‘Life demands self-respect and dignity’, were the words of former CJI Deepak Misra while awarding a compensation of Rs. 50 Lakhs to ISRO scientist Nambi Narayanan who was falsely accused of espionage by the Kerala Police. (S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500) Mr Narayanan fought the battle for 24 years to get the award from Hon’ble Supreme Court. What he lost was not just his reputation but his career as an eminent scientist, savings, his academic work as well as self-esteem trying to prove his innocence in a case that falsely labelled him as an enemy of the nation. He spent his time in prison, was tortured by the investigating authorities and when he was finally acquitted, the damage done was irreparable.
This is just one of the few cases among thousands, most of which go unreported and in many the victim doesn’t even claim compensation. In a recent judgment of the transistor bomb case of 1985, titled as “State Vs. Kartar Singh Narang and Ors.”, a Delhi court on 5th March 2020 acquitted 30 of the 59 accused persons after facing trial for more than 30 years holding that “It is amply clear from the evidence adduced on record that during the investigation of the present case, police officials had picked up various persons & made them approvers after pressurizing & torturing them. Those persons were warned that if they did not depose as per demands of police, then they would be made an accused in the present case”.
The remedies for the victims in such cases can be availed under public law, civil law and criminal law. Public law remedy is the grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. While civil law remedy gives the option of filing a civil suit for damages, criminal law deals with prosecuting the wrongdoer for malicious prosecution and perjury. The present article will analyze various provisions of the Indian Penal Code and Code of Criminal Procedure under which a victim of malicious/wrongful prosecution can approach the court.
Chapter IX of the IPC, 1860 deals with offences committed by a public servant or offences relating to public servants. Sections 166, 167 & 218, Indian Penal Code are offences which relate to the manner of conduct of public servants where a duty is cast upon them to obey the direction of law, or to prepare documents, record or other writings. A police officer deliberately filing a false FIR is an offence under Section 167, 218 of IPC. A police officer if misuses his power of arrest, he can be tried and punished under Section 166 of IPC (Lalita Kumari Judgment). In the case of Darshan Singh Vs Raj Singh, the Punjab and Haryana High Court upheld the conviction of the accused u/s 167 of IPC who was working as Halqa Patwari wherein the accused illegally made an entry in the revenue record without any order of the competent authority to help the other co-accused.
In a case wherein the municipal authorities failed to take any steps regarding the allegation of encroachment and illegal constructions in a manner as to cause danger, the Supreme Court (K.K. Patel And Anr vs State Of Gujarat And Anr. cited as (2001) 10 SCC 188) held that an offence under section 166 IPC is made out and the matter was remitted back to the magistrate for disposal. The court further held that “The indispensable ingredient of the said offence is that the offender should have done the act “being a public servant”. The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 of IPC the pivotal ingredient is the same as for the offence under Section 166 of IPC.”
Further, if public officers abuse his offices either by an act of omission or commission and the consequence of that is an injury to an individual action may be maintained as an offence under 166(A) of IPC. (Bharatbhai Chandubhai Gadhia vs State Of Gujarat, in R/SCR.A/951/2014).
Chapter X of IPC further deals with contempt of lawful authorities of public servants. This chapter along with other provisions covers the offences of giving false information given to public servants with the intention of causing injury and knowing it be false. Giving a false statement to the police officer in order to get an FIR registered against someone while knowing it to be false is covered under this chapter. Whenever any information is given to the authorities and when the said authority finds that the averments made in the complaint are false, it is for the said authority to initiate action under Section 182 I.P.C. (Harbhajan Singh Bajwa vs Senior Superintendent Of Police, 2000 CriLJ 3297).
In a case where the Sarpanch of Gram Panchayat knowingly issued a false certificate stating that he does not own any land except the land which he has made fit for cultivation was held to be guilty of an offence under section 177 of IPC (Bishan Dass V. State of Punjab and Anr, in S.L.P. (Crl.) No. 2331/2014).
If a person 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 to use his lawful power as a public servant to the injury or annoyance of any person, he commits an offence under section 182 of the Indian Panel Code.
The more serious offence under section 211 of the Indian Penal Code is committed when anyone with intent to cause injury to a person, institutes or causes to be instituted any criminal proceedings against that person, or falsely charges that person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person. A case may fall both under section 182 and section 211 of the Indian Penal Code. But where anyone gives information to a public servant which amounts to a false charge against a particular person or persons and it may appear that the information was given knowing that there was no just or lawful ground for giving it, the proper course is to proceed against him for the graver offence under section 211 of the Indian Penal Code (Kishan Chand Sood Vs. State, 1970 SCC OnLine Del 222).
Chapter XI of IPC, 1860 deals elaborately deal with giving false evidence and of offences against public justice. False averments made by a party in pleadings are sufficient to attract Chapter XI of the Indian Penal Code. Verifications being made under the sanction of a solemn declaration, a false verification will render the party verifying liable to a prosecution for an offence under Sections 191 and 193, Indian Penal Code.
The Hon’ble Delhi High Court in Hotel Hans Private Limited & Ors vs M/S Mirage Hospitality & Ors, 2018 SCC OnLine Del 8237 directed registrar general to initiate criminal action against the party by exercising its power under Section 340 of Cr.P.C read with Sections 191 and 209 IPC for swearing false affidavits.
In Maulad Ahmed V State of Uttar Pradesh, (1963) Supp 2 SCR 38 the Hon’ble Supreme Court held that a false entry made with the intention to save or knowing it to be likely to save the person from legal punishment is an offence under section 218 of IPC.
When a wife filed an affidavit claiming that she has no source of income and it was later found to be false, the trial court, directed the initiation of prosecution against the wife under Section 195 read with Section 340 of CrPC for committing offences under Sections 191, 192 and 193 of the Penal Code. The High Court of Gujarat noted that the action can be taken under Section 340 of CrPC when it is expedient in the interests of justice, and the impact on the administration of justice by misuse of women-centric laws would make it expedient for the trial court to direct the prosecution (Sejalben Tejasbhai Chovatiya v. State of Gujarat, 2016 SCC OnLine Guj 6333)
In the case of HS Bedi Vs NHAI in RFA 784/2010, the Hon’ble Delhi High Court interpreted the word claim u/s 209 of IPC and held that “The word “claim” in Section 209 of the IPC cannot be read as being confined to the prayer clause. It means the “claim” to the existence or non-existence of a fact or a set of facts on which a party to a case seeks an outcome from the Court based on the substantive law and its application to facts as established. To clarify, the word “claim” would mean both not only a claim in the affirmative to the existence of fact(s) as, to illustrate, may be made in a plaint, writ petition, or an application; but equally also by denying an averred fact while responding (to the plaint/petition, etc.) in a written statement, counter affidavit, a reply, etc. Doing so is making a “claim” to the non-existence of the averred fact. A false “denial”, except when the person responding is not aware, would constitute making a “claim” in Court under Section 209 IPC.”
For an offence under section 220 I.P.C. it must be shown that accused held an office which empowered him to commit any person for trial or to confinement or to keep such person in confinement. It must next be shown that the accused corruptly or maliciously committed such person for trial or to confinement or kept him in confinement in the exercise of that authority knowing that in so doing he was acting contrary to law.
Lastly, section 358 of the Cr.P.C. provides for compensation to persons groundlessly arrested whereas section 250 of Cr.PC provides for compensation for accusation without reasonable cause.
Procedure to File a Complaint- Application u/s 340 of CrPC, Bar u/s 195 CrPC and Sanction u/s 197 of CrPC
Section 195 of CrPC bars Court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. Courts are further barred from taking cognizance of offences relating to false evidence or relating to documents given in evidence in a proceeding before any Court, except on a complaint in writing of that Court or any of its authorized office. The Law Commission in its 41st Report has observed that “The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige.”
That even though there is a bar under section 195 CrPC, the same does not leave a private complainant without remedy and the aggrieved party can approach the court by way of an application u/s 340 of Cr.PC before the concerned court. The said position has also been clarified by the Hon’ble Supreme Court in N. Natarajan vs B.K.Subba Rao, 2003 AIR (SC) 541 wherein the court held that-
“Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC. In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wordings of Section 340 CrPC are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still, the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision.”
Now coming to Section 197 of CrPC, it provides that when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.
The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties (D T Virupakshappa vs C Subash, Supreme Court, 2015)
In India, the offence of Malicious Prosecution is still a developing law and has not received the seriousness it deserves. The number of false cases rising in matrimonial disputes, civil disputes converting into white-collar crimes and illegal arrests by the police authorities have only increased since the past decade. The state authorities and the private individual have little fear of law before making false statements before the courts. Much of it can be attributed to the ineffective and lengthy procedure to prosecute such acts and apathetic approach of the lower courts to initiate action when such acts are brought to their notice. The Supreme Court and High Courts have though time and again recognized the offence as one infringing the right to life and liberty of a person, there is little indulgence shown by the legislature to formulate a well-defined law to prosecute such offenders.
The Law Commission of India’s 1st Report on this topic dates back to 1956 (Liability of State in Tort) wherein the commission recommended the enactment of a suitable law to define the position on Government’s tortious liability, stating that it is necessary that law should, as far as possible be made certain and definite. The latest report being the 277th report of the Law Commission of India dated August 2018 pursuant to the direction of Hon’ble Delhi High Court in the matter of Babloo Chauhan @ Dabloo vs. State Govt. of NCT of Delhi, 247 (2018) DLT 31, wherein the Court highlighted the urgent need for a legislative framework for provided relief and rehabilitation to victims of wrongful prosecution, incarceration and asked the Law Commission to undertake a comprehensive examination of the aforesaid issued and make a recommendation thereon to the Government of India. The report regards the offence as ‘miscarriage of justice’ and has laid down detailed analysis of the law in India and has suggested measures such as forming special courts, making the trial a summary procedure and awarding compensation (both pecuniary and non-pecuniary) to the victim. Its been more than one and a half years since the report was published but there is no active measure taken by the government yet.
ABOUT THE AUTHOR
Shailesh Poddar is an advocate practising before courts in Delhi with a special interest in criminal law.