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RANCHI
ACKNOWLEDGEMENT
ABSTRACT:
According to Section 2(m) of the Limitation Act 1963, tort means “a civil
wrong which is not exclusively a breach of contract or breach of trust.
Fraser defined tort as “an infringement of a right in rem of a private individual
giving a right of compensation at the suit of the injured party.”
Salmond defined tort as “a civil wrong for which the remedy is a common law
action for unliquidated damages and which is not exclusively the breach of a
contract or the breach of a trust or other merely equitable obligation.”
Thus we can conclude that
1. Tort is a civil wrong. - Tort is a civil wrong and not a criminal
wrong. In civil wrong, the injured party institutes civil proceeding against
wrongdoer. In criminal wrong, State institutes criminal proceedings
against the accused. In civil wrong, main remedy is damages and
injunction. In criminal wrong, main remedy is imprisionment and fine.
ESSENTIALS OF TORT:
1
(1703) 92 ER 126
2
(1410) YB 11 Hen IV
Although the plaintiff in this case has experienced substantial harm, the
defendant's establishment of the school was within his legal rights.
REMEDIES AVAILABLE AFTER TORT IS
COMMITTED:
1. Damages - once harm has been done, it cannot be undone. Damages are
therefore the usual form of remedy for torts committed. Damages are
monetary in nature. The Wrongdoer awards money for the tort that he
committed. There are various types of damages like nominal damages,
contemptuous damages etc.
2. Injunction - A court order that directs the performance of an act or
restrains the conduct or continuation of an act is known as an injunction.
Injunction may be granted or denied by the court at its discretion.
Injunctions are of various kinds- Temporary injunction, perpetual
injunction, prohibitory injunction and mandatory injunction. Example
when remedy injunctions is pleaded- for torts like trespass or nuisance,
generally, plaintiff pleads for injunction.
3. Specific restitution of property -When the plaintiff has been
wrongfully dispossessed of his movable or immovable property, the court
may order that the specific property should be restored back to the
plaintiff.
In most of torts, these are remedies generally available for injured party. In
some specific torts, there are other remedies which are also available. Example-
Abatement of nuisance, in malicious prosecution, a criminal proceeding can be
initiated.
MALICIOUS PROSECUTION:
For example, sometimes in matrimonial cases, when wife files for divorce on
the ground of cruelty and she also files criminal complaint against his husband
and his family under Section 498A even though the husband and his family has
treated him with respect. Another case can be when a business rival files a
lawsuit against you for fraud in order to ruin your company’s reputation.
3
A.I.R. 2007 S.C. 976
ESSENTIALS FOR MALICIOUS PROSECUTION:
A person who initiates any prosecution against a person with malice intention
just to harm the reputation of the other, he is committing an act which is
wrongful and he should have not initiated a prosecution. Hence, there is a
wrongful act on the part of defendant. Hence, first essential is met.
When a malicious prosecution is initiated against any person, his basic right to
life, liberty and equality is violated. There are chances that court may wrongly
convict the person too, which violates his basic human rights. We have often
heard that “100 criminal chut jaaye par ek nirdosh ko saza nahi honi chahiye”
which means that 100 criminals may get acquitted but 1 innocent person should
not be convicted. If an innocent person is wrongly convicted due to malicious
proceeding, it violates the innocent person right to life, liberty and equality
which is given to us by our Constituion. Hence, 2 essentials is also met.
There are three types of remedy available for malicious prosecution victims-
1. Public law remedy-This type of remedy is available when malicious
prosecution is initiated by government officials. In this remedy,
compensation is awarded by courts because of the infringement of their
fundamental rights given by the Constituion. In Ram Lakhan Singh v.
State of UP4, a writ petition under Article 32 was filed. Petitioner was an
IFS officer who rendered services to State of UP and Government of
India for about 35 years till his retirement. In 2003, then CM wanted to
get the Benti Bird Sanctuary denotified by National Board for Wild Life
of which petitioner was present. CM asked petitioner to take necessary
steps for the same but petitioner did not comply with the orders. CM
initiated vigilance enquiry against him and ultimately he was removed
from his post. The Supreme Court awarded him Rs.1000000 as
compensation and disposed the writ petition.
2. Private law remedy- These are the civil law remedies available for
malicious prosecution. In most of the cases, remedy is damages. Law is
settled in a case of damage for malicious prosecution i.e. onus of proof of
absence of reasonable and probable clause rests on plaintiff. The plaintiff
also has to prove other essentials which are prosecution was instituted by
defendant, defendant acted maliciously, the proceedings were terminated
in favour of plaintiff and due to proceedings, and plaintiff suffered actual
damage. In suit for damages for malicious prosecution, the court may
award nominal damage suffered by plaintiff which is cost of advocate
fees, court fees. The court may also award aggravated damage to injured
party for the harm, the malicious prosecution has done to his reputation.
Aggravated damages are compensatory in nature and not punitive in
nature. The court may award exemplary damage. Exemplary damage are
awarded with a view to prevent similar behaviour in the future.
4
(2015) 16 SCC 715
Another remedy is Injunction. Injunction is a legal remedy sought by a
party who believes they are being wrongfully prosecuted or harassed
through legal proceedings without proper cause. An injunction is a court
order that requires a party to do or refrain from doing a specific act. The
rationale behind seeking injunction in malicious prosecution is to stop
malicious proceedings or prevent further harm and seeking apology from
the defendant.
In Ram Lakhan Singh v. State of UP5, a writ petition under Article 32 was
filed. Petitioner was an IFS officer who rendered services to State of UP and
Government of India for about 35 years till his retirement. In 2003, then CM
wanted to get the Benti Bird Sanctuary denotified by National Board for Wild
Life of which petitioner was present. CM asked petitioner to take necessary
steps for the same but petitioner did not comply with the orders. CM initiated
vigilance enquiry against him and ultimately he was removed from his post. The
Supreme Court awarded him Rs.1000000 as compensation and disposed the
writ petition.
In Kapoor Chand v. Jagdish Chand7, the Punjab and Haryana High Court has
held that the proceeding before the Boards of Ayurvedic and Unani System of
Medicines, Punjab amounted to prosecution. The appellant filed a fraudulent
complaint, claiming that the respondent, a licensed Hakim, was illiterate and
had received a fake certificate of Hikmat through unethical methods. The Board
decided that the respondent was, in fact, a qualified Hakim and allowed him to
5
(2015) 16 SCC 715
6
A.I.R. 2003 Del. 413.
7
A.I.R. 1974 P. & H. 215
continue working as one. It was decided that the respondent in a malicious
prosecution case had a right to receive compensation.
In the case of Sova Rani Dutta v. Debabrata Dutta8, the defendant filed a
fraudulent false information report (FIR) against the plaintiff and his sister,
claiming that the plaintiff's ear ring was stolen from her, causing bleeding
damage to her ear. The defendant was aware that the F.I.R. was fabricated, and
since the offense was legally recognized, the police would have to handcuff the
plaintiff. It was held that the defendant was accountable for the plaintiff's
humiliation as a result of his handcuffs and for malicious prosecution.
8
A.I.R. 1991 Cal. 186
CONCLUSION:
Websites:
1. https://www.scconline.com/
2. https://www.legalserviceindia.com/legal/article-2434-malicious-
prosecution.html
3. https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf
4. https://supremoamicus.org/wp-content/uploads/2020/09/A1v20-59.pdf
5. https://home.heinonline.org/