National law institute university, Bhopal

Project on

Ram Lal vs Mahender Singh

AIR 2008 Raj 8

Law of torts II

SUBMITTED BY-:
Dheeresh kumar dwivedi 2012 B.A.ALL.B.65 a-1214

SUBMITTED TO-:
prof.(DR.)rajiv khare PROFESSOR of law

2nd Trimester

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ACKNOWLEDGEMENT

I am very glad that I got an opportunity to learn and imbibe so many things while making this project. It helped to a great extent in developing researching skills which are very important for a student of law. First and foremost, I would like to Prof. (Dr.) Rajiv Khare for giving us this opportunity and always being such a great support. Secondly, I would like to thank my friends and family who are always there for me and without whom I wont be successful in achieving anything in life.

Dheeresh Kumar Dwivedi 2012 BA.LLB.65

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TABLE OF CONTENTS

1. Acknowledgement............................................................03 2. Introduction.......................................................................04 3. Case Study.........................................................................07 4. Bibliography.......................................................................12

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Introduction

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 favor 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 mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action. In W.B.S.E.B. v. D.K. Ray1 case the Supreme Court defined the term Malicious Prosecution as followes-: Malicious Prosecution is a judicial proceeding instituted by one person against another ,from wrongful or improper motive and without probable cause to sustain it. It is said to be a prosecution on some charge of crime which is wilful, wanton or reckless or against the prosecutors sense of duty and right or for ends he knows or he is bound to know are wrong and against the dictate of public policy.

Essentials of Malicious Prosecution To establish successful proceeding of malicious prosecution plaintiff has to prove certain essentials. That he was prosecuted by the defendant. The prosecution was instituted without any reasonable and probable cause. The defendant acted maliciously and not with a mere intention of carrying the law into effect. The proceeding complained of terminated in favour of the plaintiff. The plaintiff suffered damages as a result of the prosecution.

AIR 2007 S.C. 976

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When does proceeding commence?

The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint. In Khagendra Nath v. Jacob Chandra[1] 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. Elements of Malicious Prosecution-:

1.Institution or Continuation of legal proceeding-: There must have been a prosecution initiated by the defendant. The word prosecution means a proceeding in the court of law with 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 question whether there is a q prosecution of a person before process is issued calling upon to defend himself. One was view that a prosecution began only when process was issued and there could be no action when a magistrate dismissed a complain under section 203 of the Code of Criminal Procedure. The other view was that a prosecution commence as soon as charge was made before the court and before the process was issued to the court. 2. Termination of the proceeding in the favour of the plaintiff-: The plaintiff must prove that the proceeding was ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be acquittal on the merit and the finding of his innocence or by the dismissal of his complaint for technical defects or for non-prosecution. If however he 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 to plaintiff to prove his innocence as a separate issue.

3. Absence of reasonable and probable cause-: Reasonable and probable cause is an honest believe in the guilt of the of the accused based on the full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true would reasonably lead to 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 crime imputed. i) An honest belief of the accuser in the guilt if the accused.
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ii) Such belief must be based on an honest conviction of the existence of the circumstances which led the accuser. iii) Such secondly mentioned belief as to the existence of the circumstances must be based upon reasonable grounds i.e. sound grounds, as would lead any fairly cautious man in the defendants situation to believe so.

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 channelled 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 exception to this rule. The settled 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.

5. Damages-: It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceeding terminates in favour of the defendant, plaintiff may suffer damages as a result of the prosecution. The damages may not necessarily be pecuniary. According to HOLT C.J.s classic analysis of damages in Savile v. Robert2 ther could be three sort of damage any one of which could be sufficient to support any action of Malicious Prosecution. 1) The damages to a mans fame as where the matter whereof he is accused is scandalous. 2) The damage done to a person as where man put to danger of life, limb or liberty. 3) The damage to mans property as where is forced to expend money in necessary charges, to acquit himself of the crime of which he is accused.

(1899) 1 Raym 374

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Case Study Ramlal v. Mahendra singh (AIR 2008 Raj. 8) Decided by- Shri Vineet Kothari J.

Facts of the case-: 1. Pooran Singh son of defendant Ram Lal committed suicide in Nadbai, District Bharatpur (Rajsthan) on 14.01.1973. 2. After the post-mortem of the dead body recovered from a well in the village, the body was handed over to the defendant Ram Lal, which was cremated on 18.01.1973. 3. On 27.01.1973, the defendant Ram Lal (Father of the deceased) filed a FIR falsely implicating the plaintiff Mahender Singh and his father Girraj Prasad, who was a medical practitioner in the said town and a result of which they had to face criminal trial for over three years and had to remain in custody in connection with the same for a period of about three months. 4. Both, the plaintiff and his father were acquitted by the court beyond any doubt. 5. Thereafter, the plaintiff filed the present suit on 26.05.1977 for malicious prosecution and claimed damages 6. While proceeding was going on, the defendant Ram Lal died. As a result of which Plaintiff filed the suit against his Legal Representatives.

Arguements-: Mr. Parag Rastogi, learned Counsel appearing for the defendant-appellant urged firstly that the appeal of the plaintiff Mahender Singh had abated with the death of the defendant Ram Lal on. He relied upon Section 306 of the Hindu Succession Act, 1925, which is reproduced hereunder: 306. Demands and rights of action of or against deceased survive to and against executor or administrator.- All demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except
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causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. He also relied upon various judgments in support of his submission of abatement of plaintiff's appeal, namely G. Jayaprakash v. The State of Andhra Pradesh and Ors. 3 and M. Veerappa v. Evelyn sequeira and Ors4. In M.Veerappas case, the Supreme Court held that6. As against the preponderant view taken by several High Courts, a Full Bench of the Calcutta High Court alone took a contrary view in Krishna Behari Sen v. Corporation of Calcutta (1) (supra) Maclean, C.J. Speaking for the Bench held that the words, "personal injuries not causing the death of the party" if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do not cause death. As has been pointed out by Das. J in Punjabsingh v. Ramautar Singh (11) (Supra), the ratio in Krishna Behari Sen's (1) case had not been followed subsequently by the Calcutta High Court itself in any other case. The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in D.K. Cassim & Sons. v. Sara Bibi ILR XIII Rangoon 385. It is therefore clear that the contrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts.

Argument of Plaintiff-: Learned Counsel for the plaintiff-appellant Mr. Anil Mehta not only supported the impugned judgment and decree in favour of plaintiff to the extent that the prosecution by defendant Ram Lal of the criminal trial regarding the suicide committed by his son Pooran was malicious inasmuch as he not only directly filed FIR with the Superintendent of Police, Bharatpur after so many days of the death, but he adduced and produced before the court false evidences to see that the accused persons are harassed and face prosecution and conviction. However, he submits that the plaintiff and his father were let off in the said trial by the competent court and since the prosecution in question was malicious, therefore, the learned trial court ought to have awarded the compensation to full extent of Rs. 31,000/-.

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AIR 1977 AP 20. (1988) 1 UJ (SC) 720

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Argument of defendant-: On the side opposite, Mr. Parag Rastogi learned Counsel appearing for the defendantrespondent submitted that in a suit for malicious prosecution in Torts law, the following ingredients are required to be proved by the plaintiff: (i) The plaintiff has to prove that he was prosecuted by the defendant; (ii) The proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; (iii) The prosecution was instituted against him without any reasonable and probable cause; and (iv) It was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect. The defendant argued that mere assisting the Public Prosecutor appearing on behalf of the State in a criminal trial, as a complainant, the defendant Ram Lal cannot be said to have maliciously prosecuted the plaintiffs. According to him, there were reasons to suspect that the accused persons were involved in the crime of murder of his son Pooran. Merely because the plaintiffs were acquitted or discharged in a criminal trial, it cannot be said that the prosecution was malicious on behalf of the complainant because in such cases the prosecution cannot be said without any reasonable and probable cause. He submitted that , the learned trial court could not have gone beyond the pleadings of the plaintiff in this regard who had pleaded only this ground to be a ground of malicious prosecution and still hold the prosecution in criminal trial as a malicious prosecution. Relying on various decisions of this Court, the learned Counsel for the defendant urged that no case of malicious prosecution was made out by the plaintiff and therefore, the suit itself was required to be rejected. He relied on the judgments of Brijlal and Anr. v. Premchand 5 and Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar6.

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AIR 1974 Rajasthan 124 AIR 1953 SC 235

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The legal position was summarized by the Division Bench of the High Court of Rajasthan in Nandlal v. State of Rajasthan7 as under:

In a suit for the recovery of damages for malicious prosecution mere production of the judgment of a criminal court is not sufficient for the plaintiff to discharge the burden of proving malice and want of reasonable and probable cause. Criminal court may either acquit or discharge a person. There may not be sufficient ground for proceeding with a criminal case, for the evidence adduced by the prosecution might not have been relied upon for some reason or the other and yet the defendant might have good grounds for launching prosecution against the plaintiff. The fact that the prosecution ended in the discharge or acquittal of the accused does not necessarily warrant that the accusation made was baseless to the knowledge of the prosecutor : vide Rishab Kumar v. K.C. Sharma (l). In a suit for malicious prosecution it is no part of duty of the civil court to take into consideration all the documents submitted before the criminal court to offer comments on the dictum of the criminal court. Its function is to consider the evidence produced before it and then decide whether or not the plaintiff has succeeded in making out a case against the opposite party.

Decision-: The Court was of the opinion that the plaintiff had failed to prove that the defendant Ram Lal had maliciously prosecuted the plaintiff Mahender Singh and his father Girraj Prasad in the criminal trial. Merely because he lodged an FIR with the S.P., Bharatpur after recovery of the dead body of his son Pooran and pursuing the case as a complainant through his advocate before the said court, it cannot be said that the defendant Ram Lal had any malice in this regard. Merely because the plaintiffs came to be acquitted or discharged by the criminal court as the prosecution failed to prove the case beyond doubt as is required in criminal law, it does not mean that such acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution. The burden of proof squarely lied upon the plaintiffs to prove that the prosecution was malicious, malafide and done with an intention to harass and defame the plaintiffs. No such case is made out in the present case by the plaintiffs much less proved. Thus, the court had dismissed the plea of the plaintiff and to defendant, emancipated From all charges.

(1970) RLW 201

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Bibliography-: Law of Torts-Bangia R.K. Study Material of Dr. Rajiv Khare www.manupatra.com

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