Curbing malicious prosecutions | The Daily Star
12:00 AM, June 06, 2017 / LAST MODIFIED: 12:00 AM, June 06, 2017

Curbing malicious prosecutions

The object of criminal justice system is to punish the wrongdoer and thereby to ensure justice for the victim. When any person comes to the court of law, it is thought that he has come with a grievance. But the things are not always as thought of. Sometimes criminal proceedings are initiated only to harass the accused person(s).    

In Bangladesh, there are multiple sections in the penal laws to punish persons filing false and frivolous or vexatious cases. But rarely do such provisions are utilised to punish those abusing and misusing the judicial system. Apart from the special laws, there are two specific provisions in the Penal Code 1860, namely section 211 and section 182 under which persons instituting any false criminal case or lodging a false First Information Report (FIR) can be punished.

But in case of these provisions, separate proceedings have to be commenced which will ultimately increase the multiplicity of cases. However, there are chances to punish the persons making the false accusation by remaining within the same proceeding. Here comes the application of section 250 of the Code of Criminal Procedure (CrPC), 1898. As per this section, upon finding the accusation to be false and frivolous, the court may call upon the complainant or informant to pay compensation to the accused followed by an opportunity to show cause as to why he/she should not make the payment as such. The compensation ranges from taka 500 to 1000. In default of payment, he/she may have to suffer simple imprisonment of 30 days. Additionally, the court may order that the person shall also suffer imprisonment up to 6 months and fine up to taka 3000.

Although the compensation is small in amount, use of this provision can send a message to the persons filing false cases that the law is not a tool for abuse in their hands. In M/s Indian Oil Corporation v NEPC India Ltd. & Others (2006) 6 SCC 736, Justice R. V. Raveendran stated that “One positive step that can be taken by the courts to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 of the CrPC more frequently where they discern malice or frivolousness or ulterior motives on the part of the complainant.” This statement was also cited by Justice R. Bhanumathi in a recent case namely, International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) & Ors v Nimra Cerglass Tehnics (P) Ltd & Another decided on 22 September 2015 by the Supreme Court of India. As far as section 250 of CrPC is concerned, it is widely believed that only the Courts of Magistrate can apply this provision.

Now comes the question if the Sessions court can apply this provision or not. In Karimdad v Abul Hossain 40 DLR (1988) 441, the High Court Division held that “Section 250 of the Code of Criminal Procedure empowers only a Magistrate to invoke the said provisions while trying a case by him he finds that the accusations are false and either frivolous or vexatious and the same does not empower an Assistant Sessions Judge” (at para 09). 

Despite having similar provisions in the Indian Code of Criminal Procedure, 1973, the Sessions Courts were allowed to apply this section in India. In State of Rajasthan v Jainudeen Sheikh and Another (Criminal Appeal No. 1085 of 2015 @ SPL (Crl) No. 2623 of 2015) decided on August, 2015, the Court opined that “Section 250 of the Code confers powers on the Magistrate to grant compensation on certain conditions being satisfied. A procedure has been engrafted in the said provision. There are certain cases in which the learned Sessions Judge can grant compensation.” The Court also referred to the case of Daulat Ram v State of Haryana (1996) 11 SCC 711 in this respect. In our country, the case of Karimdad v Abul Hossain was decided in the year 1988. It is high time we should reconsider the matter taking into account the legal developments of Indian Jurisdiction.

In our law, the amount of compensation under section 250 is very trivial, i.e. maximum taka 1000. In India, the amount of compensation is to such amount as the Magistrate is empowered to impose as fine. In Pakistan, the compensation is maximum 25,000 rupees or, if the Magistrate is of third class, 2500 rupees. Considering the changes in other countries, the amount of compensation should be increased in our laws in order to dissuade people from filing false cases or lodging false FIRs. Only if the existing provisions are invoked by the Courts while trying any offence, upon introducing the necessary changes, some innocent persons can be saved from being harassed by the abuse of law.

The Writer is a Lecturer, Department of Law, University of Dhaka.  

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