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ANALYSIS GOVERNMENT

Malicious Prosecution: A Deep

Dive Into Abuse of Power by
Police
There are several Supreme Court and high court cases which have
revealed how investigations were pursued in order to frame innocent
persons or subject them to harassment.

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Representative image of police. Photo: PTI
GOVERNMENT LAW RIGHTS 26/MAY/2020
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One of the most agonising ways of police harassment is

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implicating innocent people in false cases. In this article, for
the sake of legal rigour and correctness of my conclusions, I
have based my inferences on cases where the malicious
prosecution of victims was conclusively established by the
Supreme Court or high court. As such, I am not commenting
on the recent spate of arrests made in connection with
various agitations, as there is no judicial pronouncement on
them yet.

Usual methods by which cops abuse their powers of

investigation 

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The legal concept of malicious prosecution has been

discussed at great length by a division bench of the SC in
West Bengal State Electricity Board vs Dilip Kumar Ray
(2006). The Law Commission’s 277th report speaks of
wrongful prosecutions to include malicious prosecutions
and prosecutions instituted without good faith. For the
latter, relying upon the SC’s judgment in Harbhajan Singh
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vs State of Punjab (1965), the law commission said that it
would include a prosecution instituted negligently without
due care and attention also.
In practice, to harass you through false cases, the cops:
Malicious Prosecution: A Deep Dive Into SUPPORT US
Invoke sections of lawAbuse
much in excess
Of Power By Policeof what might LOGIN
have really transpired (such as invoking Section 308
IPC, that is, attempt to commit culpable homicide not
amounting
Support to
Us murder with a punishment of up to seven
years, even as in reality only a scuffle might have taken
place, fit for the non-cognizable Section 323 IPC with a
punishment of up to one year only);
Invoke sections of law the very ingredients of which are
not found in the FIR (such as invoking Section 124A
IPC, that is sedition, for any sloganeering in direct
contravention of Supreme Court judgments like Kedar
Nath Singh vs State of Bihar (1962) and Balwant Singh
and another vs State of Punjab (1995));
Invoke sections of law, which are bogus in the sense
that nothing of that sort might have happened (For
example, the cops can make a complainant falsely claim
that his golden chain was also snatched in the course of
a simple scuffle, thereby invoking robbery or dacoity
also in the charge with a much heavier punishment.);
Invoke Arms Act or Explosives Act by ‘planting’ arms or
explosives on to a person and through those sections
weave the victim into a terrorism charge;
Rope in even those people in a case, who might not
even be present at the place at the time of the incident
(It is quite common in rural land disputes for entire
extended families to be listed as accused even as some
of them might be living thousands of km away at the
time of the incident.); and
Proceed to arrest people immediately even as arrest
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may not be warranted, simply to put him through

public humiliation.
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Arresting people has been one of the most common methods of police
harassment. Credit: Wikimedia Commons

False cases lodged through courts

Many evil-minded people, acting on their own, at the behest

of the police or some political or otherwise influential
person, abuse the provision of Section 156(3) CrPC, which
empowers a magistrate to order the police to register a case
and investigate. In Priyanka Srivastava & Anr vs State of
UP & Ors (2015), a division bench of the SC had
acknowledged the abuse of the provision. This has been
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happening in spite of the fact that in Ajai Malviya vs State of

UP and Ors. (2000) and in a catena of judgments, it has
been held that the magistrate is bound to apply his judicial
mind to the complaint. Malicious Prosecution: A Deep Dive Into SUPPORT US
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Also Read: There Must Be a Price to Pay for Wrongful
Convictions
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How cops misinterpret their powers

Whenever the police frame somebody under false charges,

their stock excuse is that if a complaint is given to them,
they are bound to register a case and investigate. In other
words, they try to project that they are so conscientious that
they have to investigate every single word that is narrated
before them. The law speaks differently, however. In State
Of West Bengal & Ors vs Swapan Kumar Guha & Ors
(1982), a three-judge bench of the SC had emphasized that
there is no such thing as unfettered discretion. Explaining
the often misunderstood Privy Council judgment in the case
of Emperor vs Khwaja Nazir Ahmed (1944), the SC said that
the police cannot investigate an FIR which does not disclose
the commission of a cognizable offence.

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A constitution bench of the SC, in the case of Lalita Kumari

vs Govt. of U.P.& Ors (2013), held that the police is not
liable to launch an investigation in every FIR which is
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mandatorily registered on receiving information relating to

the commission of a cognizable offence. A police officer
can foreclose an FIR before an investigation under Section
157 of the code, if it appears to him that there is no
Malicious Prosecution:
sufficient ground to investigate the same.A Deep Dive Into SUPPORT US
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Coming to their abuse of the powers to arrest, in Joginder
Kumar vs State Of UP (1994), the SC had held that arrest
could not be made by police in a routine manner.
Support Usthe Code of Criminal Procedure
Subsequently,
(Amendment) Act, 2008 also provided that, except under
certain circumstances to be placed on record, instead of
arresting the accused, the police will now be obliged to
issue him a ‘notice of appearance’ for any offence
punishable with imprisonment up to seven years. In Lalita
Kumari, the SC held that while registration of FIR under
Section 154 of the CrPC is mandatory, arrest of the accused
immediately on registration of FIR is not at all mandatory.
Regrettably, all such lofty pronouncements notwithstanding,
police are still using arrest as a major tool of harassment.

The courts acknowledge that police implicate people

In Vinay Tyagi vs Irshad Ali @ Deepak & Ors (2012),

Irshad Ali, an informer for the special cell of the Delhi
Police and the Intelligence Bureau, was falsely implicated in
a criminal case when he did not oblige an unjust demand of
theirs. The CBI filed a closure report in the case. While
acquitting him, a division bench of the SC acknowledged
that investigations could be unfair, tainted or people could
have been falsely implicated.

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In Girja Prasad Sharma and Ors. vs Umashankar Pathak
(1972), a division benchMalicious
of theProsecution:
MP high AcourtDeep Dive
hadInto
found an SUPPORT US
Abuse Of Power
SI guilty of falsely implicating By Police Pathak, an
Umashankar LOGIN
advocate who had staged a hunger strike on the question of
food scarcity in Panna, MP. In Thana Singh vs Central
Bureau of Narcotics (2013), a division bench of the SC had
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also commented upon the plight of under-trial prisoners. In
Babloo Chauhan @ Dabloo vs State Govt. of NCT of Delhi
(2017), the Delhi high court expressed grave concern over
wrongful prosecution and incarceration of innocent persons,
and their acquittal after many years of imprisonment,
highlighting the need for a legislative framework for
providing relief to such persons. In pursuance of this, the
Law Commission of India’s Report No 277, titled ‘Wrongful
Prosecution (Miscarriage of Justice): Legal Remedies’ was
submitted on August 30, 2018.

Saga of horrible misdeeds: A sampling of decided cases 

The most horrifying example of police falsely implicating

people is the case of Adambhai Sulemanbhai Ajmeri & Ors
vs State of Gujarat (2014) pertaining to the Akshardham
temple attack of 2002. The Gujarat police had implicated
six people, of which three were awarded the death penalty,
two life imprisonment and the last five years’ jail by a
POTA court in 2006. In 2014, a division bench of the SC
acquitted them all. From the hangman’s noose to freedom, it
took them nearly 12 years to get justice.

In one of the severest indictments of the police ever, the SC

ripped apart the investigation by the Gujarat police, pointing
out scores of shocking mistakes. The court observed:

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“We intend to express our anguish about the

incompetence with which the investigating agencies
conducted the investigation of the case of such a
grievous nature, involving the integrity and security of
the nation. Instead of booking the real culprits
responsible for taking so many precious lives, the
police caught innocent people and got imposed the
grievous charges against them which resulted in their
conviction and subsequent sentencing.”

The Surat bomb blast had taken place in 1993. In 2014, a

division bench of the SC in Hussein Ghadially vs State of
Gujarat (2014), acquitted all eleven persons who were
charged in 1995 and had been convicted by the TADA court
for 10-20 years in 2008. It took them 19 years to get justice.

Parvez Ahmad Radoo, a Kashmiri research scholar, was

accused of carrying explosives for attacks and declared a
Jaish-e-Muhammad terrorist in 2006. He could get a
discharge in 2013 only. The police appealed this decision,
which the Delhi high court, in State vs Parvez Ahmad
Radoo (2014) dismissed and found glaring loopholes in the
investigation.

Faulting the Delhi Police’s special cell for investigation

done ‘defying logic, prudence and reason’, the Delhi high
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court, in the case of Mohd Iqbal vs State (2013) acquitted

two Kashmiri businessmen accused of conspiring to bomb
the New Delhi railway station in 2006. At least 13 more
such false cases of the Delhi police alone, which were
blasted away in courts, Malicious
are listedProsecution: A Deep in
with details Divemy
Intowork SUPPORT US
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The Delhi police’s special cell has come under scrutiny many times for
wrongful prosecution. Representative image. Credit: Reuters

On January 29, 2010, four youths Dalip, Deepak, Ravinder

and Vikas were arrested by the Jahangirpuri police in Delhi
and charged with offences of robbery and attempt to cause
death or grievous hurt. During the trial, the victim testified
that he had given false testimony against the four at the
behest of a businessman. Acquitting them, the trial court
ordered a compensation of Rs 50,000 to each of them.
While accepting that a serious ‘lapse’ had been committed,
the police opposed the compensation. They went to the high
court and lost. Then they went to SC, which held, “The
people who are framed up are also victims of crime and
hence, the authorities are obligated ADVERTISEMENT
to pay compensation to
them for agony and harassment.”
In the Mecca Masjid bomb blast (2007) case of Hyderabad,
the police had picked upMalicious
Muslim Prosecution:
youngstersA Deepranging
Dive Into from SUPPORT US
paan shop owners, watch Abuse Of Power Byauto
repairers, Policedrivers to a student LOGIN
pursuing Unani medicine, and implicated them in the case.
Later in 2011, following their acquittal, on the
recommendation of the National Commission for Minorities
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(NCM), the state government announced compensation of
Rs 3 lakh each to 16 persons.

Also Read: Explainer: Is No One Guilty in the Mecca

Masjid Blast?

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Can the cops invoke sovereign immunity in their

defence?

A usual plea made the cops is that, the state, being an

abstract body, can do no wrong and the actions of the state
cannot be imbued with any ulterior motive. By an extension
of the argument, it implies that the officers of the state too,
acting on behalf of it, could not be imbued with any ulterior
motive in their acts of commission or omission that turned
out to be wrong.

It is not so. In Circulate The Judgment Amongst … vs State

of Gujarat (2017), the Gujarat high ADVERTISEMENT
court held that the plea
of sovereignty immunity is based on old feudalistic notions
of justice, namely the ‘King can do no wrong’.  This does
not exist in the realm of welfare state and the state, like any
ordinary citizen, is liable for the acts done by its employees.
Similar views were heldMalicious
by theProsecution:
SC in The A Deep DiveofInto
State Rajasthan SUPPORT US
vs Mst. Vidhyawati andAbuse Of Power
Another By Police
(1962) and N. Nagendra LOGIN
Rao & Co. vs. State of A.P. (1994) also.

How hopeful you can be of getting relief through

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Theoretically, the maliciously instituted FIR could be got

quashed from the high court under Section 482 CrPC.
However, in practice, this path is fraught with complexities.
A division bench of the Supreme Court has held in the case
of Som Mittal vs Govt. of Karnataka (2008) that the
exception must be applied only when it is shown that grave
miscarriage of justice would result if the trial is allowed to
proceed, and where the accused would be harassed
unnecessarily if the trial is allowed to linger. Detailed
illustrative examples were given in State of Haryana and
Ors vs Ch. Bhajan Lal and Ors (1990) and by a three-judge
bench in Sundar Babu & Ors vs State of Tamil Nadu (2009).

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Supreme Court. Photo: PTI

Can the errant cops be punished?

Theoretically, yes. In the celebrated judgment in the case of

State of Gujarat vs Kishanbhai (2014), a division bench of
the SC held that for all the wrong reasons, innocent persons
are subjected to suffer the ignominy of criminal prosecution
and to suffer shame and humiliation. The SC ordered that
erring officials must be punished departmentally.

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Perumal vs Janaki (2014) was one of those rare cases where

the SC ordered for the prosecution of the investigating
officer under Section 211 IPC (false charge of offence made
with intent to injure). The Punjab & Haryana high court, in
the case of Harbhajan Singh Bajwa vs Senior
Superintendent of Police (2000) ordered for proceeding
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against the complainants of false FIRs also under Section

182 IPC (false information, with intent to cause public
servant to use his lawful power to the injury of another
person). Unfortunately,Malicious Prosecution:
such cases A Deep Dive Into
are rare. SUPPORT US
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Can a victim of malicious prosecution claim
compensation?

Support
In theory, yes,Us you can claim compensation; in practice, it is
difficult. There are several judicial pronouncements but
there is no explicit provision in the Constitution of India
(that is, no statutory right) for grant of compensation by the
state for the infringement of right to life and personal
liberty. In Smt. Nilabati Behera Alias Lalit … vs State of
Orissa and Ors (1993), a division bench of the SC held that
the defence of sovereign immunity being inapplicable,
award of monetary compensation for contravention of
fundamental rights guaranteed by the Constitution is
justified.

The celebrated judgment in the case of D.K. Basu, Ashok K.

Johri vs State of West Bengal, State of U.P. (1996), the
entire law relating to payment of compensation by the state
to a victim of state excesses was expostulated. Similar
views were held in Rudul Sah vs State of Bihar and Another
(1983), Dr. Rini Johar & Anr. vs State of M.P.& Ors. (2016),
Durga @ Raja vs State of Madhya Pradesh (2018) and
Nandu @ Nandkishore Dheemer vs State of M.P. (2018).

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Unfortunately, it is neither happening nor life is so simple.

In Gopal S/O Ramdas Shetye vs The State of Maharashtra
(2017) and D. Arun vs P.Subramani (2016), the Bombay and
Madras high courts have Malicious Prosecution:
held that A Deepcould
the court Dive Into
not award SUPPORT US
Abuse Of Power
compensation merely because By Police
the prosecution failed to LOGIN
establish the guilt of the accused. It is for the victim to
prove that the prosecution was initiated with an oblique
motive only for the purpose of harassing him.
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One of the most famous cases of compensation awarded is
that of the former ISRO scientist Nambi Narayanan. This
case is a frightening illustration of the tortuous path of
securing justice. In 1994, he was falsely charged with
espionage. The case was investigated by the CBI. He was
discharged by the CJM court in 1996. The state government
ordered a re-investigation. That was also quashed by the SC.
Yet, no action was taken against the erring police officials.
Nambi Narayanan moved the HC and got an order in 2011.
The matter was challenged before a division bench of the
HC, which agreed (in 2015) with the government for not
initiating any action.

Eventually, after a painfully long wait of 22 years, the

victim got justice when the SC in S. Nambi Narayanan vs
Siby Mathews & Others Etc. (2018) awarded him a
compensation of Rs 50 lakh. The SC also directed for the
constitution of a committee headed by a former judge of the
SC to find out ways and means to take appropriate steps
against the erring officials. Nambi Narayanan was then 77
years old —his life, career, savings and honour had been
devastated.

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Former ISRO scientist Nambi Narayanan was “arrested unnecessarily,

harassed and subjected to mental cruelty” in a 1994 espionage case.
Credit: Youtube

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Another landmark judgment of compensation of Rs 5.62

lakh is that of the Delhi high court in the case of Prempal &
Ors. vs The Commissioner of Police & Ors. (2010). Prempal
was falsely implicated by the Delhi police in as many as 18
cases between 1991 and 2007. The court directed the Delhi
police commissioner to compensate the victim as well as
tender a written apology to the victim and his family for
their suffering. The trial court had concluded that the
foisting of false cases and harassment of 15 years had
reduced Prempal to a living corpse.
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Extremely few victims, however, have the resources and the

perseverance to take things to their logical end. Most people
would prefer to thank God when they are acquitted at last,
and blame their fate or karma for the sufferings of the trial.
The Law Commission, Malicious Prosecution:elaborate
therefore, made A Deep Dive Into SUPPORT US
Abuse Of
recommendations for claim andPower By Police
grant of compensation for LOGIN
miscarriage of justice due to police and prosecutorial
misconduct. I am, however, not aware of any substantial
action by the government over that.
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Also Read: CBI Under Modi Ensures the Accused Are

Free And the Investigator is on Trial

Who is responsible for this state of affairs?

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None but the leadership of the Indian Police Service (IPS) is

responsible for the travails of the citizens and the untold
miseries the cops heap upon them. They cannot throw the
blame on junior investigating officers and try to get away. It
is an abject supervisory failure if they cannot prevent their
subordinates from committing horrible atrocities.

The issue is not that the prosecutions failed in these cases;

the issue is that the prosecutions failed because the entire
edifices were maliciously built upon falsehoods. In most of
the decided cases, the courts found entire investigations to
be foul. Worse still, practically none of the officers guilty of
framing them were punished. This isADVERTISEMENT
despite the fact that in
the Dhaula Kuan fake encounter case, the court had held:

“There cannot be any more serious or grave crime than

a police officer framing an innocent citizen in a false
 criminal case. Such tendency in the police officers
Malicious
should not be viewed Prosecution:
or dealt A Deep Dive
with lightly butInto
needs to SUPPORT US
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be curbed with a stern Of Power By Police LOGIN

When it comes to claiming credit for the work of their

subordinates, IPS officers are very happy to garner TV time
Support
and speak in Us
terms of ‘we’, indirectly implying that the
brain was really theirs and the investigating officers merely
followed their orders. It follows that they are, in equal
measure, responsible for all the terrible mistakes that are
subsequently pointed out by the courts. We cannot escape
the conclusion that they are either incompetent, complicit
with their ‘criminal’ subordinates or both.

They cannot take a plea that it is for them to use sections of

law and it is for the courts to see as to which sections really
apply. If everything is to be done by the courts; if all the
mind is to be applied by the courts; why do we need the IPS
leadership in the first place; street cops would do. The
police do not have a licence to commit atrocities and later
claim that they were genuine mistakes or errors of
judgment.

Police officers indulge in malicious prosecution of innocent

citizens for several reasons. They include the following:
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Simple financial corruption (by first implicating

somebody falsely and then dropping his name after
extorting money from him, directly or through
subordinates) or threatening to implicate somebody
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until he coughs up the money;
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Acting as the agents of some private party to harass his
business rivals or whoever for money;
Acting as agents of powerful lobbies (political parties,
Supportorganisations
influential Us or people, etc.) for money or
for currying political favours with them;
To get undeserved praise from the media and the
public, and recognition from the government,
particularly when they claim to arrest terrorists;
To claim a breakthrough in some high-profile case
when none exists;
To lend weight to a certain line taken by powers-that-
be;
To assert their power over the hapless people, that is,
an Adlerian psychology trip of self-aggrandisement;
To dispose of petty informers past their usefulness;
To cover-up extortion, some other sort of exploitation
or some more serious crime like rape, robbery or
murder;
To ‘help out’ colleagues in other parts of the country for
similar reasons;
To increase the powers in their hands, which naturally
accrue to them once they create a paranoia of the
nation being under attack from all sorts of terrorists
and insurgents;
Simple professional ignorance which renders them
incapable of detecting and correcting the mischiefs of
their subordinates, that is, supervisory lapse.

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The path to gaining justice for victims of false cases is arduous, so many
don’t sue for compensation. Representative image. Photo: Pixabay

The serious consequences of framing innocent citizens

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The evil business of foisting false cases entails a greater

consequence for the nation as well. The inability to find,
arrest and prosecute the real culprits of charges of terrorism
means that the culprits remain happily in hiding somewhere
—and would be able to strike again. Thus, framing of
innocent persons, particularly in terror cases, seriously
jeopardises national security.
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Prognosis
Fabrication and frame-ups are not aberrations; they have
become the very soul ofMalicious Prosecution:
policing A Deep Dive Intothe path
now. Lamentably, SUPPORT US
of securing justice is soAbuse Of PowersoByexpensive
tortuous, Police that, in LOGIN
practice, extricating oneself from the evil manipulations of
the police is extremely difficult. The victims are bound to
suffer the most harrowing of experiences for varying lengths
Support Us
of time: illegal detention and torture (both physical and
psychological), incarceration and, of course, an agonising
trial.

They return home to find jobs lost, businesses destroyed;

‘broken’ family members who have suffered the humiliation
and trauma of being associated with ‘terrorists’; children
who had to abandon their studies; and parents who had
passed away in grief and despair, waiting for them to return.

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I do not wish to sound unduly pessimistic but citizens would

do well to be realistic and remember what Dante Alighieri
had seen inscribed at the gates of Hell, “Abandon all hope,
ye who enter here!”

N.C. Asthana, a retired IPS officer, has been DGP Kerala.

Of his 46 books, two, namely Leadership Failure in Police
and Khaki Mein Ye Darinde analyse the ills that plague
police. Views are personal. He tweets @NcAsthana.
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