Xth Semester 131198

Memorial on Behalf of the Defendant

Mahender
IN THE MATTER OF

GOPAL

..............PROSECUTION

VERSUS

MAHENDER
...............DEFENDANT

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE

COURT OF JUDICIAL MAGISTRATE FIRST CLASS

MEMORIAL ON BEHALF OF THE DEFENDANT

DRAWN AND FILED BY THE COUNSELS FOR THE DEFENDANT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................................................... III

STATEMENT OF JURISDICTION ................................................................................................ VI

STATEMENT OF F ACTS ............................................................................................................ VII

ISSUES RAISED ....................................................................................................................... VIII

I. WHETHER T HE DEFENDANT CAN BE T RIED UNDER SECTION 211 OF T HE INDIAN PENAL

CODE, 1860 FOR T HE OFFENCE OF MALICIOUS PROSECUTION? ................................................ viii

SUMMARY OF ARGUMENTS ...................................................................................................... IX

ARGUMENTS ADVANCED ............................................................................................................ 1

I. T HE DEFENDANT CANNOT BE T RIED UNDER SECTION 211 OF T HE INDIAN PENAL CODE,

1860 FOR T HE OFFENCE OF MALICIOUS PROSECUTION................................................................. 1

P RAYER ...................................................................................................................................... 7

ii
 INDEX OF AUTHORITIES

Books Referred:

1. Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis Publications

2. R.V. Kelkar, Criminal Procedure, Eastern Book Company

Statutes Referred:

1. Code of Criminal Procedure, 1973

2. Indian Penal Code, 1860 (45 of 1860)

Cases

1. Amar Singh v. Smt. Bhagwati, AIR 2001 Raj 14...................................................... 5

2. Balbhaddar v. Badri Sah, AIR 1926 PC 46 at p. 49 ................................................ 3
3. Bharat Commmerce Industries v Sunrender Nath Sngh, AIR 1966 Cal 388 ........... 5
4. C. Ambalam v. S. Jagannatha (Ramaswami J.), AIR 1959 Mad 89 at 94. .............. 3
5. Dattatraya Pandurang Datar v. Hari Keshav Gokhale, 1948 Bom. LR. (Vol. L)
622............................................................................................................................ 2
6. Gulabchand Motilal Rathi v. National Textile Corporation Bombay and Ors.,
2007 (3) BomCR ...................................................................................................... 2
7. Kasibai v Emperor 1937 20 Nag LJ 92 ................................................................... 2
8. Kottan Thazhathu Veettil Krishnan v. Palari Thaivalappil Govindan and Ors.,
AIR 1989 Ker 83 ...................................................................................................... 6
9. Manikam v. Munuswami, AIR 1916 Mad 666.......................................................... 5
10. Nagendra Kumar v. Etwari Sahu, AIR 1958 Pat 329 .............................................. 3
11. Nagendra Nath Ray v. Basanta Das Bairagya, AIR 1930 Cal 392 ......................... 2
12. Nara-Singa Row v. Muthaya Pillai, 26 Mad 362..................................................... 6
13. Pannalal & Ors. v. Srikrishna & Ors.1955 CriLJ 1078. ......................................... 6
14. Periya Goundan v Kuppa Goundan, AIR 1919 Mad 229 (2) .................................. 5
15. Rajagopala v. Spencer &.Co. Ltd., 12 Mad LW 87 ................................................. 5
16. Shanmugha v. Kandaswami, AIR 1920 Mad 789 .................................................... 5
17. U Pothein v Butakhan, AIR 1936 Rang 473 ............................................................ 2
18. Ucho Singh v. Nagcshar Prasad, AIR 1956 Pat 285 at 287 .................................... 3

iii
19. Williams v. Taylor (1829) 6 183. ............................................................................. 4

iv
 LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

BomCR Bombay Cases Reporter

Cal Calcutta

CriLJ Criminal Law Journal

Crl. Criminal

Hon’ble Honourable

IPC Indian Penal Code, 1860

Jour. Journal

Ker Kerala

LJ Law Journal

LW Law Weekly

Mad Madras

Nag Nagaland

Pat Patna

PC Privy Council

Raj Rajasthan

Rang Rangoon

v. Versus

v
 STATEMENT OF JURISDICTION

The defendant humbly submits to the jurisdiction of the Hon’ble Court which has been invoked

under section 1901 of the Code of Criminal Procedure, 1973.

1
Section 190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under
sub- section (1) of such offences as are within his competence to inquire into or try.

vi
 STATEMENT OF FACTS

1. Mahender lodged a First Information report against Gopal, his business rival at Police
Station, Patiala who was later charged under Sections 379 and 380 IPC. In the said First
Information Report, it was mentioned by Mahender that Gopal had stolen the clothes lying
in his shop, apart from stealing the cash.

2. On making enquiries with Gopal, he misbehaved and abused Mahender, which not only
lowered his prestige, but adversely affected his health also. The Police after investigation
filed a charge sheet against Gopal and the Court tried him.

3. The Court framed issues on the basis of the pleadings of the parties. Thereafter from the
side of Gopal two witnesses were examined, P.W.1 Gopal and P.W.2 Narendra, and
documentary evidence such as F.I.R. and the charge-sheet and certified copies of the
essential documents were filed.

4. Whereas from the side of the defendant, Mahender, D.W.1 Mahender himself was
examined. After the investigation in the Criminal Court, Gopal was acquitted of all the
charges.

5. Gopal was arrested by the Police, which led to lowering of his prestige in the public. Since
Gopal was a reputed person not only in his business circle, but also in the society, therefore,
it adversely affected his standing. He had to attend approximately 20 dates of hearing
personally and lost daily income of about Rs. 50,000/-.

6. Not only this, he was also directed by the Court to stand in the Dock which led not only to
mental agony, loss of reputation and he was constantly agonizing under the apprehension
that he may be convicted by the Court. Ultimately, he was acquitted of all charges, on this
basis, Gopal instituted a criminal case for malicious prosecution.

vii
 ISSUES RAISED

I. WHETHER T HE DEFENDANT CAN BE TRIED UNDER SECTION 211 OF THE INDIAN

PENAL CODE, 1860 FOR THE OFFENCE OF MALICIOUS PROSECUTION ?

viii
 SUMMARY OF ARGUMENTS

I. THE DEFENDANT CANNOT BE TRIED UNDER SECTION 211 OF T HE INDIAN PENAL

CODE, 1860 FOR T HE OFFENCE OF MALICIOUS PROSECUTION.

In the instant case the defendant cannot be charged under section 211 for falsely charging Gopal
with an offence made with an intent to injure him. The defendant registered an FIR against the
prosecution for stealing clothes and money from his shop, and the prosecution was charged
under the provisions of IPC i.e. Section 379 and 380 and further tried for the same and
acquitted. The burden of proof lies on the prosecution for proving the fact that there existed no
lawful or reasonable ground for the launching of the prosecution or the FIR so registered and
moreover it was actuated by malice. If he is actuated by these considerations, he cannot be said
to have any malice. But if his object to prosecute is to be vindictive or to malign him before
the public or is guided by purely personal considerations he should be held to have malice in
the matter. The damage has been suffered by the defendant instead, as Gopal stole not only
clothes lying in the defendant’s shop but also the cash. The prosecution cannot claim the
defence that he suffered harm to his reputation or there has been malice on part of the defendant
for prosecuting him for stealing from defendant’s shop. There is a just and reasonable cause
present and can be inferred from the factual matrix itself. Therefore, in the instant case, it is
clear from the facts and arguments advanced that the defendant did not prosecute Gopal
maliciously and did not intend to harm the reputation of the prosecution as contended by it.
There is practically no evidence to impute any malus animus on the part of the defendant,
denoting that the defendant was actuated by ill will or improper and indirect motive. Hence,
the defendant cannot be tried for the offence of malicious prosecution.

ix
 ARGUMENTS ADVANCED

I. THE DEFENDANT CANNOT BE TRIED UNDER SECTION 211 OF T HE INDIAN PENAL

CODE, 1860 FOR T HE OFFENCE OF MALICIOUS PROSECUTION.

It is submitted to the Hon’ble court that in the instant case the suit for malicious prosecution is
not maintainable against the defendant. The burden of proof is on the prosecution to prove that
the defendant had filed the suit against the prosecution with an intent to injure his reputation.

In the instant case, the defendant did not prosecute Gopal maliciously, but on the basis of the
fact that Gopal stole cash and also clothes that were lying in the shop of the defendant. The
defendant had filed a FIR with respect to the same and Gopal was charged with the same but
later acquitted.

The mere fact that an individual gave information to the police against certain persons is by
itself not sufficient to make him the prosecutor. It is necessary to prove by the evidence of the
conduct of the person giving the information that he took an active part in getting certain
persons charged with an offence.2

It is submitted that prosecution cannot institute a case against the defendant under section 211
as there is a just and reasonable cause for which Gopal was charged and FIR was registered
against him. Gopal cannot be acquitted of the charges under section 379 and 380 as it is clear
from the facts of the case that he stole money and clothes from the defendant’s shop.

In the instant case, the accused cannot be charged under section 211 of IPC which is a provision
related to making a false charge against a person and the provision states that:

Section 211. False charge of offence made with intent to injure.

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any
criminal proceeding against that person, or falsely charges any person with having committed
an offence, knowing that there is no just or lawful ground for such proceeding or charge

2
Pannalal & Ors. v. Srikrishna & Ors.1955 CriLJ 1078.

1
against that person, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both;

and if such criminal proceeding be instituted on a false charge of an offence punishable with
death, imprisonment for life or imprisonment for seven years or upwards, shall be punishable
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

Henceforth, it is submitted as, that after inferring from section 211 that as far as the criminal
proceedings are supposed to fall under its ambit, it must be instituted with the knowledge that
there exists no just or lawful ground for such a proceeding and the most important ingredient
that requires to be fulfilled is falsity to prove the commission of the offence. Failure to prove a
case is not same thing as institution of a maliciously false case.3

Moreover, in order to prove an offence under this section what is necessary for the prosecution
to establish that the prosecution that has been brought against him was made with an intent to
cause injury to him; secondly, that the charge made against him was false, and it was made
with knowledge that there was no just and lawful cause for such charge.4

In Dattatraya Pandurang Datar v. Hari Keshav Gokhale5, it is held that when the defendant
lodged an information with the Police about the commission of cognizable offence and pointed
out suspicion at the plaintiff as the offender, the defendant was not liable, as in doing what he
did, he could not be regarded as launching of prosecution. Moreover, it is a well settled
principle that in case of recovery of damages by the plaintiff for malicious prosecution, he is
required to prove that was prosecuted by the defendant and such prosecution has terminated in
his favour and it was actuated with malice.6

Further, in the case of Nagendra Nath Ray v. Basanta Das Bairagya7 the police had arrested
the plaintiff on information supplied by the defendant suspecting the plaintiff immediately after
a theft had been committed in his house, but the Magistrate had to discharge the plaintiff as the
police submitted a final report not finding any evidence connecting the plaintiff with that theft.
The plaintiff therefore filed a suit for malicious prosecution and the Court held that the suit by

3
Kasibai v Emperor 1937 20 Nag LJ 92.
4
U Pothein v Butakhan, AIR 1936 Rang 473.
5
Dattatraya Pandurang Datar v. Hari Keshav Gokhale, 1948 Bom. LR. (Vol. L) 622.
6
Gulabchand Motilal Rathi v. National Textile Corporation Bombay and Ors., 2007 (3) BomCR.
7
Nagendra Nath Ray v. Basanta Das Bairagya, AIR 1930 Cal 392.

2
the plaintiff for damages for malicious prosecution could not lie against the defendant for,
assuming that there was a “prosecution” within the meaning of “malicious prosecution,” as the
expression was used in connection with suits of that nature, it was impossible to hold that the
defendant was liable for damages, for there was not an iota of evidence to suggest that he ever
went beyond giving a true information of the occurrence and also a true statement of the fact
that he suspected the plaintiff. The Court also held that the plaint itself was liable to be thrown
out, as there was no prosecution of the plaintiff at all, as police proceedings were distinct from
“malicious prosecution.”

It is further submitted that the damage has been suffered by the defendant instead, as Gopal
stole not only clothes lying in the defendant’s shop but also the cash. The prosecution cannot
claim the defence that he suffered harm to his reputation or there has been malice on part of
the defendant for prosecuting him for stealing from defendant’s shop. There is a just and
reasonable cause present and can be inferred from the factual matrix itself. To prove the fact
that the defendant is liable for maliciously prosecuting Gopal, the burden is on the prosecution
and prosecution must prove that

i) The prosecution by the defendant of a criminal charge against the plaintiff before a
tribunal into whose proceedings the Courts are competent to enquire, and

ii) That the proceedings complained of terminated in his favor, if from their nature they
were capable of so terminating; and

iii) That the defendant instituted or carried on such proceedings maliciously; and

iv) That there was an absence of reasonable and probable cause for such proceedings; and

v) That plaintiff has suffered damage.89

Moreover, 'malice' in an action for malicious prosecution does not mean wrongful intention or
recklessness but it is construed more narrowly to show that the prosecution was inspired by
some motive other than a desire to bring to justice a person whom he honestly believes to 'be
guilty10.

8
Nagendra Kumar v. Etwari Sahu, AIR 1958 Pat 329.
9
Balbhaddar v. Badri Sah, AIR 1926 PC 46 at p. 49; Ucho Singh v. Nagcshar Prasad, AIR 1956 Pat 285 at 287.
(Choudhary J.); C. Ambalam v. S. Jagannatha (Ramaswami J.), AIR 1959 Mad 89 at 94.
10
C.M. Agarwalla vs Halar Salt and Chemical Works AIR 1977 Cal 356.

3
Professor Winfield has also made similar observations in his book on the Law of Torts 11:

"Judicial attempts to define malice have not been completely successful. 'Some other motive
than a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty",
seems to overlook the fact that motives are often mixed. Moreover anger is not malice; indeed,
it is one of the motives on which the law relies in order to secure the prosecution of criminals,
and yet anger is much more akin to revenge than to any desire to uphold the law, perhaps we
are nearer the mark if we suggest that malice exists unless the pre-dominant wish of the accuser
is to vindicate law."

Laying an information before a Magistrate is sufficient to prove an action, no action lies for
institution of legal proceedings. Howsoever malicious, unless instituted without reasonable and
probable cause. Malice alone is not sufficient, because a person actuated by the plainest malice
may nonetheless have a justifiable reason for prosecution.12

Thus, in order to give an objective meaning to the term, 'malice', it should be found out whether
the accuser has commenced prosecution for vindication of justice e.g., for redress of a public
wrong. If he is actuated by these considerations, he cannot be said to have any malice. But if
his object to prosecute is to be vindictive or to malign him before the public or is guided by
purely personal considerations he should be held to have malice in the matter.

If acquittal means that the prosecution has been commenced without any reasonable and
probable ground, then it would not have been necessary to say that apart from or in addition to
the acquittal the plaintiff, in a suit for malicious prosecution, must prove that the defendant
lacks reasonable and probable cause in prosecuting the plaintiff. A man may be acquitted and
yet there may be a reasonable and probable cause for prosecution. This analysis of the legal
position shows that the probative value of the evidence or the legal conclusions on the evidence
cannot be very relevant in determining whether the accuser has a reasonable and probable cause
in prosecuting the plaintiff. It is not necessary that in order to come to the conclusion that the
accuser has a reasonable and probable cause, the evidence adduced must be commensurate with
the conviction of the accused.

In a criminal trial, benefit of doubt often plays an important part. If some part of the evidence
leans to a conclusion that a man is guilty and if another part of the evidence in the same case

11
Professor Winfield, Law of Torts, 3rd Edition at p. 604.
12
Williams v. Taylor (1829) 6 183.

4
indicates that the man may not be guilty, or if two possible views of a conflicting nature can be
spelt out from the entire facts of the case, the accused gets benefit of doubt. 13

Therefore, the only relevant and material time when a reasonable and probable cause for
prosecution has to be found out is the time when the criminal proceeding is commenced or set
in motion. It is only from this point of view that the evaluation of the evidence in a suit for
malicious prosecution should be made. It is true that the same set of facts may lead to the
conclusion that there is malice as well as lack of reasonable and probable cause. It is also true
that in some cases the existence of malice may be a relevant consideration to determine lack of
reasonable and probable cause and vice versa. But as stated earlier, the two concepts cannot be
held to be identical.

Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the
proceedings are justified. Similarly, the terms "reasonable and probable" are synonymous, and
"Probabilis causa" was a classical Latin expression "Probabilis" means primarily provable and
"Probabilis causa" means a good reason. The defendant is not required to believe that the
accused is guilty, and it is enough if he believes that there is reasonable and probable cause for
prosecution. Therefore, he need only be satisfied that there is a proper case to lay before the
Court. If a person honestly states his complaint to a responsible police officer, who advises him
to prosecute, he will be protected.14The question whether the defendant was the real prosecutor
or informant is to be determined by his conduct before and during the trial. 15

In the case, the High Court discussed the essential element to found a cause of action for
malicious prosecution and then observed that where the criminal prosecution initiated by the
defendant against the plaintiff has ended in acquittal, the suit for malicious prosecution by the
plaintiff would not succeed unless it is further established that the defendant had no reasonable
and probable cause in launching prosecution against the plaintiff and in doing so they were
motivated by malice or their primary purpose was something other than to bring the law into
effect.16

In the case of Nara-Singa Row v. Muthaya Pillai17, it was observed:

13
Bharat Commmerce Industries v. Sunrender Nath Sngh, AIR 1966 Cal 388.
14
Amar Singh v. Smt. Bhagwati, AIR 2001 Raj 1.
15
Periya Goundan v Kuppa Goundan, AIR 1919 Mad 229 (2)) (M); Manikam v. Munuswami, AIR 1916 Mad
666; Rajagopala v. Spencer &.Co. Ltd., 12 Mad LW 87 (O); Shanmugha v. Kandaswami, AIR 1920 Mad 789.
16
Kottan Thazhathu Veettil Krishnan v. Palari Thaivalappil Govindan and Ors., AIR 1989 Ker 83.
17
Nara-Singa Row v. Muthaya Pillai, 26 Mad 362.

5
The only person who can be sued in an action for malicious prosecution is the person who
prosecutes. In this case, though the first defendant may have instituted criminal proceedings
before the police, he certainly did not prosecute the plaintiff. He merely gave information to
the police, and the police, after investigation, appear to have thought fit to prosecute the
plaintiff. The defendant is not responsible for this act, and no action lies against him for
malicious prosecution.

Therefore, in the instant case, it is clear from the facts and arguments advanced that the
defendant did not prosecute Gopal maliciously and did not intend to harm the reputation of the
prosecution as contended by it. Moreover, he misbehaved and abused the defendant, which not
only lowered his prestige, but adversely affected his health also. There is practically no
evidence to impute any malus animus on the part of the defendant, denoting that the defendant
was actuated by ill will or improper and indirect motive. Hence, the defendant cannot be tried
for the offence of malicious prosecution.

6
 PRAYER

In the light of arguments put forth authorities cited, and judicial principles espoused, the

Respondents humbly seek from this Hon’ble Court to pronounce and declare:

1. That the defendant cannot be tried under section 211 of the Indian Penal Code, 1860 for the

offence of malicious prosecution.

Or grant such other relief as the court may deem fit in the light of justice, equity and good

conscience.

Date: Sd/

(Counsel for the Defendant)