LAW OF TORTS

A COMPARATIVE STUDY
ON
MALICIOUS PROSECUTION

SUBMITTED TO –
ASSISTANT PROFESSOR ARUNA B. VENKAT

SUBMITTED BY –
PRANJAL GAUTAM
Year I, Semester I
2019-5LLB-34

1
 TABLE OF CONTENTS

INTRODUCTION…………………………………………………………….3
MALICIOUS PROSECUTION……………………………………………….4
DEFENCES……………………………………………………………………5
POSITION IN INDIA………………………………………………………….6
POSITION IN THE UNITED KINGDOM…………………………………...7-8
COMPARATIVE ANALYSIS……………………………………………...9-10
CONCLUSION………………………………………………………………...11

2
 INTRODUCTION

With the consistent advancement of different lawful frameworks over the globe, the harmful
components have appeared themselves as cases setting precedent.
The tort of malicious prosecution1 is one such tort that has spread its underlying foundations
into the lawful frameworks and has on occasion made it appear as though it isn't the legitimate
framework that is sufficient to manage issues of such size.
Despite the fact that the ill-disposed strategy of the court hearing requests that realities be
delivered alongside defense which in the legitimate sense would be considered as enough for
supporting the reason. Regardless of whether after investigation of such certainties the seat or
the judge expels the case, quantifiable harm has just been finished.
As society rebuffs an individual more than the law, it is all the more clearly found in issues of
this nature where the casualty of such suit (litigant in unique suit) faces belittling in each circle.
In”spite of the fact that throughout the years the courts of UK have concocted cures and
different arrangements, courts in India are as yet bustling managing a build-up of such cases,
in light of which any solid, just”as a viable way, has neglected to emerge itself in the lawful
framework.

1
Ratanlal Ranchhoddas., Thakore, D. and Singh, G. (2013). Ratanlal & Dhirajlal's the Law of torts. 26th ed.
Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur.

3
 MALICIOUS PROSECUTION

“Malicious prosecution is malicious institution against another of unsuccessful criminal2, or

bankruptcy3, or liquidation proceedings4, without reasonable or probable cause. This tort
balances two competing principles, namely the freedom that every person should have in
bringing criminals to justice and the need for restraining false accusations against innocent
persons5.”
The foundation of the action lies in the abuse of the process of the court by wrongfully setting
the law in motion and it is designed to discourage the perversion of the machinery of justice
for an improper purpose.6
In an action for malicious prosecution plaintiff must prove7 :
1) That he was prosecuted by the defendant8
2) That the proceedings complained of terminated in favour of the plaintiff if from their
nature they were capable of so terminating.9
3) That the prosecution was instituted against him without any reasonable or probable
cause.10
4) That the prosecution was instituted with a malicious intention, that is, not with the
mere intention of carrying the law into effect, but with an intention which was
wrongful in point of fact11
5) That he has suffered damage to his reputation or to the safety of the person, or to the
safety of his property.12
A fictional scenario might be illustrated in order to understand the concept better13 -
Tanya's” ex-husband, Ralph, finds she is dating his bookkeeper Jeff, he turns furious. Ralph
seeks revenge on Jeff by accusing that Jeff stole money from his record, and files a civil lawsuit.
At trial, almost a year later, it is immediately confirmed that there is basically no proof that Jeff
is liable for any bad behaviour, and that Ralph recorded the case out of malevolence. The case
is dismissed. Lamentably, the allegations and the case caused Jeff to lose his”employment.
Jeff”then records a claim against Ralph for malicious prosecution. At the point when the
majority of the realities have been demonstrated, the judge finds for Jeff, and grants him an

2
Abrath v. The North Eastern Rly. Co., (1886) 0
3
Johnson v. Emerson, (1871)
4
Quartz Hill Gold Mining Company v. Eyre (1883)
5
Glinski v. Mclever (1862)
6
Mohammad Amin v. Jogendra Kumar Banerji, AIR 1947 PC 108
7
Supra Note 5
8
Ratanlal Ranchhoddas., Thakore, D. and Singh, G. (2013). Ratanlal & Dhirajlal's the Law of torts. 26th ed.
Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur
9
Ibid
10
Ibid
11
Ibid
12
Ibid
13
Casebriefs.com. (2019). Derry v. Peek - Case Brief for Law Students | Casebriefs. [online] Available at:
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/misrepresentation/derry-v-peek/ [Accessed 20
Sep. 2019].

4
entire year of lost wages, adding up to $54,000, everything of his lawyer's charges, in the
measure of $8,500, and $10,000 for the harm to his expert”notoriety.
In”this case of malicious prosecution, the court likewise orders Ralph to pay another $10,000
in punitive damages to punish him for deliberately arranging and making a move to destroy
Ralph's notoriety, making him lose his business. In this case of harms for malicious
prosecution, the transgressor was requested to pay an aggregate”of $82,500.

5
 DEFENCES

State and government laws award what is known as “prosecutorial immunity14” to investigators
and other legal authorities. This guarantees examiners can carry out their responsibilities
without always confronting malicious prosecution claims.15 As far as possible to the assurances
given by prosecutorial immunity, in any case. In the event that a litigant in a criminal case that
is at last rejected can demonstrate that the investigator had acted outside his typical extent of
expert in seeking after the case, the examiner may not be secured by prosecutorial immunity.
“When an offended party is fruitful for his situation, harms for malicious prosecution might be
generous. If the offended party has had the option to demonstrate money related harms, for
example, lost wages, or loss of business, lawyer's charges paid with regards to the case, and
different costs, he might be granted everything demonstrated. Furthermore, the offended party
might be granted pay for harm to his notoriety, and torment and enduring. Contingent upon
the conditions, the court may even arrange the litigant to pay punitive damages16.”

14
Prosecutorial immunity is the absolute immunity that prosecutors have in initiating a prosecution and
presenting the state's case.
15
Ibid
16
Ratanlal Ranchhoddas., Thakore, D. and Singh, G. (2013). Ratanlal & Dhirajlal's the Law of torts. 26th ed.
Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur.

6
 POSITION IN INDIA

There are arrangements in India for managing malicious procedures of just criminal suits and
an inquirer, for the most part, has no cures if such procedures were initiated under any
thoughtful law other than”any Municipality Act. As has been found in England instances of
such a nature are given a more noteworthy level of significance, the accumulation of cases and
different downsides, for example, ways those are ill-conceived as well as draw a measurable
level of joke on”the lawful framework itself. Such cases haul for a considerable length of time
and some of the time decades and the trial of the inquirer ends up becoming graver over the
long haul and he/she is left without a cure, be that as it may, must bear the costs in support of
suit.
The English”lawful framework has been adaptable enough according to the changing occasions
yet the traditionalist methodology of Indian officials hasn't generally worked out for the open
great as there are still no solutions for such affable cases which malign the individual and one
can guarantee for harms when he/she can show such harms, which, according to the court
would be called as uncommon harm which ought to be causes of the griped”demonstration.
The”reason for prosecution is somewhat not quite the same as that in England, it is esteemed
to be a prosecution when it has arrived at a phase where measurable harm hosts been caused to
the gathering safeguarding that suit. For a point by point knowledge into the idea, we”looked
into a judgment by the Calcutta High court which later proceeded to be referred to while
choosing numerous different cases.
In Mohammed Amin vs Jogendra Kumar Bannerji17, agreement”was entered upon by the
litigant and the main respondent available to be purchased of a couple of items to an
organization which was to be shaped by the principal respondent. All the while, the primary
respondent consolidated a second respondent for doing the buy”and half of the concurred
merchandise was moved by the appealing party. Later it was found that the respondent had
broken the particulars of the understanding which was entered”upon, because of which the
appealing party would not respect it and didn't move the rest of the products. Because of which
the subsequent respondent acting in his own ability and”for the benefit of the other respondent
recorded a suit under sections 405, 420, and 422 of the Indian Penal Code and requested that
he be liable to such charges. The justice held a request in an open court gone to by the appealing
party and expelled the case expressing there is”no duping submitted for this situation and
rupture which exists is of absolutely polite nature. The appealing party presented a suit for
malicious establishment of criminal procedures against him, to which the judge avowed yet
watched the seat must adhere to a prior judgment”by The High Court of Judicature of Calcutta
in Golap Jan vs Bholanath Khettry18 where it was seen that it can't be considered as prosecution
if there is no issue of any procedures or”where the grievance was expelled by the endless supply
of the protest, referring to the above point of reference the case of the appealing party was
rejected which the seat saw to be properly”chosen.19

17
(1947) 49 BOMLR 584
18
(1911) ILR 38 Cal 880
19
Ibid

7
 POSITION IN THE UNITED KINGDOM

In a milestone 2016 choice, Willers v Joyce20, the U.K. Incomparable Court affirmed in 2016
that an individual can sue another for malevolent indictment in common procedures. Ruler
Toulson, conveying the lead judgment, expressed "it appears to be intuitively unreasonable for
an individual to endure damage because of the malignant indictment of legitimate procedures
for which there is no sensible ground, but then not be qualified for remuneration for the damage
purposefully brought about by the individual in charge of inciting it.
The new tort offers a solution for respondents who have endured harms because of procedures
brought against them vindictively and without sensible grounds.
One of the criteria is that procedures more likely than not been brought without sensible and
reasonable justification. It is not necessarily the case that the respondent more likely than not
accepted that the procedures would succeed. It is sufficient that there was a legitimate case to
lay under the watchful eye of the court. Malevolence is an extra necessity, which is discrete
from sensible and reasonable justification, in spite of the fact that they may interlace. The basic
component here is that the procedures established by the litigant were not a genuine utilization
of the court's procedure. Inquirers have an overwhelming weight to release in setting up the
presence of these components. All things considered, a petitioner who brings unwarranted
procedures for noxious reasons will confront the danger of extra endorses, past the standard
danger of accepting an antagonistic cost grant.
In perceiving the presence of the malignant common indictment tort, the court considered
various approach issues, including the hazard another tort may incite a surge of unmeritorious
cases, or prevent those with legitimate cases from making a move. The larger part at last
established that none of these strategy concerns were adequately solid to uproot the need to
repay an individual for damage endured because of malignant indictment.
In Quartz Hill Consolidated Gold Mining Co v Eyre21, the facts were that the litigant, an
investor in the offended party organization and moved toward a specialist to sell the offers
possessed by him for which the deed was appropriately marked by him and gave over to the
said representatives. The offers couldn't be sold for certain reasons and the respondent was
educated regarding the equivalent, be that as it may, the papers of exchange did not come back
to him. In view of this reality, he documented a suit subsequent to hanging tight for around 10
days for wrapping up the organization and referred to reasons of ineptitude. The respondent
was a proprietor of 100 portions of the firm every one whose worth was 1 pound, yet the
valuation at the hour of the closeout of the offers tumbled to roughly 1/3 of it. The litigant
asserted in the London Gazette that the organization was offering properties in Colorado,
United States of America for considerably more than their real valuation so as to profit by it
and added an advancement in the market. It was likewise asserted that their outline dishonestly
guaranteed that the mining adventures they were setting available to be purchased were
excessively profitable and would be a wise venture for somebody.

20
Willers v. Joyce (2016)
21
(1883) 11 QBD 674

8
This being a suit of common nature the cures were restricted, and the court held from the start
that no harms could be granted and refuted the case remembering these parameters right off
the bat, there was no proof which could indicate uncommon harms also, there was no proof of
perniciousness with respect to the examiner and thirdly, no activity of this sort could lie under
any such conditions. Be that as it may, a suit would most likely lie under a case asserting a case
which was presented improperly however the previously mentioned parameters were not one
of those. It was demonstrated certain that there was some fumble in the issues of the
organization and these conditions are grounds that are sufficient with regards to the
circumstance in which the respondent was as he true blue presented this case and not under any
hostility.
The court said it was vexatious for somebody to bring a suit against somebody in light of the
fact that the organization had flopped in the target for which it was initially shaped. The seat
referring to different reasons expelled the suit as not sufficient to be allowed any harms for
maliciously recording a suit for wrapping up the organization. In spite of the fact that the court
held the respondent at risk for expediting a suit outlandish grounds which harmed the credit of
the organization the seat in unanimity dismissed a case to grant extraordinary harms to the firm
as they couldn't after intensive examination not reason that obligation to pay any additional
expense could be a ground for legitimate harm.

9
 COMPARATIVE ANALYSIS

As in England, how voids were filled in the milestone instance of Willers V. Joyce and
another22, comparable advances can be also be taken in India. The judges have the freedom of
developing new laws or filling voids in the current laws which may turn outdated over a long
time. Law is a living substance and like all other living elements, it can't continue as before
and must experience an evolution when the general public needs it to. In India, suits, nature of
which are malicious are for the most part criminal and a nonappearance of solutions for a suit
documented maliciously under common laws is of least worry here yet the laws administering
the suits of criminal procedures are likewise lacking. One such model is ineffectively drafted
ladies' laws. Numerous ladies to date have whimsically recorded suits to get benefits however
the casualty of such suits has no cure.
The Indian legitimate framework has over time neglected to address real cases and this must
be changed if the judges while choosing a case abandon their moderate methodology and
develop laws of which they have outright watchfulness. The courts must quit returning to the
incomprehensible decisions and turn towards confining new laws according to the changing
time requests. One such occurrence can be disposing of the principle which characterizes what
can be called as a prosecution as it generally varies from case to case, for example in a suit
request may cause adequate measure of affront onto somebody and effectively cut down their
picture though, for another situation a grumbling itself may can possibly acquire damage to
somebody's notoriety the general public of which such individual is an occupant. In addition
to the fact that cures should be a worry for the courts' estimates, for example, taken by China
must be taken wherein an individual recording a suit of which he has information to be false is
vigorously fined and such individual is likewise then banned from engaging the court for a
significant measure of time.
Indian officials should anticipate setting up a Criminal Cases Review Commission as has been
set up by the United Kingdom for the audit of criminal cases to find whether there has been an
unnatural birth cycle of equity. The commission works solely for discovering if there has been
unsuccessful labor of equity in cases by investigating the realities and after finding such a
situation where there is adequate confirmation supporting a case where equity has not been
conveyed in the manner it ought to be those cases, are then alluded for claim alongside their
reports.
Despite the fact that there have been perceptions made by the peak court on a few events while
managing instances of malicious prosecution where equity has not been conveyed at this point,
the legislators have bombed again and again to gain by that reality and has hopelessly neglected
to think of an enactment or for the occurrence even changes which would serve for the reason
in the short run and simultaneously is utilized to outline important laws by leading further look
into with respect to what is most appropriate to the lawful arrangement of India. It is regularly
accused on the courts when such disasters happen at the same time, in the event that one
examination cautiously it is the position accused of completing such examination, disregard on

22
[2016] UKSC 43 & 44

10
whose part has added up to perversity and actually have made ready for powers which are
increasing an advantage for all the more such disasters.
There has been an outrageous infringement of the possibility of characteristic equity as every
one of these endeavors to get the law underway unjustly to fulfill their plebeian selves and are
going unpunished as the changes accessible to the unfortunate casualties are rare as well as
comprehensively wasteful. The ceaseless examples have been disturbing enough and the need
is presently being felt like never before for capable enactment, which would manage such acts.

11
 CONCLUSION

The acknowledgment of the tort of “malicious prosecution23 has been done to protect individual
interests, dealings with such asserts which are referred to the complainant as false and are for
the most part dependent on unjust thought process. The malicious suits which have been on the
ascent, without a solid authoritative structure which could help capture, these patterns where
the legitimate technique is being mishandled so as to increase illegitimate advantage by
exposing gatherings to suits which are documented with a whimsical expectation. As there are
no lawful arrangements which solely manage such situations where there has been unsuccessful
labor of equity, the article has examined the authoritative structure of England and furthermore
the methodology of the courts over yonder, with regards to managing those suits.

23
Ratanlal Ranchhoddas., Thakore, D. and Singh, G. (2013). Ratanlal & Dhirajlal's the Law of torts. 26th ed.
Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur.

12