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INTRODUCTION
1. The principle of malicious prosecution serves as a crucial safeguard against the misuse of legal procedures.
It offers redress to individuals subjected to unfounded legal actions initiated with malice and devoid of probable cause. This tort seeks to strike a compromise between two conflicting principles: the freedom individuals should have in holding criminals accountable and the necessity of preventing the initiation or continuation of false allegations against innocent individuals. In the case of West Bengal State Electricity Board v. Dilip Kumar Ray [1], the Supreme Court defined ‘malicious prosecution’ as “a judicial proceeding instituted by one person against another, for wrongful or improper motive, and without probable cause to sustain it.”
2. In India, several instances of fraudulent litigation stemming from marital disputes and civil issues to white-collar crimes have been reported on various occasions. Additionally, instances of unlawful arrests by law enforcement agencies are also a part of the said scenario. Therefore, the need for a comprehensive legal framework to address malicious prosecution in India is the need of the hour. Although malicious prosecution as a tort and a criminal offence finds mention in the Indian legal framework, a comprehensive legislation to prosecute against those erring complainants and the State who investigate and pursue the malicious proceedings, does not explicitly exist as of date. In several instances, State officials and private complainants frequently get away with making false claims, which situation is worsened by the slow and ineffective process of prosecuting these offenses over trial, and the hesitancy of the overburdened trial courts to take quick and decisive action.
3. Pertinently, ‘malicious prosecution’ neither finds any mention in the new Criminal procedure law, i.e., Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), nor was defined in the erstwhile Code of Criminal Procedure, 1973 (Cr.P.C.). However, Section 248 of the Bharatiya Nyaya Sanhita, 2024 (BNS) and Section 211 of the erstwhile Indian Penal Code, 1860 (IPC) prescribe punishment for the offence of falsely charging someone of an offence, with the intent to injure the said person. The said section enables a person to proceed against an individual who has falsely initiated a criminal proceeding against them, however, the said section does not enable a person to proceed against the State or public officials in such situations. Thereby, creating a vacuum in the legislative framework for malicious prosecution. Despite the recognition by the Hon’ble Supreme Court and various High Courts that malicious prosecution is an infringement on an individual’s right to life and liberty, there has been little legislative action taken to address this issue.
4. It merits mention here that, a criminal proceeding can only be taken to its fruition by law enforcement agencies. Once a complaint is lodged with a law enforcement agency, it is up to them to decide whether or not the said complaint has any merits. However, we see several instances where the law enforcement agencies investigate complaints that have no basis, for reasons best known to them. Further, in the name of investigation, accused named in the malicious proceedings is harassed, suffers mental agony, reputational harm, unlawful incarceration, etc. Similarly, there are also instances where certain law enforcement agencies, due to ‘extraneous considerations’ suo moto initiate investigations against individuals, without a shred of evidence to corroborate such an offence and support the investigation. Hence, the liability of law enforcement agencies in malicious prosecution cannot and should not be overlooked.
ELEMENTS FOR ESTABLISHING MALICIOUS PROSECUTION
5. As such, when pursuing a claim for malicious prosecution, the plaintiff or a person aggrieved of the malicious prosecution must establish certain essential elements. Firstly, he must prove that the defendant/complainant had initiated legal proceedings against him by following due process under law, as merely presenting a complaint or dispute with the competent authorities does not constitute prosecution, which also excludes proceedings like departmental investigations or inquiries by a disciplinary body[2]. Secondly, it must be shown that the defendant pursued such legal proceedings without a reasonable, probable, or rational basis/cause. The evaluation of the absence of reasonable or probable cause should be grounded on all the information presented to the court. It should be noted that the withdrawal of a prosecution or the acquittal of the accused does not automatically imply a lack of reasonable and probable cause, the same must still be proven by the Plaintiff. This principle was reaffirmed by the Madras High Court M. Abubaker v. Abdul Kareem[3].It is also to be noted that even if some accusations are backed by probable cause while others are not, the defendant can still be held accountable for malicious prosecution. The responsibility of proving this element rests on the aggrieved party/plaintiff.[4] Thirdly, the plaintiff needs to establish that the defendant had malicious intentions when pursuing such legal proceedings. In the case of Bank of India v. Lekshmi Das[5], the Apex Court emphasized the importance of establishing malice in situations where there is no clear and logical purpose. Malice can be inferred from the absence of sincere conviction in the accusation. A cause of action for malicious prosecution may also arise if the prosecutor, initially innocent, later acts with malicious intent. Fourthly, the proceedings must have terminated in favour of the plaintiff. It is to be noted here that no action for malicious prosecution can be initiated while legal proceedings are ongoing. The termination of proceedings against the Plaintiff does not necessarily mean that the Court must come to a finding that the Plaintiff is innocent, rather it can be that the Court has not come to a finding that the Plaintiff is guilty. Finally, the Plaintiff must prove that the Plaintiff who was accused or related to the malicious prosecution had suffered injury, damage, or harm because of such prosecution.
THE SAGA OF MISGUIDED PROSECUTION
6. Despite its intended purpose, this legal principle carries significant drawbacks such as its lack of power to proceed against the most distressing forms of legal harassment, which is the wrongful implication of innocent individuals in false cases by law enforcement agencies.
7. Recently, the Delhi High Court in the case of Ashish Bhalla v. Vishvendra Singh[6] while allowing an application for rejection of the Plaint instituted for seeking damages for malicious prosecution held that “For the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any oral obloquy is attached.”
8. Lord Wilson in Crawford Adjusters v. Sagicor General Insurance (Cayman) Ltd.[7] interpreted ‘Malice’ to state that “the malice is the foundation of all actions of this nature, which incites men to make use of law for other purpose than those for which it is ordained.”
9. The Police often justify this by claiming they are obligated to register and investigate any complaint they receive, suggesting they must scrutinize every detail reported to them. However, the law disagrees with the same as observed in various precedents. The Supreme Court, in the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors.[8], clarified that police discretion is not unlimited and that they cannot investigate an FIR if it does not disclose a cognizable offence. Similarly, in the case of Lalita Kumari v. Govt. of U.P. & Ors.[9], the Apex Court ruled that while the police must register an FIR for cognizable offences, they are not required to investigate every such FIR if there are insufficient grounds. In the case of Joginder Kumar v. State of UP[10], it was established that arrests should not be routine and should be subjected to proper investigation.
10. An infamous instance of wrongful prosecution against law enforcement is the investigation into the plot that resulted in the unjust persecution of former ISRO scientist Mr. Nambi Narayanan during the 1994 spy scandal. The Supreme Court in the case of S. Nambi Narayanan v. Siby Mathews & Ors.[11] had assigned Justice D. K. Jain to investigate the circumstances surrounding the false accusations against Mr. Nambi Narayanan by the Kerala Police, which labelled him as a “spy and traitor.” The CBI had previously determined that the Kerala Police wrongly accused the scientist, who held a prominent position in ISRO during that period. The Supreme Court affirmed these findings and instructed the Jain committee to identify and hold the law enforcers responsible for fabricating the charges accountable, thereby highlighting the negative consequences of sensational journalism and political infighting, resulting in damaged reputations and ruined careers for multiple individuals.
11. In this context, it is relevant to note the critical observations of the Additional District and Sessions Judge, Bareilly, Uttar Pradesh in State v. Abhishek Gupta[12]. In the order dated 30.07.2024, the Ld. Judge while acquitting the accused on charges of unlawful conversion had expressed his anguish regarding the frivolity and vexatious basis of the charge sheet filed in the said case. Interestingly, the court directed the senior superintendent of police of the district to take “appropriate legal action” against the then station house officer, two case investigating officers, and the circle officer (deputy superintendent of police) for lodging the FIR against the two men “under some pressure,” on the basis of a “baseless, unfounded, fabricated, and fantastical” story, while also giving liberty to the accused to proceed against the said investigating officer under a suit for malicious prosecution.
12. The said case clearly vouches for the concerns of the authors, that malicious prosecution has a tangible effect on the life of the “victim,” notably since the accused had to suffer the stigma of ‘being a criminal’ from the time of registration of the FIR, which was in May, 2022. However, the observations of the Ld. Judge clearly reflects the need for filling the vacuum in the Indian legal system with regard to the rights of a person who has been maliciously prosecuted, to proceed against law enforcement agencies initiating such vexatious and malafide criminal proceedings which is contrary to the principles of free and fair investigation enshrined in the Constitution of India.
INTERNATIONAL JURISPRUDENCE
A. The United States of America
13. In the United States of America (US), claims against malicious prosecution popularly known as ‘§ 1983 claims’, fall under Title 42, Section 1983 of the United States Code. The said section recognizes the right of a citizen to bring an action against state ‘actors’ who under any colour of law have violated their federal, statutory, or constitutional rights. The precedents and jurisprudence in the US have developed pursuant to the said section. In 1994, the Supreme Court of the US in the case of Albright v. Oliver[13] laid down the landmark principle that the Fourth Amendment, which barred unlawful search and seizure also had relevance to the deprivations of liberty that go hand in hand with criminal prosecutions. Following the dictum in the above case, the said principle of law has developed differently in various circuit courts. However, the elements to establish the malicious prosecution are more or less the same. In this pretext, it is important to observe that as per § 1983, a citizen can bring action to any state actor including the police for an instance of malicious prosecution; however, in India, such action is not legally sustainable.
B. The United Kingdom
14. In the United Kingdom (UK), malicious prosecution is recognized as a Tort, and no separate legislation for the same has been enacted. The elements to establish malicious prosecution are similar to those of India. Section 88 of the UK Police Act, 1996 provides for liability of the police officer in respect of any unlawful conduct of constables under his direction and control in the performance of their functions.
15. The UK Supreme Court in the case of Willers v. Joyce[14], has enlarged the scope of the tort malicious prosecution to also apply to even the instances where malafide civil proceedings have been initiated against an individual. The said precedent lays down a deterrent for persons who initiate claims against individuals with malafide intent and without any reasonable cause.
C. Germany
16. In Germany, Grundgesetz (GG)-The Constitution of Germany, 1949, The German Criminal Code, Bürgerliches Gesetzbuch (BGB)-The German Civil Code[15] and laws such as the Law on Compensation for Criminal Prosecution Proceedings, 1971 and Law on Compensation for Law Enforcement Measures, lay down the consequences of unlawful and culpable administrative acts and justifies a claim for damages. The official liability includes the personal liability of the person acting for the State whose liability is later transferred to the State.[16]
17. It can be observed from the laws of the USA, UK, and Germany, as to how foreign jurisprudence is developed and evolved for providing for malicious prosecution. However, India still sits on the sidelines when it comes to protecting the rights of individuals against wrongful or malicious prosecution.
CONCLUSION
18. It is high time that the legislature debates on stricter actions that can be taken against individuals in circumstances of malicious prosecution, and it is pivotal that comprehensive legislation be enacted for the action of malicious prosecution that recognizes the role of the law enforcement agencies in such instances. It is crucial to have clear laws in place that specifically address the issue of compensating individuals who have been wrongfully prosecuted. These laws should establish a legal obligation for the state to provide restitution to these victims. In a criminal case, acquittal by a trial court or by the appellate court recording a finding that the accused had been wrongly implicated in a case must take away the stigma because the charges themselves stand washed off, i.e. in cases of honourable acquittal; An appropriate legislation would establish a specialized judicial system to handle cases involving wrongful prosecution. According to the authors, such an approach would discourage the abuse of legal procedures and safeguard individual rights from unjust actions by the state.
19. In Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi[17], the High Court of Delhi while observing that the possibility of invoking civil remedies can by no stretch of the imagination be considered efficacious, affordable or timely… issued a directive to the Law Commission of India to undertake comprehensive examination of the issue of wrongful prosecution and incarceration of innocent persons; expressing concern over the many instances wherein innocent persons were subjected to prosecution for crimes they did not commit. Basis the same, the Law Commission of India through its then Chairman, Dr. Justice B. S. Chauhan, Former Judge, Supreme Court of India, submitted its report named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”[18]. The said report pointed out the inadequacies in the existing laws in redressal of wrongful prosecution. Apart from recommending the amendment of the then prevailing Cr.P.C. by way of insertion of definitions of ‘malicious’ and ‘wrongful’ prosecution, enactment of specific laws for redressal of wrongful prosecution, along with instances where compensation can be granted to victims, the designation of special courts to adjudicate on the said compensations, timelines for deciding such claims etc. was also suggested. The Law Commission further drafted a draft bill, namely the Cr.P.C. (Amendment) Bill, 2018 containing the aforesaid recommendations. However, neither the said bill has seen the light of the day as of yet nor the said suggestions see any mention in BNSS.
20. Unfortunately, the way to justice is so tedious and expensive that, in practice, escaping the malicious manipulations of individuals or law enforcement is quite difficult. Even though an offence of falsely charging someone of an offence is recognized under Indian law, it still does not address the issues faced by individuals when they are wrongfully or maliciously prosecuted against. The victims are destined to endure the most horrible of situations for varied lengths of time including illegal arrest and torture (both physical and psychological), incarceration, and, of course, an agonizing trial.
Authors: Gaurav Nair (Managing Partner), Ishwar Ahuja (Principal Associate) & Bhairavi SN (Senior Associate)
Footnotes
[1] AIR 2007 SC 976
[2] Khagendra Nath v. Jacob Chandra 1976 Assam L.R. 379
[3] S.A. (MD) No. 122/2013 decided on 21.04.2021
[4] Antarajami Sharma v. Padma Bewa AIR 2007 Ori 107
[5] AIR 2000 SC 1172
[6] CS(OS) 65/2020, order dated 28.08.2024
[7] (2014) AC 366
[8] 1982 AIR 949
[9] AIR 2012 SC 1515
[10] 1994 AIR 1349
[11] AIR 2018 SC 5112
[12] ST No. 813 of 2023
[13] 510 U.S. 266, 267 (1994)
[14] [2016] UKSC 43
[15] § 839 of BGB
[16] Article 34 of GG
[17] 247 (2018) DLT 31
[18] Report No. 277 dated 30.08.2018