Memorial for Petitioners

IN THE COURT OF CIVIL JUDGE (SR. DIVISION),YAMUNANGAR

PETITION UNDER SECTION 6 R/W SECTION 15 OF THE CIVIL PROCEDURE

CODE,1908

Case No. _____/ 2016

PETITIONERS DEFENDANT

RAMESH KUMAR VERSUS HARSIH YADAV

& RAJAN MEHTA

BEFORE SUBMISSION TO
CIVIL COURT

MEMORAMDUMON BEHALF OF THE PETITIONERS

ii
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TABLE OF CONTENTS

1. LIST OF ABBREVIATION
ii

2. INDEX OF AUTHORITIES
iii

Books
iii

Cases
iii

Statutes
iii

3. STATEMENT OF JURISDICTION
iv

4. STATEMENT OF FACTS
v

5. ARGUMENTS PRESENTED
vi

6. SUMMARY OF ARGUMENTS
vii

7. ARGUMENTS ADVANCED
1-9

8. PRAYER
10
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LIST OF ABBREVIATIONS

1. AIR All India

Reporter
2. Anr. Another
3. CPC Civil
Procedure Code
4. HC High Court
5. IPC Indian Penal
Code
6. Ors. Others
7. Pg. Page
8. SC Supreme
Court
9. SHO Station
House Offier
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INDEX OF AUTHORITIES

STATUTES REFFERED:
1. Civil Procedure Code, 1908

CASES REFFERED:
1. Bradshaw v Waterlow & Sons 1915 3 KB 527
2. Bromage v. Prosser 1825 C 247
3. Harbhajan Singh v. State of Punjab AIR 97, 1965 SCR (3)
235
4. Heeralal v. Bandhu 1889 9 AWN 189
5. Mirza v. Bhagwati Parshad 1895 1 OB 786
6. Mohammad Amin v Jogendra Kumar AIR 1947 PC 108
7. Muhammad Saddiq v. Panna Lal (1903) 26 All. 220
8. Osumanuyawa Yaw Ewna v. Nana Sue Ofori Atta AIR 1930
PC 260
9. Pannalal v. Shrikrishna ILR 1955 MB 189
10. Rookes v. Bernard 1964 AC 1129
11. Savile v. Roberts (1698) 1 Ld Rayam 374
12. Venu v. Coorya Narayan1881 ILR 6 Bom 376

BOOKS REFFERED:
1. Dhirajlal & Ratanlal, The Law of Torts, Wadhwa &
Company, Nagpur
2. Bangia R.L., Law of Torts, Allahabad Law Agency,
Faridabad
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STATEMENT OF JURISDICTION
The present Petition is filed before the Hon’ble Court under section 6 r/w
section 15 of the Civil Procedure Code, 1908

That section 6 of CPC states that:

Pecuniary jurisdiction: Save in so far as is otherwise expressly

provided, nothing herein contained shall operate to give any Court
jurisdiction over suits the amount or value of the subject-matter of
which exceeds the pecuniary limits (if any) of its ordinary
jurisdiction.

That the section 15 of the CPC states that:

“Court in which suits to be instituted: Every suit shall be

instituted in the Court of the lowest grade competent to try it.”
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STATEMENT OF FACTS

Ramesh Kumar and his friend Rajan Mehta are both Human Rights
Activists. ,staying in a village Yamunanagar.

21' December, 2015: At about 7 pm, Ramesh and Rajan while on their
evening walk; saw a dead body of a girl lying near by the road. They both
immediately report about the murder of that girl to Police Station of
Village Yamunanagar. The SHO of the Police Station Mr. Harish Yadav
was a person against whom Ramesh and Rajan held many rallies and also
filed writs in the court against Police Department especially against Mr.
Harish Yadav SHO of Police Station of Village Yamunanagar. Ramesh and
Rajan gave every detail about the incident in Police station.Investigation
was started by investigation officer.

25th December, 2015 Mr. Harish Yadav ararrested Ramesh and Rajan on
the charge of murder of the girl whose dead body was found by Ramesh
and Rajan. SHO had personal Knowledge about the innocence of two
accused but because of SHO's personal grudges for Ramesh and Rajan he
want to teach a lesson by falsely implicating them.

Aftermath

1. Both accused immediately got bail by Session Court. On filling of the

Challan under Section 173 of Cr. P.C. Session Judge discharged both the
accused because no relevant evidence was placed on record by
Investigating Officer against them.

2. But even after getting discharged by Session Court, they had to suffer a
kind of social boycott from the society with their prospective marriages
were broken and an adverse effect on their business.

3. So, they were in a very bad situation just because of SHO's false
allegation and imprisonment resulting into malicious prosecution. They
filed a suit for damages against SHO. The defense contented , no notice is
severed upon the SHO under section 80 CPC.
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ARGUMENTS PRESENTED

A. Whether notice under Section 80 of CIVIL

PROCEDURE CODE,1908 is required or not?

B. Whether or not the defendant is liable for

MALICIOUS PROSECUTION under civil law?
C. Whether the defendant is liable to pay EXEMPLARY
DAMAGES or not?
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SUMMARY OF ARGUMENTS

A. Whether notice under Section 80 of CIVIL

PROCEDURE CODE,1908 is required or not?

That it is most humbly submitted that the notice under section 80 of

Civil Procedure Code is not required in the present case as the
essentials of section 80 are not being fulfilled. Further it is
submitted that it is stated in the section that the public officer must
act in his official capacity in order to invoke the requirement of
notice under Section 80 of the CPC. But, in the present case the
SHO acted in personal capacity and due to his personal grudges he
framed false charges against the petitioners even after knowing that
the petitioners were innocent.

B. Whether or not the defendant is liable for

MALICIOUS PROSECUTION under civil law?

It is submitted that in the action for malicious prosecution plaintiff

must prove that he was prosecuted by the defendant,the proceeding
complained of terminated in favor of the plaintiff if from their
nature they were capable of so terminating, the prosecution was
instituted against him without any reasonable or probable cause,the
prosecution as instituted with a malicious intention, that is, not with
the mere intention of carrying the law into effect, but with an
intent, which was wrongful in point of fact and he has suffered
damage to his reputation or to the safety of person, or to the
security of his property.That it is most humbly submitted before
this Hon’ble court that as all the elements of mailicious prosection
are being satisfied in the above case hence the defendant be made
liable for the same.
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C. Whether the defendant is liable to pay EXEMPLARY
DAMAGES or not?

It is submitted that exemplary or punitive damages are assessed to

penalize the wrongdoer or to make an example to others. As a
general matter, the purpose of awarding punitive or exemplary
damages, which are imposed in addition to sums to compensate the
injured party for actual loss, is to punish and deter blameworthy
conduct. It is submitted that the defendant is liable to pay exemplary
damages to the petitioners
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ARGUMENTS ADVANCED

A. Whether notice under Section 80 of the CIVIL

PROCEDURE CODE is required or not?
That it is most humbly submitted that the notice under section 80 of
Civil Procedure Code is not required in the present case.

That section 80 of CPC states as follows:

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.
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(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 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 sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff
had been substantially indicated.
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That it is most humbly submitted that no notice was required to be
served to the SHO under section 80 of the CPC as the essentials of
section 80 are not being fulfilled.

That it is most humbly submitted before this Hon’ble Court that it is

stated in the section that the public officer must act in his official
capacity and good faith in order to invoke the requirement of notice
under Section 80 of the CPC. But, in the present case the SHO acted in
personal capacity and due to his personal grudges he framed false
charges against the petitioners with malafide intention even after
knowing that the petitioners were innocent. The same was upheld by
the court in Muhammad Saddiq v. Panna Lal 1, “Notice under Section
80, Civil P.C., was not necessary as the officer had not acted in good
faith in pursuance of the law, but had taken advantage of his position
as a public officer to commit illegal and tortious acts maliciously and
without cause.”

That it is most humbly submitted that the public officer in question did
not act in good faith and hence the defense of section 80 cannot be
availed in this case at hand.

It is submitted before this Hon’ble Court that good faith is defined in

Section 522 of IPC. general clauses act defines good faith 3 as “a thing
shall be deemed to be done in "good faith" where it is in fact done
honesty, whether it is done negligently or not.

It was held by the Court in Harbhajan Singh v. State of Punjab4,

"Thus, it would be clear that in deciding whether an accused person
acted in good faith, it is not possible to lay down any rigid rule or test.
It would be a question to be considered on the facts and circumstances
of each case...what is the nature of the imputation made, under what
circumstances did it come to be made; what is the status of the person
1
(1903) 26 All. 220
2
“Good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due
care and attention.
3
Section 3(22) general clauses act
4
AIR 97, 1965 SCR (3) 235
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who makes the imputation; was there any malice in his mind when he
made the said imputation; did he make any enquiry before he made it;
are there reasons to accept his story that he acted with due care and
attention and was satisfied that the imputation was true? These and
other considerations would be relevant in deciding the plea of good
faith made by an accused person who claims the benefit of the Ninth
Exception".

Thus it is submitted that in the present case it is clear from the facts
that the SHO had knowledge that the petitioners were innocent and
only because of his personal grudges and malafide intention, he
implicated false charges against them. Furthermore it is pertinent to
mention the fact that the petitioners are law abiding citizens and in
good faith they informed the police at earliest after finding a dead body
lying nearby the road while they were doing their evening walk.

B. Whether the defendant is liable for Malicious

Prosecution under Civil Law or not?

That it is most humbly submitted that the defendant is liable for

malicious prosecution under the civil law and thus he is liable to pay
compensation and damages. It is submitted that malicious prosecution
in Civil law as been defined as Malicious institution against another of
unsuccessful criminal, bankruptcy or liquidation proceedings, without
reasonable or probable cause.5

That it is submitted that for the convenience the definition of malicious

prosecution has been bifurcated to constitute the following essentials
5
Ratanlal & Dhirajlal, The Law of Torts, Wadhwa & Company, Nagpur pp 309
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which has been upheld in the case of Mohammad Amin v Jogendra
Kumar6:

“In the action for malicious prosecution plaintiff must prove:

1. that he was prosecuted by the defendant

2. that the proceeding complained of terminated in favor of the
plaintiff if from their nature they were capable of so
terminating
3. that the prosecution was instituted against him without any
reasonable or probable cause.
4. That the prosecution as instituted with a malicious intention,
that is, not with the mere intention of carrying the law into
effect, but with an intent, which was wrongful in point of fact.
5. That he has suffered damage to his reputation or to the safety
of person, or to the security of his property.”

That it is most humbly submitted that the essentials as provided for

malicious prosecution are being fulfilled in the present case at hand.
This contention is based on the following points of arguments:

2.1 THAT THE PETITIONERS WERE PROSECUTED BY THE

DEFENDANT

That it is most humbly submitted that in the celebrated judgment of

Pannalal v. Shrikrishna7,”The requirement of prosecution by the
defendant involves two elements, first that the plaintiff was prosecuted
and secondly, that the defendant was the prosecutor. To prosecute is to
to set the law in motion, which is done by an appeal to some person,
clothed with judicial authority in regards to that matter. The gist of the
action is that the defendants set the Magistrate in motion.”

6
AIR 1947 PC 108
7
ILR 1955 MB 189
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It is submitted that in this particular case at hand this element of
malicious prosecution is being fulfilled. In the ambit of the present
case, firstly, the petitioners were prosecuted. A trial was conducted on
them under section 302 of the IPC for committing murder of the girl
which they found dead on the road during their evening walk. It is
pertinent to mention that when the defendant himself is the person on
whose complaint the court takes cognizance against the plaintiff, there
is no difficulty in holding that the defendant is the prosecutor. Second
element is also being fulfilled as the defendant initiated the criminal
proceeding against the plaintiff with a malifide intention. The SHO
framed false charges in the challan sheet against the petitioners and
they were implicated falsely.

2.2 THAT THE PROCEEDING TERMINATED IN THE FAVOR OF

THE PETITIONERS

That it is humbly submitted before this Hon’ble court that in the case
of Osumanuyawa Yaw Ewna v. Nana Sue Ofori Atta 8 the court held
that “It is essential to show that the proceeding alleged to be instituted
has terminated in favor of the plaintiff, if, from its nature, it be capable
of such a termination.” Furthermore in the case of Venu v. Coorya
Narayan9 the court observed that it is enough if the prosecution has
been discontinued, or if the accused has been acquitted or discharged.

That it is most humbly submitted that on the complaint of SHO the

charges were framed against the petitioners under section 302 of IPC
which were false in nature and were against the provisions of criminal
jurisprudence. The learned trial court considered the matter at hand and
a trial on the charge of murder was held against the petitioner. It is
imperative to state in this regard that the learned considered the facts of
the case and observed in this regard that there was no evidence on

8
AIR 1930 PC 260
9
1881 ILR 6 Bom 376
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record so as to prove the petitioner guilty. Thus the learned trial court
passed an order acquitting the accused and upheld that they be
discharged of the charge falsely implicated against them. It is
submitted that this essential of malicious prosecution is fulfilled in the
ambit of the present case as the proceeding against the petitioners were
terminated.

2.3 THAT THERE WAS NO REASONABLE OR PROBABLE

CAUSE

That it is most humbly submitted that Reasonable and probable cause

means that there are sufficient grounds for thinking that the accused
was probably guilty but not that the prosecutor necessarily believes in
the probability of conviction; he is only concerned with the question
whether there is case fit to be tried. Objectively there must be
reasonable and probable cause for the prosecution, and the prosecutor
must not disbelieve in his case, even though he relies on legal advice. 10
furthermore, in the case of Bradshaw v Waterlow & Sons11, “if the
charge is found to be false, the onus would be on the defendant to
show that he has reasonable and sufficient cause for making it.”

That it is most humbly submitted before this Hon’ble Court that in this
particular case in hand there was no probable cause for the defendant
to frame charges against the petitioners . the defendant deliberately and
maliciously framed charges under section 302 of IPC against the
petitioner as he wanted to undertake vengeance from the petitioners
due to his personal grudges. It is very evident from the facts that during
their evening walk the petitioners saw a dead body on the road and
since they were public-spirited person they reported the matter
immediately to the conserved authorities without ay hesitation. The
defendant did not have any evidence against them and implicated them
due to his personal malice. It is very reasonable to state here that a
person cannot be implicated just because of the reason that he finds a

10
Mirza v. Bhagwati Parshad 1895 1 OB 786
11
1915 3 KB 527
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corpse lying on a road. This would be against the spirit of law and
humanity. Thus it is contented before this Hon’ble court that the
defendant without any evidence framed charged against the petitioners
who were innocent just to harass them. The learned trial court while
conducting the trial observed this fact that there was no evidence on
record to convict the petitioners. This fact is berry relevant in this
regard hence this essential of malicious prosecution is being fulfilled in
this present case.

2.4 THAT THERE WAS MALICIOUS AND UNLAWFUL

INTENTION

That it is humbly submitted before this Hon’ble Court that if when the
prosecutor instituted criminal proceedings he knew he had no
reasonable grounds for the steps he was taking. The definition of
malice given by Bayley J., in Bromage v. Prosser12, viz., “wrongful act
done intentionally without just cause or excuse;” will distinctly apply,
and no further proof of malice would be required; but he really
believed he has such reasonable, although infact he has it not, and was
actuated not by such belief, but also by personal spite or desire to bring
about the imprisonment of, or other harm to, the accused, or to
accomplish some other sinister object of his own, that personal enmity
or sinister motive would be quiet sufficient to establish the malice
required by law to complete a cause of action. Furthermore, in
Heeralal v. Bandhu13, the court held that, the bringing of the charge
false to the knowledge of the prosecutor imports in law malice
sufficient to support a similar action.

That it is most humbly submitted that the SHO in question had a

malicious intention to get the petitioners falsely implicated. It is
pertinent to mention that the petitioners were social activist by
profession and had conducted rallies and filled writs against the police
department especially against SHO for not following his official duties.

12
1825 C 247
13
1889 9 AWN 189
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Due to this fact, the SHO had grudges against the petitioners and he
wanted to take revenge no matter what came. One day, when the
petitioners came to him to inform about the unfortunate event, the
defendant got the opportunity which he was looking for. He misused
his power and position in the police department to take revenge from
the petitioners. The defendant framed false charges against the
petitioners. Thus It is contented that the defendant had a malifide
intention to get the petitioners convicted for an offence which they had
no committed and for which there was no slightest evidence on record.

2.5 THAT THE PETITIONER SUFFERED DAMAGE TO HIS

REPUTATION:

That it is most humbly submitted before this Hon’ble Court that

In Savile v. Roberts14, HOLT C.J., opined that there are three sorts of
damages anyone of which would be sufficient to support an action for
malicious prosecution:

1. The damage to a man’s fame, as where the matter whereof he is

accused is scandalous;
2. The damage done to the person as where a man is put in
danger of losing his life, limb or liberty;
3. The damage to a man’s property, as where he is forced to
expend his money in necessary charges, to acquit himself of
crime of which he is accused

Furthermore, the damage must also be the reasonable and probable

result of malicious prosecution.

That it is most humbly submitted that the above mentioned ingredients

are being fulfilled and the petitioners suffered irreparable damages to
his reputation. It is imperative to state here that being social activist,
the reputation in the society was of prime importance for the
14
(1698) 1 Ld Rayam 374
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petitioners. Due to the false charges, the petitioners were met with
suspicious eyes by the society members and had to face social boycott
and thus suffered irreparable damage to their reputation Furthermore,
their prospective marriage was broken and their business suffered
adversely even though the petitioners had been discharged.

That it is most humbly submitted before this Hon’ble court that as all
the elements of malicious prosecution are being satisfied in the above
case hence the defendant be made liable for the same.

B. Whether the defendant is liable to pay

EXEMPLARY DAMAGES or not?

That it is most humbly submitted that the defendant being a public

officer is liable to pay exemplary damages to the petitioner.

According to Black's Law Dictionary (8th edition), “exemplary or

punitive damages are assessed to penalize the wrongdoer or to make
an example to others. As a general matter, the purpose of awarding
punitive or exemplary damages, which are imposed in addition to sums
to compensate the injured party for actual loss, is to punish and deter
blameworthy conduct.” Such damages are not compensatory but are
awarded to punish the defendant and to deter him and others from
similar behavior in the future.15

15
Re:Destruction Of Public&Pvt. ... vs State Of A.P. & Ors.
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In Rookes v. Bernard16, it was held that Exemplary damages can only
be awarded in three classes of cases;

1. where there is oppressive, arbitrary or unconstitutional action

by servants of the Government or;
2. where the defendants conduct has been calculated by him to
make a profit for himself which may well exceed the
compensation payable to the claimant or ;
3. where such damages are provided by statute.

That it is most humbly submitted that the defendant is liable to pay

exemplary damages as being a public servant the defendant has a
primary duty to serve the public and not harass them by filing false
cases against them just for his personal benefit or to take revenge. It is
pertinent to mention in this regard that the claim for exemplary
damages should be maintainable in this regard so as to set an example
for the public servants in future to avoid frivolous actions by misusing
their power and authority. It will create a deterrent effect in future for
such police officials. In the present case at hand, the defendant just
wanted to take revenge from the petitioners by all means. Thus he
acted against his official duty and rather than working for public
welfare he engaged himself in an unlawful activity.

Prayer for Relief

Wherefore in the light of the contentions raised, arguments advanced

and authorities cited, Counsel for the petitioners humbly pray &
implore before this Hon’ble Court that it may be pleased to adjudge
and declare that:

 That the defendant may be held guilty for malicious

prosecution.
 That the damages of Rs.18,00,000 be awarded to the petitioners
for mental agony, harassment and injury to reputation caused
by the actions of the defendant.

16
1964 AC 1129
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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.

And for this act of kindness the Petitioners shall as duty bound ever
humbly pray.

Respectfully submitted,

…………...….……...……………………

(Counsel for the Petitioners)