A case for prosecuting the prosecutors

Regular readers of Moneylife, and others, will recall an article called “Who Will Guard the Guardians?” “Quis custodiet ipsos custodies.” In that piece, we had mentioned that a public prosecutor, though convinced that the complaint filed against our clients was false, was too scared to stop the prosecution. He felt that an enquiry would be instituted against him.

The good news is that our clients, half a dozen, were acquitted, some time back. But they had to attend court 33 times, over six years. One of them was a double law graduate and all of them stood firm against bribes. The complainant, worried about being exposed in court, simply did not turn up for cross-examination. But does their acquittal solve the problem? After all, the accused ranged in ages from 60 to 85 years. Is there any recourse? Yes, there is. It lies in prosecuting the complainant for malicious prosecution.

Did the clients opt for that? No. People are wary of courts. Each of us expects the other to fight for him. We, as a people, want to have our rights handed to us on a platter. And protected by the sweat of others.

You be the judge.

One may well ask why we did not ask our clients to take the matter forward. The truth is, as advocates, we cannot ask people to file cases, even pro bono. But the surprising thing is that, it’s not just the layman who shies away. Even Supreme Court judges act similarly.

Last week, a leading newspaper carried a lead article featuring a retired judge’s complaint, about a corrupt judge, having fallen on deaf ears. While no names are mentioned and a lot of it is hearsay, one fails to understand why the complaining judge himself did not act more decisively when on the bench. The author is a very small man but, faced with such a situation, his choice would have been to resign. It’s no great shakes to leave the bench.

But there are other cases, too, where judges show more spunk. A common tactic to avoid an unfavourable order is to ask for another judge to be assigned to the case. It’s not easy. Cogent reasons need to be given. More often than not, if the judge has an interest in the case, however minor, he recuses himself. But what of outright accusations?

Recently, if one read between the lines, one of the parties in court, obviously fearing the worst, wanted a change of scene. Rather stupidly, it accused a judge of corruption, hoping that the judge would give up the matter. This judge, fortunately, was made of sterner stuff and refused to budge asking the complainant to seek relief further up the hierarchy. The judge said the case would go on till orders came from above. The complainant had to apologise; but we hope it is not the end of the matter.

At Moneylife seminars, we have often stressed the fact that too many cases are filed by the crooked. They seek the court’s backing for their nefarious activities. They clog the system with frivolous litigation. They have the money to spend. The other side is dragged to court and peeled alive of all he has. Even the shirt on his back. Can nothing be done? As stated above, the solution lies in a counterattack for either frivolous litigation or malicious prosecution. The process requires the court’s permission; but it can be procured. Once the perpetrators realise that filing false complaints can lead them into hot waters, very hot waters with hefty fines, the pressure on the courts will drop. And justice will be delivered faster.

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected]