Malicious Prosecution: Balancing Justice and Abuse of Process of Law - Part II

In the first part of this series, various Indian caselaws concerning malicious prosecution were discussed, including the case of S Nambi Narayanan v. Siby Mathews & Ors which concerned the unjust persecution of former ISRO scientist Nambi Narayanan.

In this context, it is also relevant to note the critical observations of the Additional District and Sessions Judge, Bareilly, Uttar Pradesh in State v. Abhishek Gupta. In the order dated July 30, 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.

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.

A. The United States of America

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 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 context, 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

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.

The UK Supreme Court in the case of Willers v. Joyce, has enlarged the scope of the tort malicious prosecution to also apply to even 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

In Germany, Grundgesetz (GG) - The Constitution of Germany, 1949, The German Criminal Code, Bürgerliches Gesetzbuch (BGB)-The German Civil Code [§ 839 of BGB] 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 [Article 34 of GG].

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.

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.

In Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi, the High Court of Delhi, while observing that "the possibility of invoking civil remedies can by no stretch of 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. The Court expressed concern over the many instances wherein innocent persons were subjected to prosecution for crimes they did not commit.

Based on the same, the Law Commission of India through its then Chairman, Dr. Justice BS Chauhan, Former Judge, Supreme Court of India, submitted its report named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” [Report No. 277 dated 30.08.2018]. 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 CrPC 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 CrPC (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.

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.

About the authors: Gaurav Nair is the Managing Partner of Saga Legal. Ishwar Ahuja is a Principal Associate and Bhairavi SN is a Senior Associate at the Firm.

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