Memorial for Petitioners

IN THE COURT OF CIVIL JUDGE (SR. DIVISION),YAMUNANGAR

PETITION UNDER SECTION 6 R/W SECTION 15 OF THE CIVIL PROCEDURE

CODE,1908

Case No. _____/ 2016

PETITIONERS DEFENDANT

RAMESH KUMAR VERSUS HARSIH YADAV

& RAJAN MEHTA

BEFORE SUBMISSION TO
CIVIL COURT

MEMORAMDUMON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS

1. LIST OF ABBREVIATION ii

2. INDEX OF AUTHORITIES iii

Books iii

Cases iii

Statutes iii

3. STATEMENT OF JURISDICTION iv

4. STATEMENT OF FACTS v

5. ARGUMENTS PRESENTED vi

6. SUMMARY OF ARGUMENTS vii

7. ARGUMENTS ADVANCED 1-9

8. PRAYER 10

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LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. Anr. Another
3. CPC Civil Procedure Code
4. HC High Court
5. IPC Indian Penal Code
6. Ors. Others
7. Pg. Page
8. SC Supreme Court
9. SHO Station House Offier

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INDEX OF AUTHORITIES

STATUTES REFFERED:
1. Civil Procedure Code, 1908

CASES REFFERED:
1. Bradshaw v Waterlow & Sons 1915 3 KB 527
2. Bromage v. Prosser 1825 C 247
3. Harbhajan Singh v. State of Punjab AIR 97, 1965 SCR (3) 235
4. Heeralal v. Bandhu 1889 9 AWN 189
5. Mirza v. Bhagwati Parshad 1895 1 OB 786
6. Mohammad Amin v Jogendra Kumar AIR 1947 PC 108
7. Muhammad Saddiq v. Panna Lal (1903) 26 All. 220
8. Osumanuyawa Yaw Ewna v. Nana Sue Ofori Atta AIR 1930 PC 260
9. Pannalal v. Shrikrishna ILR 1955 MB 189
10. Rookes v. Bernard 1964 AC 1129

11. Savile v. Roberts (1698) 1 Ld Rayam 374

12. Venu v. Coorya Narayan1881 ILR 6 Bom 376

BOOKS REFFERED:
1. Dhirajlal & Ratanlal, The Law of Torts, Wadhwa & Company, Nagpur
2. Bangia R.L., Law of Torts, Allahabad Law Agency, Faridabad

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STATEMENT OF JURISDICTION
The present Petition is filed before the Hon’ble Court under section 6 r/w section 15 of the
Civil Procedure Code, 1908

That section 6 of CPC states that:

Pecuniary jurisdiction: Save in so far as is otherwise expressly provided, nothing

herein contained shall operate to give any Court jurisdiction over suits the amount or
value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary
jurisdiction.

That the section 15 of the CPC states that:

“Court in which suits to be instituted: Every suit shall be instituted in the Court of the
lowest grade competent to try it.”

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STATEMENT OF FACTS

Ramesh Kumar and his friend Rajan Mehta are both Human Rights Activists. ,staying in a
village Yamunanagar.

21' December, 2015: At about 7 pm, Ramesh and Rajan while on their evening walk; saw a
dead body of a girl lying near by the road. They both immediately report about the murder of
that girl to Police Station of Village Yamunanagar. The SHO of the Police Station Mr. Harish
Yadav was a person against whom Ramesh and Rajan held many rallies and also filed writs in
the court against Police Department especially against Mr. Harish Yadav SHO of Police Station
of Village Yamunanagar. Ramesh and Rajan gave every detail about the incident in Police
station.Investigation was started by investigation officer.

25th December, 2015 Mr. Harish Yadav ararrested Ramesh and Rajan on the charge of
murder of the girl whose dead body was found by Ramesh and Rajan. SHO had personal
Knowledge about the innocence of two accused but because of SHO's personal grudges for
Ramesh and Rajan he want to teach a lesson by falsely implicating them.

Aftermath

1. Both accused immediately got bail by Session Court. On filling of the Challan under Section
173 of Cr. P.C. Session Judge discharged both the accused because no relevant evidence was
placed on record by Investigating Officer against them.

2. But even after getting discharged by Session Court, they had to suffer a kind of social
boycott from the society with their prospective marriages were broken and an adverse effect on
their business.

3. So, they were in a very bad situation just because of SHO's false allegation and
imprisonment resulting into malicious prosecution. They filed a suit for damages against SHO.
The defense contented , no notice is severed upon the SHO under section 80 CPC.

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ARGUMENTS PRESENTED

A. Whether notice under Section 80 of CIVIL PROCEDURE

CODE,1908 is required or not?

B. Whether or not the defendant is liable for MALICIOUS

PROSECUTION under civil law?
C. Whether the defendant is liable to pay EXEMPLARY DAMAGES or
not?

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SUMMARY OF ARGUMENTS

A. Whether notice under Section 80 of CIVIL PROCEDURE CODE,1908

is required or not?
That it is most humbly submitted that the notice under section 80 of Civil Procedure
Code is not required in the present case as the essentials of section 80 are not being
fulfilled. Further it is submitted that it is stated in the section that the public officer
must act in his official capacity in order to invoke the requirement of notice under
Section 80 of the CPC. But, in the present case the SHO acted in personal capacity and
due to his personal grudges he framed false charges against the petitioners even after
knowing that the petitioners were innocent.

B. Whether or not the defendant is liable for MALICIOUS

PROSECUTION under civil law?

It is submitted that in the action for malicious prosecution plaintiff must prove that he
was prosecuted by the defendant,the proceeding complained of terminated in favor of
the plaintiff if from their nature they were capable of so terminating, the prosecution
was instituted against him without any reasonable or probable cause,the prosecution as
instituted with a malicious intention, that is, not with the mere intention of carrying the
law into effect, but with an intent, which was wrongful in point of fact and he has
suffered damage to his reputation or to the safety of person, or to the security of his
property.That it is most humbly submitted before this Hon’ble court that as all the
elements of mailicious prosection are being satisfied in the above case hence the
defendant be made liable for the same.

C. Whether the defendant is liable to pay EXEMPLARY DAMAGES or

not?

It is submitted that exemplary or punitive damages are assessed to penalize the

wrongdoer or to make an example to others. As a general matter, the purpose of
awarding punitive or exemplary damages, which are imposed in addition to sums to

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compensate the injured party for actual loss, is to punish and deter blameworthy
conduct. It is submitted that the defendant is liable to pay exemplary damages to the petitioners

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ARGUMENTS ADVANCED

A. Whether notice under Section 80 of the CIVIL PROCEDURE

CODE is required or not?
That it is most humbly submitted that the notice under section 80 of Civil Procedure Code is
not required in the present case.

That section 80 of CPC states as follows:

Notice. - (1) Save as otherwise provided in sub-section (2), no suit shall be

instituted against the Government (including the Government of the State of Jammu
and Kashmir) or against a public officer in respect of any act purporting to be done
by such public officer in his official capacity, until the expiration of two months next
after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a
railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway,
the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir,
the Chief Secretary to that Government or any other officer authorised by that
Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that
Government or the Collector of the district;

and, in the case of a public officer, delivered to him or left at his office, stating the
cause of action, the name, description and place of residence of the plaintiff and the
relief, which he claims; and the plaint shall contain a statement that such notice has
been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including
the Government of the State of Jammu and Kashmir) or any public officer in respect

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of any act purporting to be done by such public officer in his official capacity, may be
instituted , with the leave of the court, without serving any notice as required by sub-
section (1); but the court shall not grant relief in the suit, whether interim or
otherwise, except after giving to the government or public officer, as the case may be,
a reasonable opportunity of showing cause in respect of the relief prayed for in the
suit:

Provided that the court shall, if it is satisfied, after hearing the parties, which no
urgent or immediate relief need be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the government or against a public officer in respect of
any act purporting to be done by such public officer in his official capacity shall be
dismissed merely by reason of any error or defect in the notice referred to in sub-
section (1), if in such notice—

(a) the name, description and the residence of the plaintiff had been so given as to
enable the appropriate authority or the public officer to identify the person serving
the notice and such notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially
indicated.

That it is most humbly submitted that no notice was required to be served to the SHO under
section 80 of the CPC as the essentials of section 80 are not being fulfilled.

That it is most humbly submitted before this Hon’ble Court that it is stated in the section that
the public officer must act in his official capacity and good faith in order to invoke the
requirement of notice under Section 80 of the CPC. But, in the present case the SHO acted in
personal capacity and due to his personal grudges he framed false charges against the
petitioners with malafide intention even after knowing that the petitioners were innocent. The

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same was upheld by the court in Muhammad Saddiq v. Panna Lal 1, “Notice under Section
80, Civil P.C., was not necessary as the officer had not acted in good faith in pursuance of
the law, but had taken advantage of his position as a public officer to commit illegal and
tortious acts maliciously and without cause.”

That it is most humbly submitted that the public officer in question did not act in good faith
and hence the defense of section 80 cannot be availed in this case at hand.

It is submitted before this Hon’ble Court that good faith is defined in Section 522 of IPC.
general clauses act defines good faith3 as “a thing shall be deemed to be done in "good faith"
where it is in fact done honesty, whether it is done negligently or not.

It was held by the Court in Harbhajan Singh v. State of Punjab4, "Thus, it would be clear
that in deciding whether an accused person acted in good faith, it is not possible to lay down
any rigid rule or test. It would be a question to be considered on the facts and circumstances
of each case...what is the nature of the imputation made, under what circumstances did it
come to be made; what is the status of the person who makes the imputation; was there any
malice in his mind when he made the said imputation; did he make any enquiry before he
made it; are there reasons to accept his story that he acted with due care and attention and
was satisfied that the imputation was true? These and other considerations would be relevant
in deciding the plea of good faith made by an accused person who claims the benefit of the
Ninth Exception".

Thus it is submitted that in the present case it is clear from the facts that the SHO had
knowledge that the petitioners were innocent and only because of his personal grudges and
malafide intention, he implicated false charges against them. Furthermore it is pertinent to
mention the fact that the petitioners are law abiding citizens and in good faith they informed
the police at earliest after finding a dead body lying nearby the road while they were doing
their evening walk.

1
(1903) 26 All. 220
2
“Good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due
care and attention.
3
Section 3(22) general clauses act
4
AIR 97, 1965 SCR (3) 235

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B. Whether the defendant is liable for Malicious Prosecution under

Civil Law or not?

That it is most humbly submitted that the defendant is liable for malicious prosecution under
the civil law and thus he is liable to pay compensation and damages. It is submitted that
malicious prosecution in Civil law as been defined as Malicious institution against another of
unsuccessful criminal, bankruptcy or liquidation proceedings, without reasonable or probable
cause.5

That it is submitted that for the convenience the definition of malicious prosecution has been
bifurcated to constitute the following essentials which has been upheld in the case of
Mohammad Amin v Jogendra Kumar6:

“In the action for malicious prosecution plaintiff must prove:

1. that he was prosecuted by the defendant

2. that the proceeding complained of terminated in favor of the plaintiff if from their
nature they were capable of so terminating
3. that the prosecution was instituted against him without any reasonable or probable
cause.
4. That the prosecution as instituted with a malicious intention, that is, not with the mere
intention of carrying the law into effect, but with an intent, which was wrongful in
point of fact.
5. That he has suffered damage to his reputation or to the safety of person, or to the
security of his property.”

That it is most humbly submitted that the essentials as provided for malicious prosecution are
being fulfilled in the present case at hand. This contention is based on the following points of
arguments:

5
Ratanlal & Dhirajlal, The Law of Torts, Wadhwa & Company, Nagpur pp 309
6
AIR 1947 PC 108

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2.1 THAT THE PETITIONERS WERE PROSECUTED BY THE DEFENDANT

That it is most humbly submitted that in the celebrated judgment of Pannalal v.

Shrikrishna7,”The requirement of prosecution by the defendant involves two elements, first
that the plaintiff was prosecuted and secondly, that the defendant was the prosecutor. To
prosecute is to to set the law in motion, which is done by an appeal to some person, clothed
with judicial authority in regards to that matter. The gist of the action is that the defendants
set the Magistrate in motion.”

It is submitted that in this particular case at hand this element of malicious prosecution is
being fulfilled. In the ambit of the present case, firstly, the petitioners were prosecuted. A
trial was conducted on them under section 302 of the IPC for committing murder of the girl
which they found dead on the road during their evening walk. It is pertinent to mention that
when the defendant himself is the person on whose complaint the court takes cognizance
against the plaintiff, there is no difficulty in holding that the defendant is the prosecutor.
Second element is also being fulfilled as the defendant initiated the criminal proceeding
against the plaintiff with a malifide intention. The SHO framed false charges in the challan
sheet against the petitioners and they were implicated falsely.

2.2 THAT THE PROCEEDING TERMINATED IN THE FAVOR OF THE PETITIONERS

That it is humbly submitted before this Hon’ble court that in the case of Osumanuyawa Yaw
Ewna v. Nana Sue Ofori Atta8 the court held that “It is essential to show that the proceeding
alleged to be instituted has terminated in favor of the plaintiff, if, from its nature, it be
capable of such a termination.” Furthermore in the case of Venu v. Coorya Narayan9 the
court observed that it is enough if the prosecution has been discontinued, or if the accused
has been acquitted or discharged.

7
ILR 1955 MB 189
8
AIR 1930 PC 260
9
1881 ILR 6 Bom 376

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That it is most humbly submitted that on the complaint of SHO the charges were framed
against the petitioners under section 302 of IPC which were false in nature and were against
the provisions of criminal jurisprudence. The learned trial court considered the matter at hand
and a trial on the charge of murder was held against the petitioner. It is imperative to state in
this regard that the learned considered the facts of the case and observed in this regard that
there was no evidence on record so as to prove the petitioner guilty. Thus the learned trial
court passed an order acquitting the accused and upheld that they be discharged of the charge
falsely implicated against them. It is submitted that this essential of malicious prosecution is
fulfilled in the ambit of the present case as the proceeding against the petitioners were
terminated.

2.3 THAT THERE WAS NO REASONABLE OR PROBABLE CAUSE

That it is most humbly submitted that Reasonable and probable cause means that there are
sufficient grounds for thinking that the accused was probably guilty but not that the
prosecutor necessarily believes in the probability of conviction; he is only concerned with the
question whether there is case fit to be tried. Objectively there must be reasonable and
probable cause for the prosecution, and the prosecutor must not disbelieve in his case, even
though he relies on legal advice. 10 furthermore, in the case of Bradshaw v Waterlow &
Sons11, “if the charge is found to be false, the onus would be on the defendant to show that he
has reasonable and sufficient cause for making it.”

That it is most humbly submitted before this Hon’ble Court that in this particular case in hand
there was no probable cause for the defendant to frame charges against the petitioners . the
defendant deliberately and maliciously framed charges under section 302 of IPC against the
petitioner as he wanted to undertake vengeance from the petitioners due to his personal
grudges. It is very evident from the facts that during their evening walk the petitioners saw a
dead body on the road and since they were public-spirited person they reported the matter
immediately to the conserved authorities without ay hesitation. The defendant did not have
any evidence against them and implicated them due to his personal malice. It is very
reasonable to state here that a person cannot be implicated just because of the reason that he
finds a corpse lying on a road. This would be against the spirit of law and humanity. Thus it
is contented before this Hon’ble court that the defendant without any evidence framed

10
Mirza v. Bhagwati Parshad 1895 1 OB 786
11
1915 3 KB 527

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charged against the petitioners who were innocent just to harass them. The learned trial court
while conducting the trial observed this fact that there was no evidence on record to convict
the petitioners. This fact is berry relevant in this regard hence this essential of malicious
prosecution is being fulfilled in this present case.

2.4 THAT THERE WAS MALICIOUS AND UNLAWFUL INTENTION

That it is humbly submitted before this Hon’ble Court that if when the prosecutor instituted
criminal proceedings he knew he had no reasonable grounds for the steps he was taking. The
definition of malice given by Bayley J., in Bromage v. Prosser12, viz., “wrongful act done
intentionally without just cause or excuse;” will distinctly apply, and no further proof of
malice would be required; but he really believed he has such reasonable, although infact he
has it not, and was actuated not by such belief, but also by personal spite or desire to bring
about the imprisonment of, or other harm to, the accused, or to accomplish some other
sinister object of his own, that personal enmity or sinister motive would be quiet sufficient to
establish the malice required by law to complete a cause of action. Furthermore, in Heeralal
v. Bandhu13, the court held that, the bringing of the charge false to the knowledge of the
prosecutor imports in law malice sufficient to support a similar action.

That it is most humbly submitted that the SHO in question had a malicious intention to get
the petitioners falsely implicated. It is pertinent to mention that the petitioners were social
activist by profession and had conducted rallies and filled writs against the police department
especially against SHO for not following his official duties. Due to this fact, the SHO had
grudges against the petitioners and he wanted to take revenge no matter what came. One day,
when the petitioners came to him to inform about the unfortunate event, the defendant got the
opportunity which he was looking for. He misused his power and position in the police
department to take revenge from the petitioners. The defendant framed false charges against
the petitioners. Thus It is contented that the defendant had a malifide intention to get the
petitioners convicted for an offence which they had no committed and for which there was no
slightest evidence on record.

12
1825 C 247
13
1889 9 AWN 189

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2.5 THAT THE PETITIONER SUFFERED DAMAGE TO HIS REPUTATION:

That it is most humbly submitted before this Hon’ble Court that

In Savile v. Roberts14, HOLT C.J., opined that there are three sorts of damages anyone of
which would be sufficient to support an action for malicious prosecution:

1. The damage to a man’s fame, as where the matter whereof he is accused is

scandalous;
2. The damage done to the person as where a man is put in danger of losing his life,
limb or liberty;
3. The damage to a man’s property, as where he is forced to expend his money in
necessary charges, to acquit himself of crime of which he is accused

Furthermore, the damage must also be the reasonable and probable result of malicious
prosecution.

That it is most humbly submitted that the above mentioned ingredients are being fulfilled and
the petitioners suffered irreparable damages to his reputation. It is imperative to state here
that being social activist, the reputation in the society was of prime importance for the
petitioners. Due to the false charges, the petitioners were met with suspicious eyes by the
society members and had to face social boycott and thus suffered irreparable damage to their
reputation Furthermore, their prospective marriage was broken and their business suffered
adversely even though the petitioners had been discharged.

That it is most humbly submitted before this Hon’ble court that as all the elements of
malicious prosecution are being satisfied in the above case hence the defendant be made
liable for the same.

14
(1698) 1 Ld Rayam 374

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B. Whether the defendant is liable to pay EXEMPLARY

DAMAGES or not?

That it is most humbly submitted that the defendant being a public officer is liable to pay
exemplary damages to the petitioner.

According to Black's Law Dictionary (8th edition), “exemplary or punitive damages are
assessed to penalize the wrongdoer or to make an example to others. As a general matter, the
purpose of awarding punitive or exemplary damages, which are imposed in addition to sums
to compensate the injured party for actual loss, is to punish and deter blameworthy conduct.”
Such damages are not compensatory but are awarded to punish the defendant and to deter
him and others from similar behavior in the future.15

In Rookes v. Bernard16, it was held that Exemplary damages can only be awarded in three
classes of cases;

1. where there is oppressive, arbitrary or unconstitutional action by servants of the

Government or;
2. where the defendants conduct has been calculated by him to make a profit for himself
which may well exceed the compensation payable to the claimant or ;
3. where such damages are provided by statute.

That it is most humbly submitted that the defendant is liable to pay exemplary damages as
being a public servant the defendant has a primary duty to serve the public and not harass
them by filing false cases against them just for his personal benefit or to take revenge. It is
pertinent to mention in this regard that the claim for exemplary damages should be
maintainable in this regard so as to set an example for the public servants in future to avoid
frivolous actions by misusing their power and authority. It will create a deterrent effect in
future for such police officials. In the present case at hand, the defendant just wanted to take
revenge from the petitioners by all means. Thus he acted against his official duty and rather
than working for public welfare he engaged himself in an unlawful activity.

15
Re:Destruction Of Public&Pvt. ... vs State Of A.P. & Ors.
16
1964 AC 1129

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Prayer for Relief

Wherefore in the light of the contentions raised, arguments advanced and authorities cited,
Counsel for the petitioners humbly pray & implore before this Hon’ble Court that it may be
pleased to adjudge and declare that:

 That the defendant may be held guilty for malicious prosecution.

 That the damages of Rs.18,00,000 be awarded to the petitioners for mental agony,
harassment and injury to reputation caused by the actions of the defendant.

The Court may in its discretion grant any provisional relief and also make any such order as it
may deem fit in terms of equity, justice and due conscience.

And for this act of kindness the Petitioners shall as duty bound ever humbly pray.

Respectfully submitted,

…………...….……...……………………

(Counsel for the Petitioners)

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