On Malice in Prosecution

DAD USED TO SAY:

'First blow and half the battle'

A distant cousin was active in the Gujrat University politics of the 70s and the 80s. He had this to say. 'We get our opponents involved in court cases. That keeps them out of our hair. They spend all their time worrying about their cases'. First blow and half the battle! Won?

Life is no different now.

Had promised Linkediners that I would add to the thoughts put forward by colleagues on false criminal cases. And how they work. And whether they can be arrested. So, here I am, adding a few thoughts of my own.

We get a lot of crime matters that, prima facie, look bogus in filing. Usually they involve property disputes, racked up many times in value to seem worthwhile, and with smart legal backing to boot. The usual aim, unfortunately, is to harass.

Sometimes, it is also the other way around. We also get offers to take up cases where the sole interest is to put the other party in a position where he, or she, '…. can be taught a lesson'. Our immediate response is that we are here to fight cases, not people. The reality, often, is different. People DO go to court with vengeance as the only driving force.

The first blow is to file a criminal case. It comprises half the battle. Surprisingly, where most people find it difficult to get the cops to even take down a complaint (FIR or NC), in revenge matters they act with amazing alacrity. Maybe they know and a little persuasion helps, of course. The wheels are soon set in motion. A neat little case is made out. A formal complaint lodged.

Step two. The papers are put up before the court. Have yet to come across instances where the complaint is summarily rejected. Instead, it is sent for investigation by the Investigation Officer (IO). Somehow, the soon-to-be-accused is made aware of impending doom. The sweat starts to form on the brow. Sleepless nights follow. The victim is at his wit’s end. Years of harrowing trial are about to begin. Kafkaesque stories seem like bedtime fairy tales. The IO invariably refuses a ‘C’ summary. The court has no option but to proceed. Summons is issued.

It is possible that public perceptions are to blame. Instant discharge could bring accusations of complicity, worse, of graft. People are quick to judge others of fantasy misdemeanours, usually fanned by idiot box anchors out to get TRPs rather than the truth. Trial by media is a shameful truism. Magistrates tread on eggshells.

By now, the victim is the accused. He runs to an advocate; if he is already not arrested. And if he is, a 'friendly' lawyer appears magically; one who says that there is nothing to worry about. For a fee, of course. Usually a goodly sum. The screws tighten.

At this point, one may ask, 'Is there no justice left anymore?' We run into Hobsonian choices. Be damned either way. Suppose the complaint is genuine, who is to decide? And if it not, who will? The court takes shelter in the lesser of the two evils.

Let the trial begin.

This is when the lawyer makes that vaulting suggestion, 'Let us go to the High Court under Sec. 492'. To our poor soul, it sounds like Heaven-sent redemption. Nothing can be farther from the truth. Hardly ever does this work. The reason is simple. All superior courts insist that one must first approach the court of least jurisdiction; which means the trial court.

The trial, even for the most innocent, is a harrowing experience. There is a place kept aside for the accused, a bench or an enclosure. For a woman accused, it is demeaning, sharing a bench with ladies of the night, drug smugglers, and the like. We had a client. From the upper echelons of society, she, who was accused of criminal defamation by her Co-operative Society’s Chairman over a heated letter. The obvious motive was to embarrass and ‘teach her a lesson’.

Fortunately the situation was not without its lighter moments. The complainant was absent. The matter was adjourned often. The lady was getting bored, justifiably, there on the wooden, hard bench in hard-core company. She did what any defiant, innocent woman would do. She pulled out a paper-back and started reading it. Running up to her, we asked her to cease and desist. 'Why?', she shot back. 'It’s against the rules'’ we explained. Came the haughty counter. 'Then change the rules'.

'We will', I said, 'after you are acquitted. Not now'.

Unfortunately, filing a criminal complaint is not that difficult. The reason is not too far to find. Suppose the complaint is well founded. Dismissing complaints ab initio would make a mockery of the law. There has to be a mechanism for relief. It is for the lawyer to find one and convince the court.

At the risk of repetition, we tell this story. A couple of months back, an elderly couple, wife with serious back trouble, was accused of some neglect in filing returns for a company from where they had retired as Directors a decade ago. Moreover, the company had made use of an amnesty scheme and paid the handsome amount of some Rs. 900, way back.

But the authorities had no cognisance of the fact. They filed suit, actually a criminal complaint, where the daily fine is Rs. 500. Over a period of ten years. The prosecuting attorney had a golden gleam in his eyes. Jackpot, he thought. Bail, he demanded. Nothing else or less.

We explained to the Magistrate that while bail may be sought, it was a stigma on the accused, especially an old couple. The facts did not warrant a trial, not even a summons. The couple had dutifully appeared in court. They would appear when asked. Bail should not be insisted upon.

The Magistrate had our plea in mind and let our clients go, without insisting on bail. But they still will be called to court. 'Why?', may we ask? The law has to find the path of least resistance. Till some mechanism is formulated, this is the way it has to be. Innocents may be put through the wringer, BUT, there is a way of beginning to put an end to malicious prosecution and frivolous litigation. Maharashtra has introduced legislation to curb the practice, but, as with all things good and bad, there is a catch.

In an adversarial system like ours, there is always a winner and a loser. All winners may then try to reap a second chance, not by way of an appeal as losers do, but by resort to retaliatory legislation. Each case would then be tried against the unsuccessful plaintiff or complainant; a never-ending saga. The statute therefore requires the permission of the Advocate General to be taken use of. Will the AG decide on a decision? And add to the imposing court docket? Looks unlikely.

Just as a Constitution is only as good as the people who implement it, laws are effective only when rightly acted upon. Recent statutes like the Anti Dowry laws and the Domestic Violence Act are often misused, and while the innocents may be exonerated, years of productive life are destroyed. Magistrates will do well to see through the haze and insist on quick prosecution, on pain of dismissing the complaint.

Students are told that all cases fall under only five heads. Justice, Equity, Common Sense (law), Unjust Enrichment and Malicious Prosecution. It is the last that we have tried to explore.