RAJIV GANDHI NATIONAL UNIVERSITY OF

LAW , PATIALA, PUNJAB

TOPIC:Wrong Of Malicious Prosecution

SUBMITTED TO- SUBMITTED BY-

Dr.Jaswinder Kaur Pulkit Saxena

(Assistant Professor Of Law) (19066)

 Acknowledgement

I would like to take this opportunity to express my profound gratitude and deep regard to Dr
Jaswinder Kaur (Assistant Professor of Law) for her guidance and valuable feedback and
constant support throughout the duration of project. Her suggestions were of monumental help in
the rough work of my project.

I would also like to express my gratitude to Rajiv Gandhi National University of Law, Patiala for
giving me the topic that enriched my knowledge. I also like to thank the library staff for constant
support.

Lastly I am thankful to my parents and friends for their constant support and coordination in the
completion of the research work.
Introduction to Torts

Law as a body of rules is `essentially concerned with maintenance of social order by regulating
the conduct of individuals in the society. It embodies all those social, political and moral rules of
conduct which formed the genesis of Dharma in the ancient hindu society. However, with the
development of civil societies and evolution of states, the concept of ‘Law’ also underwent a
radical change and now in most legal systems, law includes only those rules which are
recognised and enforceable by the state.

The word tort has been derived from the latin term “tortum”, which means ‘to twist’.It It is
similar to Sanskrit word ‘Jimha’ which was under ancient Hindu law used in the sense of
tortuous or fraudulent conduct . It is a civil wrong committed against someone, in which the
injured party can sue for damages. In personal injury cases, the injured party will attempt to
receive compensation to cover losses due to medical expenses and to pay for damagesIt includes
that conduct which is not straight or lawful, but , on the other hand, twisted, crooked or unlawful.
It is equivalent to the English term ‘wrong’. The branch of law consists of various ‘torts’ or
wrongful acts whereby the wrongdoer violates some legal rights vested in another person. As
crime is a wrongful act, which results from the breach of a duty recognized by criminal law,
similarly, ‘tort’ is a breach of duty recognized under the law of torts.

Characteristics of tort-

It is a civil wrong in which legal right of a person is violated or there is a breach of duty
towards him.

It is different from breach of contract or a breach of trust.

It is redressible by a civil action for damages, and such damages are unliquidated. The
quantum of damages is determined by the court keeping in view the gravity of wrongful act,
circumstances of the case and conduct of the defendant.
MALICE

The term malice is used in two different senses:

1. In legal parlance,it means wilful act done without just cause or excuse and it is known as
‘malice in law’.

2. In much more narrower or popular sense,it means an evil motive ,and the same is known as
‘malice in fact’.

According to the Indian courts malice means an improper or indirect motive i.e. some motive
other than the desire to vindicate public justice or private right.

I- Desire to obtain some collateral advantage:- In Vilayati Begam V Nawal Kishore the
defendant purchased a second hand car from the plaintiff. The defendant got it examined the next
day and did nto find it to his liking. He went!to return the car, but the plaintiff refused to take it
jDack, as he thought that the transactio i was already closed The defendant lodged a police
complaint alleging the plaintiff with cheating. The plaintiff was discharged. In a| suit for
damages for malicious prosecution, the defendant contended that he was not motivated by
malice. It was held that the filing of criminal complaint against the plaintiff was not with an
object of bringing the criminal to the court of justice and the defendant's behaviour amounted to
malice.

II- Prosecution launched with an object to create false defence: In Satyandra Chandra V
Abdul Manin both the parties filed criminal complaints against each other. The defendant was
convicted. But the plaintiff was acquitted on the charge made by the defendant. In a suit for
damages for malicious prosecution, the court found that the complaint of the defendant against
the plaintiff was with an object to save himself from the consequences of his own wrong doing.
The court held that the behaviour of the defendant in making a criminal complaint was actuated
by malice. On similar facts, Nia

matullah J. of the Allahabad High Court in Bans V Hukum Singh observed, " In this
connection malice does not necessarily mean enmity or hatred but any indirect or improper
motive. Prosecuting another person on a groundless charge for the purpose of establishing false
defence in another case is obviously actionable."

MALICE IN LAW

In the technical legal sense ,’malice in law’ does not represent an act done with an improper or
evil motive but simply signifies “a wrongful act done intentionally without just cause or excuse.”

A person who inflicts an injury upon another person in violation of the law is not allowed to say

that he did so with an innocent mind.Malice in law depends upon knowledge.Malice in law is
called as ‘implied malice’.

MALICE IN FACT

‘Malice in fact’ or ‘actual malice’ means an evil motive for wrongful act.When the defendant
does a wrongful act with a feeling of spite,vengeance or ill will,the act is said to be done
‘maliciously’.

Malicious Prosecution
The tort of malicious prosecution is a wrong which causes damage by abuse of the process of
Courts of law by the defendant.A malicious prosecution is defined as a judicial proceeding
instituted by one person against another,from wrongful or improper motive and without a
probable cause to sustain it.It is referred as arising out legal abuse as the person brings
proceedings against other with a guilty or bad intention. Intention is something which turns out
to be essential in malicious prosecution unlike other torts where intention is irrelevant.

According to the Apex Court in the West Bengal State Electricity Board v.s Dilip Kumar Ray
clearly explained two essential elements for constituting malicious prosecution:

1. that no probable cause existed for instituting the prosecution or suit complained of

2. that such prosecution or suit terminated in some way favourably to the defendant therein.
Essentials Of Tort of Malicious Prosecution
a) Prosecution by the defendant

b)Termination of Proceedings in favour of Plaintiff

c)Absence of reasonable and probable cause

d)Presence Of malicious intent

e)The plaintiff suffered damages

1.Prosecution by the defendant

This imperative ingredient requires the proof of two elements,(i)that there was “prosecution”
and (ii) it was instituted by the defendant

(i)Prosecution proceedings against a person in a court of law.A prosecution is there when a

criminal charge is made before a judicial officer or tribunal.

Proceedings before Police is not considered as prosecution

Proceedings before the police administration/authority is not taken under prosecution.To

prosecute is to set the law in motion,and the law is only set in motion by an appeal to some
person clothed with judicial authority in regard to the matter in question.

Proceedings before a quasi-judicial authority

In Kapoor Chand vs Jagdish Chand,the Punjab and Haryana High Court has held that the
proceeding before the Boards of Ayurvedic and Unani System of Medicines ,Punjab amounted to
prosecution.

Proceedings instituted by the defendant

A prosecutor is a man who is actively instrumental in putting the law in force for prosecuting
another.Although criminal proceedings are conducted in the name of the State but for the
purpose of malicious prosecution,a prosecutor is a person who instigates the proceedings.

2.Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the
defendant prosecuted him without reasonable and probable cause. The question relating to want
of reasonable and probable cause in a suit for malicious prosecution should be decided on all
facts before the Court.[10] In the case of Antarajami Sharma v. Padma Bewa,[11]it has been said
that law is settled that in a case of damages for malicious prosecution, onus of proof of absence
of reasonable and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in
ignorance of it. The dismissal of a prosecution or acquittal of the accused does not create any
presumption of the absence of reasonable and probable cause. If a man prefers an indictment
containing several charges, whereof for some there is, and for others there is not, probable cause,
his liability for malicious prosecution is complete.[12]

3.Defendant acted maliciously

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff
is required to prove that the defendant acted maliciously in prosecuting him and not with a mere
intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will
or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such
as to gain a private collateral advantage.

In the case of Bank of India v. Lekshmi Das,[13] the Court reiterated the Indian position that in
malice absence of a probable and reasonable cause must be proved. The proceedings complained
of by the plaintiff must be initiated in a malicious spirit that is from an indirect and improper
motive and not in furtherance of justice.[14] Malice may be inferred upon proof of absence of
honest belief in the accusation and consequent want of reasonable and probable cause for
instituting the prosecution complained of.[15]

It is not necessary that the defendant should be acting maliciously right from the moment the
prosecution was launched. If the prosecutor is innocent in the beginning but becomes malicious
subsequently, an action for malicious prosecution can lie. If during the pendency of criminal
prosecution, the defendant gets positive knowledge of the innocence of the accused, from that
moment onwards the continuance of the prosecution is malicious.[16]

4.Termination of Proceedings in favour of plaintiff

In a suit for damages for malicious prosecution, it is essential to show that the proceedings
complained of terminated in favour of the plaintiff. Termination in favour of the plaintiff does
not mean judicial determination of his innocence; it means absence of judicial determination of
his guilt.[17] Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it
can be any improper purpose which motivates the prosecutor, such as to gain a private collateral
advantage.

No action can be brought when the prosecution or the proceedings are still pending. It is a rule of
law that no one shall be allowed to allege of a still pending suit that it is unjust. [18]

5.Plaintiff suffered damage as a result of the prosecution:-

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff
is required to prove that The plaintiff suffered damage as a result of the prosecution. In a claim
for prosecution, the plaintiff can thus claim damages on the following three counts[19]:-

Damage to the plaintiff’s reputation,

Damage to the plaintiff’s person,
Damage to the plaintiff’s property.

Examples of Successful Malicious Prosecution Lawsuits

Below are some examples of successful malicious prosecution claims. Keep in mind that all five of the
elements listed above must be present for the claim to succeed -- the examples below do not discuss every
element in every case, but they're a good illustration of what might equate to malicious prosecution in the
real world.

 A bank was successfully sued for malicious prosecution after its employees intentionally gave
false information to the public prosecutor about the criminal defendant’s (now the malicious
prosecution plaintiff) supposedly illegal banking activities.
 When a defendant admitted that he did not know who actually stole his property, that admission
proved he had the plaintiff arrested for an improper motive, leading to a successful malicious
prosecution claim.
 When a defendant testified that he had a criminal affidavit filed against the plaintiff simply in
order to collect a debt from the plaintiff, the plaintiff’s malicious prosecution lawsuit was
successful because the defendant used the criminal process for an improper purpose.
 A police officer did not give all of the facts when he obtained an arrest warrant on the plaintiff for
possession of illegal hypodermic needles. When there was no proof that the plaintiff was using
the needles for illegal purposes, the plaintiff successfully sued for malicious prosecution.

Examples of Malicious Prosecution Lawsuits that Failed

  If the plaintiff won the first lawsuit because the statute of limitations passed, or for some other
technical reason that did not prove whether the plaintiff was guilty or innocent, the plaintiff’s
malicious prosecution lawsuit against the defendant will fail.
 If the defendant’s attorney is being sued for malicious prosecution, the attorney is not liable
simply because she thought the case probably would not win. The rule is that no reasonable
attorney (not just the attorney being sued) would believe the case was based on any real facts
showing a legitimate dispute. In other words, thinking a case doesn’t have much chance of
winning is not the same as knowing a case has absolutely no good reason to win.
 Threatening a lawsuit for ulterior purposes is not malicious prosecution because no process has
been actually used or abused. For example, if a defense attorney threatens the plaintiff in a civil
suit with criminal charges in hopes that the plaintiff will drop the civil case, there is no malicious
prosecution.
 Unintentionally leaving information off of an affidavit or warrant, unintentionally giving
inaccurate information to obtain a warrant, or unintentionally giving inaccurate information to a
law enforcement agency will not lead to a successful malicious prosecution case. If the defendant
thought she was starting a criminal or civil process for a legitimate reason, being mistaken about
the facts does not prove an improper purpose. Note that an improper purpose might be proved if
the defendant makes no effort to get accurate facts before starting a civil or criminal process,
especially if there is a good explanation of the defendant’s ulterior motive.

Distinction between Malicious Prosecution and other Torts

In general terms intention is irrelevant in torts whereas it is an essential element in case of
malicious prosecution.The general basis to distinguish between tort

Distinction between Malicious Prosecution and other False Imprisonment

1.Malicious prosecution is wrongfully setting the criminal law in motion but false imprisonment
is wrongfully restraining the personal liberty of the plaintiff.

2.The action of false imprisonment owes its origin to the writ of trespass whereas the history of
malicious prosecution may be traced back to the old writ of conspiracy.

3.The purpose of the tort of false imprisonment is to protect the liberty of a person. The purpose
of the law of malicious prosecution is to check the abuse of legal process.

4.To constitute false imprisonment restraint on the freedom of movement is essential but restraint
on personal liberty is not an essential element of the tort of malicious prosecution.

5.In malicious prosecution must be before a judicial authority but in false imprisonment
restriction on movement is by the defendant or any other person for whose acts he is responsible.
6.In case of malicious prosecution damage must be proved by the plaintiff but in false
imprisonment damage is not an essential element.

7.In malicious prosecution malice is essential element and must be established by the plaintiff
but malice is not essential in an action for false imprisonment.

Distinction between Malicious Prosecution and Defamation

The distinction between malicious prosecution and defamation lies as to their origin, object and
purpose.It can be explained under :

(1) The tort of defamation seeks to protect a person’s right of reputation whereas remedy in the
right of reputation of a person but also his right to life,personal liberty as also his property.

(2) In defamation,the plaintiff has to only show that the false statement made by the defendant
against him has belowered the plaintiff’s reputation in the eyes of right thinking persons of a
society ,but in case of malicious prosecution, the plaintiff, besides proving criminal proceedings
instituted by the defendant against him without any reasonable cause has also to prove certain
other points such as termination of the proceedings in his favour,malice,damge caused to him
etc.

(3) Defamation may be in the form of libel(written) or slander(oral) but malicious prosecution
can never be oral or verbal as institution of criminal proceedings against the plaintiff and their
termination in his favour are essential elements of this tort.

Malicious Civil Proceedings

Unlike malicious criminal prosecution, no action can be brought, as a general rule, in the case of
civil proceedings even though the same are malicious and have been brought without any
reasonable cause. Since an unsuccessful plaintiff in has generally to bear the cost of
litigation,any civil proceedings generally to bear the cost of itthat is considered to be sufficient
deterrent factor which may discourage false civil proceedings. In exceptional cases, however,
where the cost of litigation adequately compensate the defendant, he can sue to recover datthe
loss arising out of such civil proceedings. The examples of the proceedings are-insolvency
proceedings against a businessman or windingup proceedings against a trading company or the
proceedings which rat inarrest or execution against the defendant's property or attachment of his
property.

In C.B. Aggarwal v. P. Krishna Kapoor, it was held that when legal process is abused, it results
in a tort. It was observed:
“It (The legal process) is abused when it is diverted from its true courseso as to serve extortion or
oppression, or to exert pressure so as to achieve an improper end. When it is so abused, it is a
tort. Thus,initiation of proceedings must be abused and has to be for a collateral purpose for
which the law does not provide a relief for such institution.”

The essentials required to be proved in such an action were stated as under in Genu
Ganapati v. Bhalchand Jivraj :

"In order to succeed in establishing malicious abuse of civil proceedings,the plaintiffrequired to

prove a number of ingredients: (1) In the first place, malice must be proved. (2) Secondly, the
plaintiff must allegeand prove that the defendant acted without reasonable and probable cause
and the entire proceedings against him have either terminated inhis favour or the process
complained of has been superseded or discharged. (3) The plaintiff must also prove that such
civil proceedings have interfered with his liberty or property or that such proceedings have
affected or are likely to affect his reputation. For example, if the civil proceedings have resulted
in the arrest of the plaintiff or if they may adversely affect the plaintiff's reputation. The plaintiff
moare in the nature of bankruptcy proceedings or winding up proceeding establish that he has
suffered damage. In the above stated case, A filed a suit against B alleging that B had
maliciously sued A with the improper motive of preventing him from crying out his contract
with another person, C. No malice, on the part of B, could be proved by A. It was, on the other
hand, found that B had originally sued Cin furtherance of his own contractual rights against C,
and it is at a later stage that A was also joined as a defendant along with C because that was
necessary to determine the contractual right of B. B was held not liable for malicious civil
proceedings against A.
Case Studies:

1. In State of Tripura vs.Haradhan Chuwdhury,the plaintiff-respondeat,claimed to be a

2. Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd

In the Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd. The officer of the
respondent corporatin found certain articles missing while preparing inventory and checking up
with the stock register. The plaintiff was prosecuted under sec. 403 of the I.P.C. but was given
the benefit of doubt and hence acquitted. The plaintiff brought an action for malicious
prosecution. The plaintiff could not prove that he had been harassed by the officers. There was
held to be reasonable and propable case for prosecution of the plaintiff and the fact that plaintiff
was not harassed indicated that there was no malice and hence the charge was not held.