SUBJECT:-D.P.C PROJECT TITLE
SUIT FOR MALICIOUS PROSECUTION
SUBMITTED BY AJITABH ROLL NO -906, 4th YEAR (BA LLB)
SUBMITTED TO Dr. B.R.N SHARMA FACULTY OF D.P.C
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
Writing a project is one of the most significant academic challenges I have ever faced. Though this project has been presented by me but there are many people who remained in veil, who gave their all support and helped me to complete this project. First of all I am grateful to my subject teacher Mr. BRN Sarma without the kind support of whom and help the completion of the project was a herculean task for me. He donated his valuable time from his busy time to help me to complete this project and suggested me from where and how to collect data. I am very thankful to the librarian who provided me several books on this topic which proved beneficial in completing this project. I acknowledge my friends who gave their valuable and meticulous advice which was very useful and could not be ignored in writing the project. AJITABH Roll No. – No. – 906 906
RESEARCH METHODOLOGY The researcher will use Doctrinal Method. The researcher will refer various books, articl es various law journals regarding the project work.
Aims and Objectives: This research paper looks at the dimensions of suit for malicious prosecution.
Scope and Limitations: Due to space constraints, the paper is limited to a brief discussion of the points.
Research Questions: What is the meaning of malicious prosecution? What is the format of drafting of suit for malicious prosecution?
HYPOTHESIS The researcher hypotheses that there are certain elements that the plaintiff is required to satisfy in the suit of malicious prosecution.
Sources of Data: Secondary sources of data have been used while researching for the paper.
Style of Citation: A uniform style of citation has been followed throughout the paper.
CHAPTERISATION
1. INTRODUCTION 2. MEANING OF MALICIOUS PROSECUTION 3. ELEMENT OF MALICIOUS PROSECUTION 4. DRAFT FOR THE SUIT OF MALICIOUS PROSECUTION 5. CONCLUSION BIBLIOGRAPHY
INTRODUCTION Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. 1 The foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for a proper cause the tort of malicious position provides redress for those who are prosecuted without cause and with malice. In order to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff’s favour . Liability of Malicious Prosecution has always had to steer a path between two competing principles- one, freedom of action that everyone should have to set the law in motion and to bring criminals to justice and two, the necessity to check false accusation against innocent people. Malicious prosecution is a common law intentional tort, while like the tort of abuse of
process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favour of the victim of the malicious prosecution. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings. Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute an abuse of process. The parties who have abused or misused the process have gone beyond merely filing a lawsuit. The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process. The
1
Lossing v. Superior Court (1989) 207 Cal. App. 3d 635, 638-640[255 Cal. Rptr. 18]
mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.
Origin
The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance supplanted it. The gap was filled by an action on the case which appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts2. Definition
Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known as “abuse of process”, that is, abuse of process of law for personal interest. In Saville v. Roberts 3, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might ground the action. Malicious prosecution might damagea. A person’s fame (i.e. his character) b. Safety of his person c. Security of his property by reason of his expense in repell ing and unjust charge In an action of malicious prosecution the plaintiff must prove:
1)That he was prosecuted by the defendant. 2) That the proceeding complained was terminated in favour of the present plaintiff 3) That the prosecution was instituted against without any just or reasonable cause. 4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact. 5) That he suffered damage to his reputation or to the safety of person, or to security of his property.
2 3
(1738) 90 ER 981 (A) Ibid 2
When does Prosecution commence?
The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint. In Khagendra Nath v. Jacob Chandra 4 there was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something shoud be done. The plaintiff was neither arrested nor prosecuted. It was held that merely bringing the matter before the executive athourity did not amount to prosecution and therefore the action for malicious prosecution could not be maintained. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing both the parties.
4
AIR 1977 NOC 207 (Gau)
ELEMENTS OF MALICIOUS PROSECUTION 1. Institution or continuation of Legal proceedings
There must have been a prosecution initiated by the defendant. The word ‘prosecution’ means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion and the law is set in motion only by an appeal to some person clothed. The person to be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the question whether there is prosecution of a person before process is issued calling upon him to defend himself. One view was that a prosecution began only when process was issued and there could be no action when a magistr ate dismissed a complaint under section 203 of the code of criminal procedure. The other view was that a prosecution commenced as soon as a charge was made before the court and before process was issued to the accused.
The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar Bannerjee5.The defendant had filed a complaint before the magistrate charging the
plaintiff with cheating. The magistrate thereupon examined the complainant an oath and made an inquiry under s 202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the complaint under section 203 of the code. In these circumstances the Privy Council held that there was a prosecution. The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming that damage was a necessar y consequence. It will be for the plaintiff to prove that damage actually resulted. In the Gaya Prasad v Bhagat Singh 6 the privy council pointed out that the conduct of the complainant before and after the complaint has to be seen to decide whether he was the real prosecutor or not. If the complainant knowing that the charge is false tries to mislead the police by procuring false evidence for the conviction of the accused, he would be considered to be the prosecutor.
5 6
(1947) 49 BOMLR 584 [1908] 30 All. 525
2. Termination of the prosecution in the plaintiff’s favo ur
The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-prosecution. If however his is convicted he has no right to sue and will not be allowed to show that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.
3. Absence of reasonable and probable cause
‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed. As laid down in Hicks v. Faulkner 7 there must be: an honest belief of the accuser in the guilt of the accused and such belief must be based on an honest convictionof the existence of circumstances which led the accuser and such secondly mentioned belief as to the existence of the circumstances must be based upon reasonable grounds that is such grounds , as would lead any fairl y cautious man in the defendant’s situation to believe so. The circumstances so believed and relied on by the accuser must be such as amount to a reasonable ground for belief in the guilt of the accused. It is the responsibility of the plaintiff to show that there was no reasonable and probable cause for the prosecution of the case. If the defendant can be shown to have initiated the prosecution without the himself holding an honest belief in the truth of the charge, it cannot be said that he acted upon reasonable and probable cause. The fact that the plaintiff has been acquitted is not prima facie evidence that the charge was unreasonable and false. Lack of reasonable and probable cause is to be understood objectively, it does not connote the subjective att itude of the accuser. The fact that the accuser himself thinks that it is reasonable to prosecute does not per se lead to the
7
[1878] 8 QBD 167
conclusion.
4. Malice
Malice for the purposes of malicious prosecution means having any other motive apart from that of bringing an offender to justice. Spite and ill-will are sufficient but not necessary conditions of malice. Malice means the presence of some other and improper motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose. Anger and revenge may be proper motives if channeled into the criminal justice system. The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice. In Allen v. Flood a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of their lordships in the House of Lords suggested that malicious prosecution was not really an exeption to this rule. The setteled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of malice i.e the Burden of Proof lies upon the plaintiff. Evidence of Malice
Malice may be proved by previously staines relations, unreasonable or improper conduct like advertising of the charge or getting up false evidence. Though mere carelessness is not per se proof of malice unreasonable conduct like haste, recklessness or failure to prove enquiries would be some evidence. When there is absence of some reasonable cause qwing to defendant’s want of belief in the truth of his charge is the conclusive evidence of malice. However the converse proposition is not true because a person may be inspired by malice and also has a reasonable belief in the truth of his case. There may be malice either in commencing a prosecution or continuing one, honestly began. The mere fact that criminal prosecution resulted in acquittal or discharge of the accused will not establish that the defendant had acted with malice.
5.Damages
It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. The damages may not necessarily be pecuniary. Acc to
HOLT C.J. ‘ s classic analysis in Savile v. Robert 8there could be three sort of damages any one of which could be sufficient to support any action of malicious prosecution. 1) The damage to a man’s fame as where the matter whereof he is accused is scaldalous 2) The damage done to a person as where man is put to a danger of losing his life , limb or liberty 3) The damage to a man’s property as where is forced to expend money in neces sary charges to acquit himself of the crime of which he is accused. The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessi ng damage the court to some extent would have to consider 9: 1) The nature of the offence the plaintiff was charged of 2) the inconvenience to which the plaintiff was char ged to 3) monetary loss 4) The status and prosecution of the person prosecuted.
8 9
[1795] EngR 3039, (1795) 3 Salk 16, (1795) 91 ER 664 (B http://law.jrank.org/pages/8407/Malicious-Prosecution.html, retrieved on 23rd april 2017
MODEL DRAFT NO. 1 In the Court of the Munsif of CIVIL COURT, PATNA Suit No. of … SANJEEV KUMAR …………………………………………………PLAINTIFF R/O KANKARBAGH, ROAD NO.5 HOUSE NO.243, PATNA - 800001 RADHE SHAYAM…………………………………………………… Defendant R/O BORING ROAD, NAGESHWAR COLONY ROAD NO.2, PATNA -800003 The plaintiff above-named begs to state as follows: — 1. That on the 13th of May, 2016, the defendant filed a complaint before the Magistrate of PATNA charging the plaintiff with having burgled the defendant’s house. 2. That a warrant was, in consequence of the complaint, issued for the arrest of the plaintiff, who was arrested and kept in the lock-up for a per iod or fifteen days. 3. That after a protracted trial on the said charge the plaintiff was acquitted on the 28 th of May,2016, on the finding that the complaint was false. 4. That the defendant had made the complaint against the plaintiff maliciously and without a reasonable or probable cause. 5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental pain, has been lowered in the estimation of his friends, was prevented from attending to his business and incurred expenses in defending himself from the said charge. Particulars of special damage:
Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 3000
Fee paid to his clerk Rs. 300 Expenses incurred in summoning three defence witnesses on two dates Rs . 500 Loss of business as a shop-keeper dealing in clothes Rs. 20000 Total Rs. 23800 6. That the cause of action for the suit arose on the 5th of May, 2016, viz., the date of acquittal. 7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction of the court. 8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 24800. Relief:
The plaintiff claims: 1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation. 2. Rs. 23800 as special damage. 3. Interest pendent lite and future. Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal knowledge and the contents of paragraphs 6 to 8 are believed by me on information received to be correct. SANJEEV KUMAR (PLAINTIFF) MAHESH VERMA Pleader.
MODEEL DRAFT NO.2
In the Court of the Magistrate of CIVIL COURT PATNA Suit No. of … SIDDHARTH CHAUHAN…………………………………………………PLAINTIFF R/O MITHAPUR, ROAD NO.5 HOUSE NO.24, PATNA - 800001 RADHE SHAYAM…………………………………………………………. Defendant R/O FRAZER ROAD, AG COLONY ROAD NO.2, PATNA -800003 The plaintiff above named begs to state as follows: — 1. That the defendant’s father, namely chandrabhushan singh was killed by some misceants on 13th of May, 2016. The defendant made a report to the police station at shastri nagar police station.(being FIR 546 Of 2016) wherein the defendant out of malice and without any reasonable and probable cause included the plaintiff;s name as of the assailiants. 2. That the plaintiff was arrested on a charge under sec 302, IPC for the alleged murder of defendents father on 16 th may 2016 And remain in custody till 30 th may 2016 when he was acquitted by sessions judge suresh jha in sessions trial no 3546.of 2017 having been committed for trial by the committing magistrate by his order. A copy of the order of the committing magistrate dated 16th may 2016 as well as copy of the order of the sessions judge dated 30 th may 2016 are appended herewith. The prosecution of the plaintiffs accordingly terminated on 30th may 2016 3. That the defendant is guilty of malicious prosecution of the plaintiff and is bound to compensate the plaintiff for the injury caused I.
To the reputation of the plaintiff;
II. III.
In respect of the incarceration in police and judicial lockups for a period of 15 days; In respect of pecuniary loss incurred in defending the prosecution. A schedule incorporating the sums due to the plaintiff from the defendant on the above mention counts is appended herewith which forms the part of the plaint. The plaintiff made a demand for the above sum of rupees 71500.from the defendant but the defendant has not pay the same.
4. That the cause of action for the suit arose on the 30th of May, 2016, on the date of acquittal. 5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental pain, has been lowered in the estimation of his friends, was prevented from attending to his business and incurred expenses in defending himself from the said charge Particulars of special damage:
Fee paid to Sri ramakant jha, Pleader for defenc e Rs. 10000 Fee paid to his clerk Rs. 1000 Expenses incurred in summoning witnesses on two dates Rs. 500 Loss of business as a shop-keeper dealing in motorbikes Rs. 50000 Total Rs. 61500
7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction of the court. 8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 71500. Relief:
The plaintiff claims:
1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation. 2. Rs. 61500 as special damage. 3. Interest pendent lite and future. Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal knowledge and the contents of paragraphs 6 to 8 are believed by me on information received to be correct. Siddharth chauhan (PLAINTIFF) SURESH VERMA Pleader.
MODEL DRAFT NO. 3 IN THE HIGH COURT OF JUDICATURE AT PATNA Suit No. of … SUBODH KUMAR …………………………………………………APPELLENT R/O AGAMKUA, CITY COLONY ROAD NO.5 HOUSE NO.43, PATNA - 800001 RADHE MOHAN…………………………………………………… RESPONDANT R/O BORING ROAD, NEAR CHILDREN PARK ROAD NO.2, PATNA -800003 The plaintiff above-named begs to state as follows: — 1. That this first appeal is directed against the judgment and decree dated 30-10-2016 of the District Judge,Patna 2. The facts leading to this appeal, briefly stated are that plaintiff appellant instituted a suit for damages for malicious prosecution launched in a criminal case arising out of FIR No. 466/16 lodged by defendant at Police Station Kotwali (Bharatpur) on 22-9-16 for offence punishable under Section 435,1. P. C. The case of the plaintiff as per the plaint is that aforesaid FIR was totally false because the defendant had pressurised upon the police by adducing false evidence which resulted in filing of challan against the plaintiff for offence under Section 435, I. P. C. and for which he had to apply for anticipatory bail twice before the trial Court and once before the High Court and whereupon he had incurred expenses for advocates fees, and the launching of such false prosecution by the defendant culminated into acquittal in his favour by Judgment dated 26-1-17 in Sessions Case No. 26/87. The plaintiff therefore pleaded that his acquittal is the outcome of malicious prosecution which was launched by the defendant in order to wreck vengeance which caused physical as well as mental agony for which he is entitled to damages for such malicious prosecution by way of a decree for amount given later in the draft against the defendant.
3. That after a protracted trial on the said charge the plaintiff was acquitted on the 26 th of jan,2017, on the finding that the complaint was false. 4. That the defendant had made the complaint against the plaintiff maliciously and without a reasonable or probable cause. 5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental pain, has been lowered in the estimation of his friends, was prevented from attending to his business and incurred expenses in defending himself from the said charge. Particulars of special damage:
Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 5000 Fee paid to his clerk Rs. 500 Expenses incurred in summoning three defence witnesses on two dates Rs . 1500 Loss of business as a shop-keeper dealing in clothes Rs. 50000 Total Rs. 57000 6. That the cause of action for the suit arose on the 26 th of Jan, 2017, viz., the date of acquittal. 7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction of the court. 8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 67000. Relief:
The plaintiff claims: 1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation. 2. Rs. 57000 as special damage. 3. Interest pendent lite and future.
Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal knowledge and the contents of paragraphs 6 to 8 are believed by me on information received to be correct. SUBODH KUMAR (PLAINTIFF) MAHESH VERMA Pleader.
CONCLUSION An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without PROBABLE CAUSE and for a purpose other than that of bringing the alleged offender to justice. An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case. A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plainti ff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case. The public policy that supports the action for malicious prosecution is the discouragement of VEXATIOUS LITIGATION. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice. In most jurisdictions an action for malicious prosecution is governed by the COMMON LAW. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons IMMUNITY from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, FALSE IMPRISONMENT, unlawful detention, or malicious prosecution. An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest , the proper remedy is an action for false arrest. If a person is confined against her or his will,
the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.
BIBLIOGRAPHY
1. http://law.jrank.org/pages/8407/Malicious-Prosecution.htm 2. http://www.alllaw.com/articles/nolo/personal-injury/lawsuits-malicious-prosecutionabuse-process.html 3. http://www.legalindia.com/suit-for-damages-format/
CASES 1. Saville v. Roberts 2. Khagendra Nath v. Jacob Chandra 3. Mohammad Amin v. Jogendra Kumar Bannerjee 4. Gaya Prasad v Bhagat Singh
