Malacious prosecution
PARTHA SARKAR
(Querist) 30 January 2012
This query is : Resolved
Under what condition criminal malacious prosecution are filed? Which sections of IPC are appropriate for such prosecution?
Whether after 482 quashing malacious prosecution possible?
I will be gratefull if anyone send me a sample petition.
Regards
Partha Sarkar
sarkar.partha@rediffmail.com
Advocate. Arunagiri
(Expert) 30 January 2012
What is your grievance, do you have any real case?
Based on the real case, we can give opinion.
Raj Kumar Makkad
(Expert) 30 January 2012
There is no sample complaint as desired, however, you may file a defamation case against the complainant of the earlier case but there are various ifs and buts in that process so it shall be better to post entire facts of the case so that appropriate reply may be given.
M/s. Y-not legal services
(Expert) 30 January 2012
yes mr.partha.. you can discuss your problem here.. we may try to solve it..
-tom-
DEFENSE ADVOCATE.-firmaction@g
(Expert) 30 January 2012
Quash does not give you any right you have been let out of trouble. Now keep quite and live life again and do not try to disturb the honeybee nest.
N.K.Assumi
(Expert) 30 January 2012
Malicious prosecution is a civil suit based on the principles of a right not to be harmed, the infringement of which is ordinarily actionable only when damages conforming the legal standard are shown to have followed. In order that an action for malicious persecution may succeed, the plaintiff must [proved the following elements.
1.Proceedings must have been instituted or continued by the defendant
2.The proceedings was terminated in favor of the plaintiff now suing.
3.The defendant acted without reasonable and probable cause
4.The defendant must have acted maliciously.
It can be filed in the court where the proceedings was initiated or prosecuted.The petition must be accompanied by the copy of FIR, charge sheet, deposition of witnesses, warrant or summon from the court etc.
ajay sethi
(Expert) 30 January 2012
agree with assumi . no ready made drafts . contact a local lawyer
Sudhir Kumar, Advocate
(Expert) 30 January 2012
Mr assumi gave you the parameters of civil remedy for criminal remedy you can see following provisions of IPC
Indian Penal Code (IPC)
Section 182. False information, with intent to cause public servant to use his lawful power to the injury of another person
1[182. False information, with intent to cause public servant to use his lawful power to the injury of another person.— Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person,
shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Illustrations
(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or miscon¬duct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section.]
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 6 months or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Non-com¬poundable.
---------------------------
1. Subs. by Act 3 of 1895, sec. 1, for the original section.
Shonee Kapoor
(Expert) 31 January 2012
It has to be decided from the facts of the case only.
Each case is unique.
You need to be acquitted first.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 31 January 2012
Shri Arun & Shri Ajay,
Mr. Partha Sarkar is Practicing Advocate at Calcutta HC, and Mr. Barman may guide him well
Dear Mr. Sarkar. These provisions are ok for bk, not useful for majority practice jobs.
prabhakar singh
(Expert) 31 January 2012
M/S N.K.Assumi and Sudhir Kumar have correctly spoken about civil and criminal remedies.
Malicious prosecution is a tort which enables a person the subject of groundless and unjustified court proceedings ("the prosecution proceedings"), to seek a civil claim for damages against their prosecutor.
In order for a plaintiff to succeed in an action for malicious prosecution, they must prove:
a].the prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff;
b].termination of the prosecution proceedings was in the plaintiff's favour;
no reasonable cause for the prosecution
evidence of malice on the prosecutor's part; and
c]the plaintiff suffered actual damage.
The onus is on the plaintiff to prove each of these 3 elements. These Elements are discussed in more detail below:...
Termination
The following are examples of prosecution proceedings terminated in the plaintiff's favour:
1.Acquittal of the plaintiff on the merits of the case;
2.Termination of the case where conviction is quashed for technical reasons such as a misdirection by the trial judge;
3.Discontinuance of the prosecution by the prosecutor before verdict.
Reasonable cause:
The plaintiff must prove that the prosecutor started the prosecution without reasonable cause.
Reasonable cause is established when the following conditions exist:
a].The prosecutor must believe that the accused is probably guilty of the offence.
This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise.
2].The information, whether it consists of things observed by the prosecutor himself or things told to him by others, must be believed by him to be true.
3].This belief must be based upon reasonable grounds.
4].The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a person of ordinary prudence and caution in believing that the accused is probably guilty.
5.]A close examination of the facts of each case and the elements of the offence for which the plaintiff was charged is necessary in considering whether an action for malicious prosecution is warranted.
It is reasonable for the prosecutor to bring the charge if the question of whether the plaintiff was sufficiently involved in the offence is a matter to be left to a judge. Also, if the plaintiff's involvement is a question of fact to be left to the judge, then the prosecutor's decision to continue the prosecution gives no grounds for the action.Hence acquittal based on benefit of doubt may not afford a cause of action.
It is necessary for the plaintiff to prove that the prosecutor did not hold the belief, or did not hold the belief on reasonable grounds. The evidence necessary to challenge the belief is not supplied by proof that the prosecutor was aware of facts which might or might not have satisfied the prosecutor of the plaintiff's guilt, or that the defendant had information, some of which pointed to guilt and some to innocence.
To escape liability, the prosecutor need only be found to have had an honest belief in the fact that there was a sufficient case to launch a prosecution against the plaintiff, not a belief that a conviction would be secured.
Malice
Malice is a wrongful or improper purpose in bringing the prosecution. It can be notions of spite, ill-will and improper motive. It can be established if you can show the prosecutor has an improper, collateral purpose in bringing the prosecution.
Examples of malice are where prosecution was brought:
a].in order to silence the plaintiff in other legal proceedings,
b].to punish the plaintiff for given evidence against the police in other proceedings,
c].to prevent the holding of a shareholders meeting.
Malicious prosecution can be similar to abuse of process. But there is no need to prove malice in the case of abuse of process.
Damage
The plaintiff must prove actual damage. This can be under one of the three heads
a].Damage to reputation
b].Damage to plaintiff's person or property
c]Damage to plaintiff's pecuniary interest
As regards reputation, the fact that it could have defamatory overtones, that is, capable of being understood in a defamatory sense, is not enough. It may be sufficient damage if the prosecution caused the plaintiff's imprisonment. Pecuniary loss to the plaintiff may include legal costs incurred in defending the charge in the prosecution proceedings.
Being charged and therefore exposed to the risk of loss of liberty has been held to constitute sufficient damage
These are more than sufficient points on the topic and any one knowing his facts and this law can draft a plaint with out any defect in his pleading.
To utilize criminal side remedy nothing but the incidence has to be reported as usual for which format should not be the necessity.
But our slow judicial delivery system is a great deterrent to filing of these causes.
Dr V. Nageswara Rao
(Expert) 01 February 2012
1. Your question is : Under what condition criminal malacious prosecution are filed?
2. It is well known that there is a tort of malicious prosecution.
3.If your question is whether malicious prosecution can also amount to an offence under IPC, the answer is yes.
4. S. 211 of IPC comes closest and provides that: Section 211. False charge of offence made with intent to injure-
whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
and if such criminal proceeding be instituted on a false charge of an offence punishable with death imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
