Compensation - on sho
Shruti Shruti
(Querist) 18 August 2020
This query is : Resolved
Background:
I did file a complaint on 2016 and FIR was filed as per direction in 156(3) under 420, 406, 506(2). Later the FIR was quashed on HC for A2, A3. And dismissed for A1. The highcourt was ordered without hearing the defacto complainant.
And magistrate closed the FIR in 2018 based on this quash order.
I applied for recal of quash order and judgement allowed for recall.
And I applied for revision petition in 2020 challenging the closure of FIR. And revision allowed directing the magistrate to reopen and run the case.
Query:
My FIR closure report was given by a SHO who is retired now. The closure report says "since no documents provided closing this" like this.
But in my revision challenge, the order has mentioned as "all the relevant documents are attached and yet SHO and Magistrate has not allowed the case" like this.
Because of this improper and biased work of the SHO, my case was reopened after 4 years now. 4 years of loss and delay for me.
I want to apply for compensation on the SHO (retired now) using Writ Petition.
Kindly suggest me if this WP will work out or suggest otherwise.
SHIRISH PAWAR, 7738990900
(Expert) 18 August 2020
Hello,
As per me compensation from SHO is not possible only remedy you have is to file appeal or revision against the order and judgment.
Rajendra K Goyal
(Expert) 18 August 2020
It would be difficult to get compensation from SHO in the given circumstances.
Discuss in detail with your lawyer who is fully aware of full case file.
Dr J C Vashista
(Expert) 19 August 2020
@ Shruti Shruti,
Prima facie you are counsel for the complainant, isn't it ?
It would be better to consult a local senior with entire case file for better appreciation of facts and guidance.
Dr J C Vashista
(Expert) 19 August 2020
No case is made out from the vague and distorted facts posted by you qua seeking compensation from then SHO (stated to have been retired now).
Shruti Shruti
(Querist) 19 August 2020
Hello @Vashista Sir,
Yes I am taking of the case by self as PIP.
Since the SHO took money from the opposite party and closed the case which is even mentioned in the revision judgement. So it made a delay of 4 years for my case. And SHO was totally biased. Hence my query.
Will I be able to run a case on SHO?
Shruti Shruti
(Querist) 19 August 2020
Hi @shirish,
Appeal is already done and judgement delivered. I had mentioned the same here in the 1st paragraph. Kindly recheck it.
Shruti Shruti
(Querist) 19 August 2020
Hi @Rajendra Sir,
No counsel I have appointed. I am PIP and got the judgement as PIP in MHC for my revision, recall petition as well.
Rajendra K Goyal
(Expert) 19 August 2020
If the fact of bribery is mentioned in the judgement, send letter to department to lodge FIR against the person.
Shruti Shruti
(Querist) 19 August 2020
Hello @Rajendra Sir,
No its not mentioned in the judgement. In the revision judgement it is mentioned as "though the complaainant have submitted enough documents, no action was taken by sho and closed the case irresponsibility" . like this..
I want to raise a case on her. Kindly suggest on what legal aspects can I
Rajendra K Goyal
(Expert) 19 August 2020
Till you have proofs beyond doubt, success is doubtful.
Large no. of corruption cases fail in trial due to non-availability of proofs.
Dr J C Vashista
(Expert) 19 August 2020
Please go through my opinion once again where I have clearly mentioned that no case is made out against SHO (retired) for compensation.
However, I appreciate your courage/ efforts/ action / proceedings.
P. Venu
(Expert) 19 August 2020
In order to get compensation, you need to file a civil suit. There cannot be definite as to the verdict. Every thing depends upon the evidence that could be adduced.
Shruti Shruti
(Querist) 20 August 2020
Thank You @Vashista sir for your SUGGESTIONS.
I am kinda how irresponsible the SHO is and it caused much losses for me. If no one raise a note on this, SHOs tend to do the same. I believe they are accountable for the case they are handling. Just like that they cant do on their favour.
I know I cant change it immediately. But an initiation can make sure that others dont repeat it again is my thought.
Also let me run the case and let the SHO represent herself for the case. I am not expecting complete favour of judgement for me. But she should understand that what she has done is wrong. And it can be a lesson for other SHOs.
Hence my question on how to raise case on her in this matter.
K Rajasekharan
(Expert) 20 August 2020
Compensation for wrongful prosecution has not been a well established matter in our criminal jurisprudence or proceedings particularly because courts and governments are reluctant to uphold it, despite having Sections 357 A – C in the CrPC.
The previous law commission in its 277th report proposed to add a new chapter in the CRPC on victim compensation for wrongful prosecution.
Your case does not fall under that too because you have not been acquitted after wrongful prosecution. Only those persons who got acquittal alone can file a case for wrongful compensation.
You may read my write up on the issue to know the possibilities as of now or proposed, at https://www.lawwatch.in/2018/11/29/Wrongful%20%20prosecution/
Dr J C Vashista
(Expert) 20 August 2020
On Dealing with Malicious Prosecution
Malicious cases are on the increase. The educated and rich sections of society such cases are being used as an easy tool to bring someone down. One reason for this the emergence of many poorly drafted women laws enacted for the noble purpose of ending atrocities against women. Many of the cases relating to marriage and family matters are frivolous ones narrating noting but fairy tales. Males are also not reluctant in filing such cases to win somehow. Some of the males involve woman and use sexual harassment as an easy tool to settle old scores on others. Therefore it is necessary for anyone to know how one can effectively deal with malicious cases which he may be slapped with at times.
Malicious Prosecution here refers to the practice of filing of any civil or criminal cases that has neither any substantive value nor for getting any genuine relief but intended to injure the defendant or bring him to a negotiating table or to set an old score out of some egoistic clashes. In other words, malicious prosecution is the institution of unnecessary case against another without any probable cause and is an abuse of the process of the court. When such a case is ordered in favour of the defendant the defendant gets the right to initiate civil of criminal case against the original plaintiff for either punishing him or seeking civil damages. Filing a malicious case against a person with no genuine cause or to put him/her on hassles is an absolute abuse of the judicial process. It has to be dealt with seriously by the society, particularly in the context of exponential increase in the number of such cases.
The basic ingredients of a malicious case are:-
• The original case must have ended in clear acquittal of the defendant
• The case should have been on genuine grounds or any just cause
• The case must have been pursued mainly for injuring the other.
In fact the prosecutors and the law enforcement officials have immunity from unnecessary prosecution while engaging in their official duties but if anybody can prove that the prosecutor or law enforcers have acted in excess of their normal scope of authority they cannot claim such immunity. In such a case they would also come under the charge of malicious prosecution and consequent punishment of civil and criminal nature. If a person can prove that he/she has suffered monetary loss such as lost wages, loss of employment, advocate fee paid etc in the course of any malicious prosecution against him he may be awarded the actual cost.
One can file a case against malicious prosecution not only against the prosecutor or the police, but also against the person who had set the criminal action in motion by registering the First Information Statement before the police or filing a complaint before the magistrate.
Malicious prosecution is a crime under section 211 of the Indian Penal Code (IPC) and is closely connected to the section 499 of the IPC, another crime of defamation. Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. What the section 211 of IPC says is that if anyone institutes a criminal proceeding intended to cause injury to any person knowing that there is no lawful ground, he shall be punished with jail term of either description for two years or with fine. If proceeding is for an offence chargeable with death or life term or for seven years the punishment shall be for 7 years. The crime is a non-cognizable one, triable by magistrate or sessions judge as the case be.
Similarly the Section 499 states whoever by words makes any imputation concerning any person intending to harm the reputation of a person is said to defame that person. The section 500 of the IPC provides for punishment for defamation.
The person prosecuting someone for filing a malicious case must establish that the accused had intention to cause injury - section 44 of the IPC defines the term “injury” - to the reputation or property. Injury, as per the definition, means any harm caused to any person in body, mind, reputation or property. It must also be proved beyond doubt that the accused had knowledge of the fact that no just cause exists for filing the original case.
However, if the allegation made in the case is true or conveys a caution to the society it does not fall within the ambit of defamation. Either the inability of a complainant in the original case to prove the charges or the falling of his/her the evidence short of required standard in trial is not a valid ground to prove malice. The acquittal of a person on some technical grounds is not a valid ground for anyone to file a case against the petitioner for malicious prosecution. A statement of oath falsely supporting the prosecution case against an accused or a statement to the police, do not fall within the meaning of section 211 of the IPC. What is really required is to clearly prove the malice, injury and culpable nature of the prosecution in the original case in order to file a case against petitioner of a malicious case.
Rajendra K Goyal
(Expert) 21 August 2020
State prosecuted, not the SHO. Any claim lies against the state and not the Retired SHO.
