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Report No. 277

(i) institutes criminal proceedings against such person; or

(ii) falsely charges him of having committed an offence, knowing that there is no just or lawful ground for such proceedings or charge. Phrased generally, this section is applicable to anyone who commits an offence thereunder - public or a public servant alike. In one of the early judicial pronouncements, section 211, IPC was interpreted to be specifically applicable to investigating agencies including the police when they bring a false charge of an offence with an intent to injure.96

4.53 The essence of section 211, IPC contained in the words "with intent to cause injury to any person, institutes any criminal proceedings knowing that there is no just or lawful ground" has been held to be parallel to the foundation for an action for malicious prosecution - without any reasonable or probable cause. The expression 'reasonable and probable cause' has been defined as the honest belief in the guilt of the accused based upon a full conviction, founded upon existence of circumstances, which would reasonably lead any ordinary prudent and cautious man to the conclusion that the person charged was probably guilty of the crime imputed.97

4.54 While invoking section 211, IPC what needs to be established is that the person making the statement constituting the charge, did so, with the intention and object of setting the criminal law in motion against the person against whom such statement is directed.98

4.55 In an instance of prosecutorial misconduct, where false evidence lead to wrongful conviction of an accused under section 363, 366 and 376 IPC, the Court directed the authorities to register a case against the prosecutor under section 211, IPC.99 A false report by a head constable to superiors, leading to prosecution of an accused who was later acquitted, made the constable liable under section 211, IPC.100 On the other hand, in a case where the report by the police officer was found to be false by the Magistrate after hearing the evidence, but not resulting in criminal proceedings against the accused, the police officer was held not to be liable under section 211, IPC;101 thereby emphasising the element of 'institution of criminal proceedings' for establishing an offence under section 211, IPC. However, subsequently in another case, interpreting the expression "institutes or causes to be instituted any criminal proceeding", the Court held that just the laying of information before a Magistrate constitutes institution of a criminal proceeding.102 Similarly, providing information to a police officer which he has power to investigate and/or causing the officer to investigate the information amounts to institution of criminal proceedings.103

4.56 Distinguishing the expression "instituting criminal proceedings" from "falsely charge any person with having committed an offence"104, the Supreme Court in Hari Das v. State of West Bengal105, held that the scope of section 211 is wide enough to include both. The expression 'falsely charges any person' as used in section 211, IPC means a false accusation, and there is no necessity of this false accusation being made in connection with a criminal proceeding.106 False charge must be made to a court or to an officer who has the power to investigate, send it for trial, who is in a position to get the other person punished.107

4.57 In addition to the intention to cause injury, another important requirement for proving an offence under section 211, IPC is that the accused should have known that there is 'no just and lawful ground' for the proceeding or the charge. It has been held that it is not enough that the person making the charge acted in bad faith, without due care of inquiry or maliciously or that he did not believe the charge to be true. Recklessness in acting upon information without scrutinising the sources, malice towards the person charged are all relevant evidence but the ultimate test under section 211, IPC is that the accused knew that there was no just or lawful ground for the proceedings; and the same must be proved.108

4.58 In Santosh Singh v. Izhar Hussan,109 the Supreme Court looking into section 211 on one hand, and sections 191 and 192 on the other, noted that the two are not intended to overlap, with proceedings under each optional to the other.

4.59 The offences described in the above-discussed provisions of Chapter IX and XI, IPC - public servant disobeying law, framing incorrect document, giving false evidence, fabricating false evidence, falsely charge a person of an offence - more often than not underscore the wrongful investigations, prosecutions, proceedings which are the subject of this report; but to make an offence under these sections there needs to be proven an element of mens rea (knowledge, intention) on the part of the accused thereunder.

Mens rea in these cases is not only difficult to establish or prove in a court of law but also very often may not even be there for these cases of wrongful convictions, preceded by or entailing tainted investigations or other police and prosecutorial misconducts, also result from lack of due care, or negligence or recklessness on the part of the police or investigating agency and/ or prosecutors. Further, institution of criminal proceedings against a police officer/public servant is also subject to the procedural safeguards such as the requirement of Government sanction under section 197, CrPC (discussed in detail later in this Chapter). (c) Case law

4.60 The aforesaid is evident from the caselaw, discussed hereafter, where the accused persons were wrongfully charged/convicted to be exonerated later on grounds of lapses and deficiencies in investigation; of the evidence submitted by the police and the prosecution being false, tampered with, fabricated, or was without any legal sanction; or of the prosecution's case being unreliable.

4.61 In State v. Mohd. Naushad & Ors. (the 1996 Lajpat Nagar Bombing case),110 the Delhi High Court in its order noted that the police showed casualness, and that there were grave lapses on the part of the police - not recording the statement of witnesses support its case, complete absence of diary entries to corroborate the movements of the police - "all betray(ing) a slipshod approach." The Court further noted that the flaw is in the understanding and implementation of the law by the police force. Highlighting prosecutorial misconduct, the Court noted that there was a flaw in the presumption of guilt, a violation of the principle that the burden of proof is on the prosecution- to prove the accused person's guilt and not on the accused to prove his innocence.

4.62 Similarly, in Adambhai Sulemanbhai Ajmeri & Ors. (supra), in an appeal against conviction order based primarily on the confessions of the accused, the Supreme Court highlighted various peculiarities and deficiencies in the method of investigation- the nature of confessions, the absence of independent evidence etc. The Apex Court specifically noted that there was fabrication of evidence, an attempt on the part of the investigating agency to fabricate and make a case against the accused person since they had not been able to solve the case even after almost a year of the incidence.

4.63 In the case of Mohd. Aamir Khan, who was wrongfully incarcerated for 14 years as the main accused in multiple terror cases, there appeared a uniform noting in all the cases against him with regard to the lack of incriminating evidence connecting the accused with the explosions. The Delhi High Court in one of the said cases Mohd. Aamir Khan v. State,111 noted the above and setting aside the conviction, held that the prosecution has "failed to adduce any evidence to connect the accused with charges framed much less prove them".

4.64 One of the gravest instances of miscarriage of justice resulting in an extremely long wrongful incarceration was in the case of Mohd. Jalees Ansari & Ors. v. Central Bureau of Investigation.112 The accused Mohammad Nissarudin was taken in to police custody in the year 1994, then booked for a bomb blast in Hyderabad (October 1993), later booked under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) for bomb blasts in five trains in Mumbai (December 1993). Subsequently, after a 'confession,' Nissarudin was sent to a prison in Ajmer, where he spent the next 23 years- during which time, in 2005 a TADA court at Ajmer convicted him and gave him life sentence.

In 2016, the matter reached the Supreme Court, where the Apex court, overturning the TADA court's decision, ruled that the confession (which was taken in police custody) and formed the basis of the conviction did not have legal sanction and was inadmissible. And, after suffering through 23 long years of wrongful incarceration, Nissarudin was exonerated of all charges.

4.65 A report by the Jamia Teachers' Solidarity Association highlights more of such cases where the accused persons were charged with offences of planning and causing bomb blasts, criminal conspiracy, collection of arms, training of terrorists etc., but later acquitted for the reasons of shoddy investigation and flimsy evidence, or that the prosecution's case was doubtful and lacked credibility, or that there were procedural lapses and the investigating agency violated established legal norms, lacking transparency.113 The report also noted a certain pattern of procedural lapses and misconducts in investigations and prosecutions/proceedings of the cases discussed therein:

(i) Illegal detention, where the time and date of the actual 'picking up' of the accused, as revealed during the trial, is earlier than that alleged in the police's case.

(ii) Secret information, often central to the police's case leading them to the accused cannot be verified or disclosed.

(iii) Public and independent witnesses are rarely joined in the actual operation, even in cases where the accused were apprehended in public places with people around.

(iv) Private vehicles used in the operation doing away with the need of maintaining logs, making it difficult to verify the information about the operation.

(v) Delayed seizure memos - not made at the time of actual seizure - made later in the police station, often found to be in the same handwriting and ink as the FIR.114

Wrongful Prosecution (Miscarriage of Justice) - Legal Remedies Back

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