is rarely cleaned, the charge of being accused lingers even
after the pardon.

IX. Scholar’s opinion

According to the report of U.S. Department of Justice, wrongfully convicted victims face
long-term psychological, social, emotional and financial consequences over their lifetimes
following their release. The psychological and emotional effects include, inter alia, terror,
mistrust, anxiety, psychiatric illness, and sleepless nights.[27]
Victims also undergo financial difficulties when they have lost the opportunity to skill
themselves and end up unemployed in society. Furthermore, the financial crisis prevents them
from becoming involved in social activities. These victims never recover from the trauma of
being imprisoned for years while being innocent. No amount of compensation can restore the
lost years of victims’ life. According to the Innocence Project report, the majority of victims
often have Post-Traumatic Stress Disorder (PTSD).[28]

PTSD is a condition in which the person suffers consequences such as loss of interest in
enjoyable things, hyper-vigilance (a condition in which he remains alert all the time),
frightening thoughts, and negative feelings due to a life-changing event. The list of
consequences is non-exhaustive and varies from case to case. Sometimes it can take years for
PTSD to get away, and sometimes it does not.

The challenges faced by victims post their exoneration arise after they have convinced the
Court about their innocence, implying they have surpassed the arduous judicial process,
overcame expenses of affording a quality legal aid, taken care of family’s expenses while in
prison.

X. Conclusion

In our criminal justice system, the survivor of the false conviction suffers in two ways. First,
it is psychological and personal, since the person who has suffered incarceration is the one
who has served the jail time for the crime he never committed. Secondly, the perpetrator of a
false conviction is sentenced to lifelong societal hatred and condemnation due to the
incompetence of the criminal justice system.[29]

Therefore, it is right to stress that these victims are subject to double jeopardy. The principle
of Double jeopardy originates from the common law rule of “nemo debet vis vexari” which
means that ‘no man should be put in peril twice for the same offence.’[30]

These victims of the State’s culpability are put in peril twice for the offence they have never
committed. Article 20(2) of the Constitution of India provides that “no person shall be
prosecuted and punished for the same offence more than once”. Although these victims are
not prosecuted twice, their endurance towards societal hatred is none less than prosecution.
Furthermore, the unlawful detention of these innocent persons infringes their Right to
Freedom, enshrined as a ‘fundamental right’ in Part III of the Constitution.
Wrongfully accused victims are deprived of their basic fundamental rights. The appalling
state of the victims, following their conviction, manifests the state’s unwise approach to these
victims. After their release from prison, the victims depend on the state’s mercy.

Malicious 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. Such actions are known as malicious prosecution. Malicious
prosecution occurs when one party knowingly and with malicious intention initiate a baseless
litigation against the other party.

This can include both criminal charges and as well as civil claim, for which the cause of
action is essentially the same. Malicious Prosecution is described under Law of Torts and
also under Indian Penal code. It is an abuse to the Judicial System as it aims to provide justice
to innocent people but under Malicious Prosecution, innocent people are convicted. Under
this the defendant becomes plaintiff and plaintiff becomes defendant.

The case under malicious prosecution should be filed within a year of a malicious suit. For
the execution of malicious proceeding, it is necessary to be initiated by a criminal proceeding
against an innocent person without any reasonable cause. The person filing the case of
malicious prosecution must have suffered any damage or harm and he has to prove the same
in the court to initiate the proceeding.

According to a case Riegel Vs. Hygrade Seed Co.1942– Malicious Prosecution is for the
recovery of damages to person, property, or reputation, shown to have approximately resulted
from a previous civil or criminal proceeding, which was commenced or continued without
probable cause, but with malice, and which has terminated unsuccessfully.[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:

Origin/History

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 has its origin in
England and evolved in 18th and 19th century. It was an outcome of misusing the due
procedure of law since 18th and 19th century in England. Later it spread its wings across the
globe, in different countries.

This was more witnessed in common wealth countries since they had a great influence of the
English laws in their countries. Malicious prosecution has also caught a very strong footing in
the United States, probably because of holding the persons liberty and reputation in the
highest regard.

Elements of Malicious Prosecution

The following are the essential elements which the plaintiff needs to prove in a suit for
damages for malicious prosecution:

Prosecution by the defendant

Absence of probable/ reasonable cause

Defendant acted maliciously

Termination of the proceedings in the favor of the plaintiff.

Plaintiff suffered the damage as a result of the prosecution

Prosecution by the defendant

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.

Absence of probable and reasonable cause

In a suit for damages of malicious prosecution, the plaintiff is also required to prove that the
defendant prosecuted him without reasonable and probable cause. The question related to the
reasonable and probable cause suit for malicious prosecution should be decided on all facts
before the Court. The existence of probable and reasonable cause is of no use if the
prosecutor is prosecuted in ignorance of it. The dismissal of the prosecution or the acquittal
of the accused does not create any presumption in the absence of reasonable and probable
cause.

Defendant act Maliciously

In a suit of damages for malicious prosecution, it is another essential element which the
plaintiff has to prove that the defendant acted maliciously/wrongfully in prosecuting him and
not with a mere intention for carrying the law into effect. Malice need not be a feeling of
enmity, spite or ill will or spirit of vengeance but on the other hand it can be any improper
purpose which motivates the prosecutor, such as to gain a private collateral advantage.

In a suit of damages for malicious proceedings, it is essential to show that the prosecution
complained of terminated in favor of the plaintiff. Termination in favor of the plaintiff does
not mean that the judicial determination of his innocence; it means absence of judicial
determination of his guilt. Malice need not be a feeling of enmity, spite or ill will or spirit of
vengeance but it can have any improper purpose which can motivate the prosecutor, such as
to gain a private collateral advantage.

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. In a claim for prosecution, the plaintiff can claim the damages on the following
three counts

Damage to the plaintiff's reputation

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. A good reputation means that the man has garnered
good will in the society, and that is the greatest source of pleasure to him. Each and every
person works his whole life trying to maintain good will. A good will often relates to moral
values. The biggest pain in a person's life is a bad reputation. A bad reputation in society
negates the work of a person who is trying towards creating a good will. Moreover, a bad
reputation also brings along the ill will of the society, as well as social non acceptance and
this is in direct deprivation of the fundamental right of right to life.

Damage to the plaintiff's person

The amount of physical injury can also be involve through a maliciously instituted
proceeding. Criminal charges often include arrest as an important consequence of the
procedure once the law is set. The injury and the damages to the person may have an effect in
case of arrest due to malicious prosecution. Also the unnecessarily and unjustly the person
would have to sacrifice their personal liberty and freedom. Furthermore, this trauma is bound
to cause great mental stress to the aggrieved person. 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.
Damage to the plaintiff's property

An unjust and malicious prosecution means that the person who is accused of has to use his
resources and money in defending the prosecution. This unnecessary expenditure in large
amount is an injury to his property.

Position of Malicious Prosecution in India

There are provisions in India for dealing with malicious proceedings, criminal suits and a
claimant usually has no remedies. The English legal system has been very flexible enough as
per the changing times but the conservative approach and thinking of Indian lawmakers hasn't
really worked out for the public good as there are still no remedies for civil claims which
defame the person.

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. In the Indian context, the wrongful/Malicious prosecution should be
the most effective for identifying the cases of malicious prosecution as it directly targets
procedural and other prosecutor misconducts, which is one of the primary sources of factual
errors that results in innocent people being held guilty of offences they did not commit. At
present in our country there is no statutory or legal scheme for compensating those people
who are wrongfully incarcerated.

How can India deal with Malicious suits

The judges have the independence of evolving new laws and acts or filling voids in between
the existing laws. 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. 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.

One such example is the poorly drafted women laws. Many women till date have capriciously
filed suits to obtain benefits but the victims of such suits have got no remedy. The Indian
legal system has over the time failed to address the actual authentic cases and this can only be
changed if the judges while deciding a case leave their conservative thinking behind and laws
of which they have got absolute discretion.

The courts must stop revisiting the incongruous judgements and turn towards framing new
laws as per the changing time demands. 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. 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.

What amounts to Malicious Prosecution

The Malicious prosecution cases of wrongfully given justice where procedural

misconducts[3] involving police or prosecutorial, malicious or being negligence results in
wrongful prosecution of an innocent person. The underlying sentiments being that such
person should not have been subjected to these proceedings.

An illustrative list of procedural misconduct would include the following:

Making or framing some false or incorrect record and documents for submission in a judicial
proceeding

Making a false statement authorized by law to receive as evidence when legally bound to
state the truth

Fabricating the evidences for submission in a judicial proceeding or any other proceeding
taken by law

Destruction of the evidences to prevent its production in a judicial

Bringing a false charge, or instituted false criminal proceedings against a person

Committing a person to confinement or trial acting contrary to law

Remedies available for Malicious Prosecution

The existing laws and case laws bring forward the three kind of court based remedies which
are against malicious prosecution, incarnation.

They are:

Public law remedy: the compensation by writ court judgments

Private law remedy: the civil law remedies under the law of tort

Criminal law remedy: the administrative relief of punishing the responsible officials under
the criminal law `
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.

Public law remedy

The Malicious Prosecution infringes fundamental rights of the accused person and then the
accused can invoke writ jurisdiction under article 32[4]or 226[5] and then obtain from the
writ courts the relief of grant of compensation to the victim who suffered bodily, mental and
social harm. Public law remedy does not preclude the right of compensation that is available
under the civil law of tort.

Private law remedy

Under private law remedy, the person who is wrongfully prosecuted can file suit for
monetary damages against the state under the vicarious liability. The person who is
maliciously prosecuted can file both the cases simultaneously.

Criminal law remedy

The person suffered under Malicious prosecution can request the respective government to
take criminal law remedies action against the concerned public official in pursuance of the
provisions in Indian Penal Code and Cr PC. The supreme court states that illegal arrest cannot
be washed away by setting the person arrested free. The states in such cases should take
action against the officials who are responsible for such prosecution.

The tort of malicious prosecution is currently feasible by way of other mechanisms all around
the world. Various laws have enacted legislation to that effect and laid down guidelines for
the usage of the tort through case laws.

England

England has been the birthplace for the tort law and law of malicious prosecution. As early as
10th century, the English people understood the need to restrain malicious litigation initiated
with vested interests. Back in the 18th and 19th century the law of malicious prosecution
matured in England. 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.
United States of America

The United States of America has been quite liberal in its usage and codification of the law of
malicious prosecution. Historically, and even today it has not limited the scope of the tort to
criminal proceedings alone. Also, it has time and again codified the tort in legislation.

American Jurisprudence

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. The adverse decision of such a body may cause serious damage to the reputation or
livelihood of the person accused. This essentially express present day principles of elucidate
the claims regarding malicious prosecution. 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 litigation.

New Zealand

New Zealand has codified the means discharging successful of innocent defendant. The
possible remedies in New Zealand for all those people who are prosecuted for offences which
they have not committed are an award of costs the tort remedies of malicious prosecution.

Tortuous Remedies

In New Zealand, for a successful action of malicious prosecution, the plaintiff should prove
some points which are as follows;

defendant prosecuted the plaintiff

prosecution ended in the favor of plaintiff's

defendant lacked reasonable and probable cause of bringing the prosecution

defendant acted maliciously

plaintiff suffered damages as a result of the prosecution

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 legislation. Since the concept in itself has been originated in common law. On the other
hand, civil law countries have adopted the concept later in time.
Defences available to Malicious Prosecution claims

The tort of malicious prosecution, a very effective one if implemented in its right spirit, also
comes with its short comings. These short comings are in the form of numerous defenses that
can be availed of in a suit of malicious prosecution. There are various types of defences that
can be taken when one is charged with a claim of malicious prosecution:

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. Such a situation can
arise when the plaintiff, through a misleading conduct, creates malicious impression which
formed the basis for the reasonable suspicion and prosecution for the alleged crime.

Judicial authority/Judicial Immunity.

Statutory or lawful authority.

Preservation of the security of the state/country.

Statutory Bar, e.g.:

Statute of Limitations, which provides a limitation period for legal action. After the
expiration of the said period, the claim is invalid and cannot be permissible in court.

However, not all of these defences can be fool proof in their bare form. 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. Moreover, malice would play a vital role in such cases,
where in slightest evidence of malice brought before the court by the victim would be
sufficient to pull down these defences.

Conclusion and Suggestions

The concept of malicious prosecution is a torch bearer of the protection of a person

reputation. It is an ageless concept that reputation is the most important facet of any person's
life and it is however quite saddening that not enough legal protection has been granted to it.
The primary aim of this concept is to protect every person from mindless and vengeful
litigation, be it civil or criminal. It acknowledges not just the importance of a person's
reputation, but also the trauma every person has to suffer while dealing with any litigation
and the consequent loses.

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. There needs to be compensatory
assistance by the State to help the innocent victims of miscarriage. 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.

As things stand, there is no statutory or legal scheme articulating the State response to this
issue. Moreover, given the endemic and sensitive nature of the issue, and the glaring
inadequacies of the available remedies, there is a pressing need for an explicit law for
compensating the victims who have suffered miscarriage of justice at the hands of the State
machinery – laying down State statutory obligation to recompense these victims of wrongful
prosecution, and a dedicated judicial mechanism to give effect to the same.

Now some suggestions which would definitely make a difference in the scenario:

Special Courts

The designation of special courts in each district for adjudicating upon the claims of
compensation for wrongful prosecution. The choice jurisdiction should be made by the
applicant, as follows:

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.

Compensation

There needs to be compensatory assistance by the State to help the innocent victims of
miscarriage of justice, who have suffered through wrongful prosecution, to rehabilitate and to
adjust to the life-after, and to reintegrate into society. Non-pecuniary assistance shall also
include a specific provision for removing disqualifications attached to a prosecution or
conviction

Nature of Proceedings
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.