Malicious Prosecution

A case for prosecuting the prosecutors

Regular readers of Moneylife, and others, will recall an article called “Who will guard the Guardians?” …..”Quis custodiet ipsos custodes”.In that piece we had mentioned that a Public Prosecutor, though convinced that the complaint filed against our clients was false, was too scared to stop the prosecution. He felt that an enquiry would be instituted against him.

The good news is that our clients, half a dozen, were acquitted some time back. But they had to attend court 33 times, over six years. One of them was a double law graduate and all of them stood firm against bribes. The complanant, worried about being exposed in court, simply did not turn up for cross-examination. But does their acquittal solve the problem?  After all, the accused ranged in ages from 60 to 85 years.Is there any recourse? Yes, there is. It lies in prosecuting the complainant for malicious prosecution.

Did the clients opt for that? No. People are wary of courts. Each of us expects the other to fight for him. We, as a people, want to have our rights handed to us on a platter. And protected by the sweat of others.

YOU BE THE JUDGE.

One may well ask why we did not ask our clients to take the matter forward. The truth is, as  advocates, we cannot ask people to file cases, even pro bono. But the surprising thing is that it’s not just the layman who shies away. Even Supreme Court judges act the same.

Today’s paper carries a lead article featuring a retired judge’s complaint, about a corrupt judge, falling on deaf ears. While no names are mentioned and a lot of it is hearsay, one fails to understand why the complaining judge himself did not act more decisively when on the bench? The author is a very small man but faced with such a situation, his choice would have been to resign. It’s no great shakes to leave the bench. To our mind it was a dereliction of duty.

But there are other cases too, where judges show more spunk. A common tactic to avoid an unfavourable order is to ask for another judge to be assigned to the case. It’s not easy. Cogent reasons need to be given. More often than not, if the judge has an interest in the case, however minor, he recuses himself. But what of outright accusations?

Recently, if one read between the lines, one of the parties, obviously fearing the worst, wanted a change of scene. Rather stupidly, it accused the judge of corruption, hoping that the judge would give up the matter. This judge, fortunately, was made of sterner stuff and refused to budge  asking the complainant to seek relief further up the hierarchy. The case would, the judge said, go on till orders came from above. The complainant had to apologise;we hope it is not the end of the matter.

At Moneylife’s seminars, we have often stressed on the fact that too many cases are filed by the crooked. They seek the court’s backing to their nefarious activities. They clog the system with frivolous litigation. They have the money to spend. The other side is dragged to court and peeled alive of all he has. Even the shirt on his back. Can nothing be done? As stated above the solution lies in a counter attack for either frivolous litigation or malicious prosecution. The process requires the court’s permission but it can be procured. Once perpetrators realise that filing false complaints can lead them into hot waters, very hot waters with hefty fines, the pressures on the courts will drop. And justice will be delivered faster.

Courtesy: Moneylife