IN THE COURT OF HONBLE CIVIL JUDGE, Sr.
DIVISION
IN THE MATTER OF:
Mr. RAMESH KUMAR PETITIONER NO. 1
Mr. RAJAN MEHTA PETITIONER NO. 2
VERSUS
Mr. HARISH YADAVDEFENDANT
Civil Suit filed for Damages for Malicious Prosecution
ON SUBMISSION TO THE COURT
WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT
TABLE OF CONTENTS
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INDEX OF AUTHORITIES................................................................................3
STATEMENT OF JURISDICTION......................................................................6
STATEMENT OF FACTS.......................................................................................................7
ISSUES
RAISED...................................................................................................................8
SUMMARY OF ARGUMENTS............................................................................................9
ARGUMENTS ADVANCED...............................................................................................11
1. WHETHER THE PETITIONER HAD SERVED A NOTICE UNDER SECTION 80
C.P.C TO THE RESPONDENT?.........................................................................................11
2. WHETHER THE DEFENDANT WAS PERFORMING DUTY IN DISCHARGE OF
OBLIGATIONS IMPOSED BY LAW?............................................................................. .19
3. WHETHER THE PETITONERS CHARGE OF MALICIOUS PROSECUTION
AGAINST THE DEFENDANT IS SUSTAINABLE OR NOT?................................... 21
PRAYER............................................................................................................................ 24
INDEX OF REFERENCES
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STATUTES REFFERED:
1. The Code of Civil Procedure, 1908
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872
CASES REFFERED:
Kasturi Lal v. State of UP, 1965 AIR 1039
N. V. Ashar v. State of Gujarat, 1984 (2) GLR 1333
State of A.P. v. Pioneer Builders, AIR 2007 SC 113
State of Madras v. ChitturiVenkata, AIR 1957 AP 675
Ghanshyam Das v. Dominion of India AIR 1984 SC 100
State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
Nirmal Chand v. Union of India, AIR 1966 SC 1068
KanhayalalOsawl v. Govt. of India, AIR 1974 Guj 37
State of Madras v. C.P. Agencies
SamanthalalKoti v. PothuriSubbiah AIR 1918 Mad 62
State of Maharastra v. Chander Kant (1977) 1 SCC 257 at p.26
Prem Lala Nahata v. Chandi Prasad Sikaria, AIR 2007 SC 1247
Subramanian Swamy v. Manmohan Singhand Anr,(2012)3SCC 64
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BOOKS REFFERED:
1. C.K. Takwani, Civil Procedure, Eastern Book Company.
2. Ratan Lal &Dhiraj Lal, The Code of Criminal Procedure,
LexisNexis.
3. Batuk Lal, The Law of Evidence, Central Law Agency.
1.
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LIST OF ABBREVIATIONS
1. CPC
2. CrPC
3. AIR
4. HC
5. SC
6. GLR
7. NOC
8. Pg.
9. Ors.
10.AP.
11. UP.
12.Anr.
13.SHO
Code of Civil Procedure
Code of Criminal Procedure
All India Reporter
High Court
Supreme Court
Gujarat Law Reporter
Notes on Case
Page
Others
Andhra Pradesh
Uttar Pradesh
Another
Station House Officer
STATEMENT OF JURISDICTION
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The present civil suit has been filed by the plaintiff for damages under the head
of malicious prosecution. The respondent accept the jurisdiction of this Hon'ble
court and dont refute the same.
STATEMENT OF FACTS
It is respectfully showeth:
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Petitioners are human rights activists.
The two friends had held many rallies and also filed writs in the court
against the police department and especially against the SHO
Yamunanagar.
On 21st December 2015 at about 7 pm, the petitioners while walking saw
a dead body of a girl.
They immediately reported about the murder to the SHO Yamunanagar
Police Station.
After investigation on 25th December 2015 Petitioners were arrested.
Petitioners were discharged by the Sessions Court due to lack of
evidence on the record.
Petitioners have filed a suit to claim damages from the Defendant for the
injury to their reputation they have suffered on account of malicious
prosecution by the Defendant.
ISSUES RAISED
1. WHETHER THE PETITIONER HAD SERVED A NOTICE UNDER
SECTION 80 C.P.C TO THE RESPONDENT?
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A. That in absence of any notice or leave of the court under section 80 C.P.C no
suit against a public officer can be instituted.
B. That the chargesheet against the petitioner was filed by the respondent in his
official capacity
2. WHETHER THE DEFENDANT WAS PERFORMING DUTY IN
DISCHARGE OF OBLIGATIONS IMPOSED BY LAW?
A. That the defendant was acting in discharge of his obligations imposed by the
law.
3. WHETHER THE PETITONERS CHARGE OF MALICIOUS
PROSECUTION AGAINST THE DEFENDANT IS SUSTAINABLE OR
NOT?
A. That the defendants acts in no way gives rise to malicious prosecution
SUMMARY OF ARGUEMENTS
1. WHETHER THE PETITIONER HAD SERVED A NOTICE
UNDER SECTION 80 C.P.C TO THE RESPONDENT?
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That it is important to bring to the notice of this court that the petitioner has not
served any notice under section 80 C.P.C which is a mandatory rule of
procedure for a suit to be instituted against the Government or against a public
officer.
2. WHETHER THE DEFENDANT WAS PERFORMING DUTY IN
DISCHARGE OF OBLIGATIONS IMPOSED BY LAW?
That is humbly submitted before this court that the tort committed while
performing duty in discharge of obligations imposed by law has been
considered to be a defence in India. The exemption of the state from liability to
pay damages for tortious act of the servants, where a government servant in
carrying out or purporting to carry out duties imposed by the law has been
justified on the ground that in such cases, the government servant purports to
carry out duties imposed by the letter of the law and is controlled by the law and
not by the government.
3. WHETHER THE PETITONERS CHARGE OF MALICIOUS
PROSECUTION AGAINST THE DEFENDANT IS SUSTAINABLE
OR NOT?
That it is humbly submitted before this court that the acts of the defendant were
in conformity with its legal obligations of protecting safety and security to the
society at large and further aimed at bringing the accused to justice. The present
suit for damages on account of malicious prosecution is not at all sustainable
because there is the mandatory notice required to be served on a public officer
under section 80 cpc which was not conformed and there is no such case of
malicious prosecution.Further the petitioners have only been discharged by the
court on account of lack of evidence on record and not acquitted and there is
still scope of trial if new evidence is found out.
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ARGUMENTS ADVANCED
1. WHETHER THE PETITIONER HAD SERVED A NOTICE UNDER SECTION 80 C.P.C TO THE
RESPONDENT?
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That it is important to bring to the notice of this court that the petitioner has not served any
notice under section 80 C.P.C which is a mandatory rule of procedure for a suit to be
instituted against the Government or against a public officer.
A. That in absence of any notice or leave of the court under section 80 C.P.C no suit
against a public officer can be instituted.
80. Notice- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted
against the Government (including the Government of the State of Jammu and Kashmir) or
against a public officer in respect of any act purporting to be done by such public officer in
his official capacity, until the expiration of two months next after notice in writing has been
delivered to, or left at the office of
(a) In the case of a suit against the Central Government, except where it relates to a railway,
a Secretary to that Government;
(b) In the case of a suit against the Central Government where it relates to a railway, the
General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the
Chief Secretary to that Government or any other officer authorised by that Government in
this behalf;
(c) In the case of a suit against any other State Government, a Secretary to that Government
or the Collector of the district;
And, in the case of a public officer, delivered to him or left at his office, stating the cause of
action, the name, description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the
Government of the State of Jammu and Kashmir) or any public officer in respect of any act
purporting to be done by such public officer in his official capacity, may be instituted , with
the leave of the court, without serving any notice as required by sub-section (1); but the court
shall not grant relief in the suit, whether interim or otherwise, except after giving to the
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government or public officer, as the case may be, a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, which no urgent or
immediate relief need be granted in the suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).
(3) No suit instituted against the government or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity shall be dismissed merely
by reason of any error or defect in the notice referred to in sub-section (1), if in such notice
(a) the name, description and the residence of the plaintiff had been so given as to enable the
appropriate authority or the public officer to identify the person serving the notice and such
notice had been delivered or left at the office of the appropriate authority specified in subsection (1), and
(b) The cause of action and the relief claimed by the plaintiff had been substantially
indicated.
This section is explicit and mandatory and admits of no implications or
exceptions.1 The language of this section is imperative and absolutely debars a
court from entertaining a suit instituted without compliance with its provisions.
If the provisions of the section are not complied with, the plaint must be
rejected under O. 7, r. 11(d)2.
In a suit filed by an individual against an individual, the plaintiff may not give a
notice to the defendant before filing the suit. But, where a suit fixed is filed by
an individual against the government or against a public officer, a notice thereof
1Ghanshyam Das v. Dominion of India AIR 1984 SC 1004
2Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow
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is mandatory. The plaint shall contain a statement that such notice has been
served. Section 80 provides for requirement of notice prior to institution of suit
against the government or against a public officer in respect of act done or
purporting to be done by him in his official capacity. It prohibits institution of a
suit against the government or a public officer until expiration of two months
after delivery of notice to the officers named in the provision. However, where
an immediate relief is sought, the court may allow institution of suit against the
government or any public officer without serving such notice. But, in case, the
court shall not grant any relief in the suit without hearing the defendant. If upon
hearing the parties the court is satisfied that no immediate relief need be granted
in the suit, the plaint shall be returned. The plaint so returned may be presented
after complying with the requirement of notice.
Section 80 enumerates two types of cases i) suits against the government; and
ii) suits against public officers in respect of acts done or purporting to be done
by such public officers in their official capacity. Regarding the former, the
notice is required to be given in all cases. Regarding the latter, notice is
necessary only when the suit is in respect of any act Purporting to be done by
the public officer in the discharge of his duty, not in any other cases. 3 Although
it has been said that substantive rights are to be determined in accordance with
the provision of the Constitution4, Section 80 of the Code is not a procedural
provision, but a substantive one.5
The term public officer is defined in section 2(17) of the code. The definition
says that every judge, every member of an all-India service, every
3State of Maharashtra v. Chander Kant, (1977) 1 SCC 257
4Nirmal Chand v. Union of India, AIR 1966 SC 1068
5KanhayalalOsawl v. Govt. of India, AIR 1974 Guj 37
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commissioned or gazetted officer in the military, naval or air forces of the
union, and every officer of a court of justice and of government who performs
the duty as mentioned, is a public officer. Even the police officer has been
included within the term of public officer.
In State of Madras v. C.P. Agencies6, the object of Section 80 is manifestly to
give the Government or the public officer sufficient notice of the case which is
proposed to be brought against it or him so that it or he may consider the
position and decide for itself or himself whether the claim of the plaintiff should
be accepted or resisted. In order to enable the Government or the public officer
to arrive at a decision it is necessary that it or he should be informed of the
nature of the suit proposed to be filed against it or him and the facts on which
the claim is founded and the precise reliefs asked for.
The section is no doubt imperative; failure to serve notice complying with the
requirements of the statute will entail dismissal of the suit. But the notice must
be reasonably construed. Any unimportant error or defect cannot be permitted to
be treated as an excuse for defeating a just claim. In considering whether the
provisions of the statute are complied with the court must take into
consideration the following matters in each case:
(1) Whether the name, description and residence of the plaintiff are given so as
to enable the authorities to identify the person serving the notice;
(2) Whether the cause of action and the relief which the plaintiff claims are set
out with sufficient particularity;
(3) Whether a notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section; and
6AIR 1960 SC 1309
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(4) Whether the suit is instituted after the expiration of two months next after
notice has been served, and the plaint contains a statement that such a notice has
been delivered or left.
The effect of S. 80 is clearly to impose a bar against the institution of a suit
against the Government or a public officer in respect of any act purported to be
done by him in his official capacity until the expiration of two months next after
the notice in writing has been delivered to or left at the office of the Secretary to
Government or Collector of concerned district and in the case of a public officer
delivered to him or left at his office, stating the particulars enumerated in the
last part of sub-section (1) of the section.
The government, unlike private parties is expected to consider the matter
objectively and dispassionately and after obtaining proper legal advice, it can
take an appropriate decision in the public interest within a period of two months
allowed by the section by saving public time and money and without driving a
person to avoid litigation. The legislative intent behind the provision is that
public money should not be wasted for unnecessary litigation.
In State of A.P v. Pioneer Builders7, the apex court held that service of notice is
imperative except where urgent and immediate relief is to be granted by the
court in which case a suit against the government or a public officer may be
instituted in the absence of notice but with the leave of the court. Such leave is a
condition precedent and must precede the institution of a suit without serving
notice. Though no procedure is specified as to how the leave is to be sought for
a given, yet the order granting the leave must indicate the ground pleaded and
application of mind thereon.
7 AIR 2007 SC 113
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The fact sheet is absolutely silent about any such leave of the court, therefore
moving forward under the assumption that leave was granted by the court would
be a prejudicial to the defendants cause. So it is imperative upon this court to
notice that there was no leave granted by the court within the meaning of
section 80(2) and therefore this suit against the public officer shall be dismissed.
Further in Prem Lata Nahata v. Chandi Prasad Sikaria8, the supreme court held
that in a case not covered by section 80(2), it is provided in section 80(1) that
no suit shall be substituted. This is therefore a bar to institution of the suit and
that is why courts have taken a view that in a case where notice under section 80
C.P.C is mandatory, if the averments in the plaint indicate the absence of notice,
the plaint is liable to be rejected.
B. That the chargesheet against the petitioner was filed by the
respondent in his official capacity
8 AIR 2007 SC 1247
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A public servant can only be said to act or purport to act in the discharge of his
official duty, if his act is such as to lie within the scope of his official duty. If the
act was one such as is ordinarily done by the officer in the course of his official
duties, and he considers himself to be acting as a public officer and desired
other persons to consider that he was so acting, the act clearly purports to be
done in his official capacity. Two conditions are clearly necessary for the
section to apply: (1) he must be a public officer; and (2) he must purport to act
in his official capacity.
The expression any act to be done by such public officer in his official
capacity takes within its sweep acts as also illegal omission. Likewise, it also
covers past as well as future acts. All acts done or which could have been done
under the colour or guise by an officer in the ordinary course of his official
duties would be included therein9. If the allegations in the plaint relate to an act
which was purported to be done by a public officer in his official capacity
means that the said act must be such that it could be done ordinarily by a
person in the ordinary course of his official duties. It does not cover acts outside
the sphere of his duties.10There must be something in the very nature of the act
complained of which attaches to the official character of the person doing it.11
The test to be applied in these cases is that whether the officer can reasonably
claim protection for the acts that he commits or that it was performed by him
purely in his private or individual capacity. In the case of him claiming
9SamanthalalKoti v. PothuriSubbiah AIR 1918 Mad 62
10Ibid.
11State of Maharastra v. Chander Kant (1977) 1 SCC 257 at p.260
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protection a notice under section 80 is necessary, and in case it was performed
by him purely in his private or individual capacity it is not.12
A public officer may, without such a notice, be made a defendant in a suit in
which no act of his done in the course of his official duties is in question but he
is made a party for some reason or the other. Notice is necessary only if the act
was done in official capacity whether or not in good faith.
As said above, a public servant can only be said to purport to act in the
discharge of his official duty, if his act is such as to lie within the scope of his
official duty. A kick administered by him is not an act which lies within the
sphere of his official duty.
Similarly in State of Madras v. Chitturi Venkata13, if allegations in the plaint
relate to an act purporting to be done by a public officer, whatever the relief
prayed for, the section is attracted and a notice is mandatory
Again, an act does not mean any particular specific or instantaneous act of a
person but denotes a series of acts. Moreover, the words acts purporting to be
done apply to misfeasance as well as non-feasance.
12Amalgamated Electricity co.(Belagaum) Ltd. v Municipal committee Ajmer AIR 1969 SC 227
13 AIR 1957 AP 675
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2. WHETHER THE DEFENDANT WAS PERFORMING DUTY IN
DISCHARGE OF OBLIGATIONS IMPOSED BY LAW?
That is humbly submitted before this court that the tort committed while
performing duty in discharge of obligations imposed by law has been considered to
be a defence in India.
A. That the defendant was acting in discharge of his obligations imposed by the
law.
The exemption of the state from liability to pay damages for tortious act of the
servants, where a government servant is carrying out or purporting to carry out
duties imposed by the law has been justified on the ground that in such cases, the
government servant purports to carry out duties imposed by the letter of the law
and is controlled by the law and not by the government.
The supreme court in Kasturi Lal v. State of U.P14 held that if tortious act is
committed by a public servant and it gives rise to a claim for damages, the question
to ask is- was the tortious act committed by the public servant to discharge of
statutory functions which are preferable to, and ultimately based on, the delegation
of the sovereign powers of the state of such public servants? If the answer is
affirmative, the action for damages for loss caused by such tortious act will not lie.
14 AIR 1962 SC 933
MEMORIAL ON BEHALF OF THE RESPONDENT
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Also in Subramanian Swamy v. Manmohan Singh and Anr,15Public servants are
treated as a special class of persons enjoying the protection from liability so that
they can perform their duties without fear and favour and without threats of
malicious prosecution.
In the present case it is mandatory to note that the acts done by SHO Harish Yadav
are done by him in his official capacity as a police officer. As a police officer, it is
mandated by law for him to take immediate notice of offence and frame a
chargesheet is the offence is made out prima facie.
15(2012) 3 SCC 64
MEMORIAL ON BEHALF OF THE RESPONDENT
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3.
WHETHER
THE
PETITIONERS
CHARGES
OF MALLICIOUS
PROSECUTION AGAINST THE DEFENDANT IS SUSTAINABLE OR
NOT?
That it is humbly submitted before this court that the acts of the defendant were in
conformity with its legal obligations of protecting safety and security to the society
at large and further aimed at bringing the accused to justice.
A. That the defendants act in no way gives rises to malicious prosecution.
A malicious prosecution is defined as a judicial proceeding instituted by one
person against another, from wrongful or improper motive and without probable
cause to sustain it. It is said to be a prosecution on some charge of crime which is
wilful, wanton, or reckless or against the prosecutors sense of duty and right, or
for ends he knows or is bound to know are wrong and against the dictates of public
policy.
Mala fide is a psychological factor to allege but very difficult to prove. The burden
of proving mala fides is on the person making the allegations, and burden is very
heavy. Neither express nor implied malice can be inferred or assumed. It is for the
person seeking to invalidate an order to establish the charge of bad faith. The
reason is that there is presumption in favour of the administration that it always
exercises its power bonafide and in good faith. Seriousness of allegations demands
proof of a high order and credibility.
The Supreme Court in E.P. Royappa v. Tamil Nadu, brought out difficulties
inherent in proving mala fides. The factors which are important in proof of mala
fides: (i) Direct evidence (e.g. documents, tape recordings etc.), (ii) Course of
MEMORIAL ON BEHALF OF THE RESPONDENT
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events, (iii) Public utterance of the authority, (iv) Deliberate ignoring of facts by
the authority and (v) Failure to file affidavits denying the allegations of mala fides.
However, if the allegations are of wild nature, there is no need of controverting
allegations. Mala fides may also be inferred from the authority ignoring apparent
facts either deliberately or sheer avoidance.
The Supreme Court laid out two essential elements for constituting a malicious
prosecution, namely1. That no probable cause existed for instituting the prosecution or suit complained
off, and
2. That such prosecution or suit terminated in some way favourably to the
defendant therein.
In the present case at hand both the conditions laid out by the Supreme Court do
not fulfil. The SHO who was investigating the case could immediately as the
petitioners approached him have arrested them, however the SHO went through the
case and satisfied himself from all the angles after four days of investigation and
held that prima facie there is a strong case against the petitioners.
There were great number of chances of the petitioners absconding the law and the
SHO chose not to wait, which was a wise move in the circumstances of the case as
there have been a number of cases in the past where the culprits themselves bring
forth the crime before the police to provide themselves with a veil of innocence.
Further the case against the petitioners has not ended into an acquittal but merely a
discharge of the case. Discharge does not mean that the accused has not committed
the offence; it just means that there is not enough evidence to proceed with the
MEMORIAL ON BEHALF OF THE RESPONDENT
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trial. Most importantly, if any evidence is gathered later on, the accused may be
tried again.
And further the Supreme Court in Mohinder Singh v. the secretary, ministry of
irrigation & power, govt. of India,16 held that mere acquittal of the plaintiff is no
evidence of malice and further it cannot be termed as malicious prosecution.
And lastly there is only information about SHOs previous encounters with the
petitioner in the fact sheet but it nowhere proves that at the time of framing charges
the SHO was governed by his anger and hate and not by his faculties binding him
to make the most wise decisions within his lawful authority.
161975 P.L.R. (d) 150
MEMORIAL ON BEHALF OF THE RESPONDENT
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PRAYER
Wherefore in light of issues raised, arguments advanced, reasons given and
authorities cited, it is humbly prayed before this Honble Court to hold, adjudge
and declare:
That the petition for damages on account of malicious prosecution filed by
the petitioners be dismissed.
That the respondent be paid litigation expenses up to the amount of Rs
20,000 on account of harassment and agony faced by them.
The Court may in its discretion grant any provisional relief and also make any such
order as it may deem fit in terms of equity, justice and due conscience
Counsel for Defendant
MEMORIAL ON BEHALF OF THE RESPONDENT
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