Malicious Prosecution- criminal prosecution to be initiated
A.Mohamed Thaheer
(Querist) 20 April 2009
This query is : Resolved
What criminal action could be taken against a police officer who filed a case of malicious prosecution in the court of law?
What type of civil suit can be filed against such an officer for filing a case of defamation?
Is there any protection to the police officer under any law for defence in the above two cases.
N.K.Assumi
(Expert) 20 April 2009
The foundation of the action lies in abuse of the process of the court by wroungfully setting the law in motion and it is designed to discourage the perversion of the machinery of Justice for an improper purpose, as it is nobody's business to abuse the process of law.
In order that an action for malicious prosecution may succeed four elements must be satisfied.
1.Proceedings must have been instituted or continued by the Defendant.
2.Proceedings must have been unsucsessful or terminated in favour of the plaintiff suing.
3.Defendant must have acted without reasonable and probable cause.
4.Defendant must have acted maliciously.
N.K.Assumi
(Expert) 20 April 2009
Dear Mohamed,
Here is a piece of information posted few days back, by Hemant Agarwal, it will be of interest to you.
The following appeared in "Times of India", Mumbai Edition on April 18, 2009, page no. 01.
The law (Bombay HC) recognises High Handed nuisance of the Law Enforcing Agencies. The news paper cutting should be circulated to all the police stations and criminal lawyers to ensure future restrictions on such nuisance by the police dept.
Keep Smiling ... HemantAgarwal
09820174108
HC orders cops to pay for illegal detention
Mumbai: Navi Mumbai police commissioner Ramrao Wagh on Friday apologized to the Bombay high court for detaining a resident of the area for nine months on the basis of 24 false cases. Not satisfied with only a “sorry’’ from Wagh, the division bench of Justice Ranjana Desai and Justice Rajesh Ketkar said that prima facie it was a case of “gross negligence’’, and asked the Maharashtra government to pay Rs 10,000 as compensation to the detainee, Pawan Arora. This is the first time in the history of criminal justice in the state that compensation has been awarded in a detention case, as the stringent law gives “immunity’’ to police who approve such orders.
“The entire police department has to realize that you cannot sit in your chambers and churn out detention orders,’’ thundered Justice Desai. “A person cannot be deprived of his liberty without trial in a lighthearted manner. Preventive detention orders are drastic laws and have to be used with care and circumspection.’’ The judges made it clear that the order of compensation should not be treated as a precedent, but was meant for the “peculiar’’ facts of the case.
Wagh, who was present in court, told the judges that he had acted “in good faith’’, but passed the buck to his juniors, saying that he had relied on the documents prepared by subordinates. He further said departmental action had been initiated against the officers concerned, namely senior inspector S Dubal and inspector Tanaji Patil, then attached to the APMC police station.
Detaining officials can’t pass buck to juniors: Court
Mumbai: A Bombay high court division bench of Justice Ranjana Desai and Justice Rajesh Ketkar was not convinced by Navi Mumbai police chief Ramrao Wagh’s explanation that local resident Pawan Arora was wrongfully detained for several months on the basis of documents prepared by Wagh’s subordinates. “A detaining authority cannot abdicate his responsibility and rely only on his subordinates,’’ said the judges.
During the last hearing of the case, another bench of the court had taken away all Wagh’s powers to pass detention orders. On Friday, the court restored those powers, but asked him to be careful in future.
Wagh had ordered Arora’s detention on May 16, 2008, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act (MPDA). The order cited 28 cases allegedly filed against Arora. Nearly nine months later, on January 23, 2009, the HC quashed the detention order after it found that 24 of those cases did not involve Arora. The court said though Arora had a criminal past, it was wrong of the police to put him behind bars on the basis of false cases.
Last month, Arora moved the HC seeking Rs 2 lakh as compensation. The HC has now asked the state to circulate its order to the entire police machinery in Maharashtra.
Shashikant V. Patil
(Expert) 20 April 2009
Shri NK Assumi is right and given a very interesting example.
