TOPIC: MALICIOUS PROSECUTION

SUBMITTED TO: PROF. SURBHI GOYAL

FACULTY OF TORT

SUBMITTED BY: KIRTIMA PANDEY

ENROLLMENT NO.: 21FLUCDDN01005
SUBMISSION DATE: 20TH JANUARY
ICFAI LAW SCHOOL
THE ICFAI UNIVERSITY, DEHRADUN
ACKNOWLEDGEMENT
First and foremost, I would like to thank our tort Prof. Surbhi Goyal who guided us in doing
this project. She provided us with invaluable advice and helped us in difficult periods. Her
motivation and help contributed tremendously to the successful completion of the project.

Besides, we would like to thank all the teachers who helped us by giving us advice and
providing the equipment which we needed.

Also, I would like to thank my family and friends for their support. Without that support we
couldn’t have succeeded in completing this project.

At last, but not in least, we would like to thank everyone who helped and motivated us to work
on this project.
TABLE OF CONTENTS

WHAT IS MALICIOUS PROSECUTION

CONCEPT OF MALICIOUS PROSECUTION
ESSENTIALS OF MALICIOUS PROSECUTION
Defendant Started the Prosecution
Prosecution Without any Reasonable or Probable Cause
Defendant Acted with Malice Intent
Prosecution Terminated in Favour of The Plaintiff
Damages Suffered in case of a Malicious Prosecution
DIFFERENCE BETWEEN FALSE IMPRISONMENT AND MALICIOUS
PROSECUTION
POSITION IN INDIA
CONCLUSION
REFERENCES
What is Malicious Prosecution?
The term ‘Malice’ in common parlance means ill-will against a person. In the legal sense, it
refers to a “wrongful act done intentionally without just cause or excuse.” The
term prosecution means “a proceeding in a court of law charging a person with a crime”.

‘Malicious Prosecution’ means” a prosecution on a charge of crime, which is willful, wanton

or reckless or against the prosecutor’s sense of duty and right.”

Malicious Prosecution is generally a prosecution against a person without any probable cause
that causes damage. Malicious Prosecution is a kind of tort and the person or the victim has all
the powers Liability which arises in malicious prosecution has always had to go between the
two principles- one is the freedom to take actions which means freedom to set law in motion
and to bring criminals into justice and two is the necessity to check false accusation against
innocent people.

Concept of Malicious Prosecution

Settling tools or as to bring someone down to the negotiation table to obtain pecuniary benefits.
The prominent and most common of all the remedies for such a victim are cross suits claiming
damages for initiation of a malicious suit. Such suits have become prominent and to name a
few can be seen in the recognition of the tort of malicious prosecution has been done to act as
a safeguard for individuals, dealings with such claims which are known to the complainant as
false and are mostly based on wrongful motive. Such suits have commonly come into play and
are mostly seen as score cases of medical malpractice, suits under criminal offences,
punishment for which is penal in nature and a few suits under various other acts.

A defendant (plaintiff in the original suit) must prove reasonability in filing such suits and,
must provide such facts which would have led any person in his place acting rationally to come
to the same conclusion as he came upon when he filed the suit. A person while bringing forward
a suit claiming damages for suit filed maliciously must prove that he was acquitted by a
competent court and the filing of such suit was done by the original plaintiff (defendant in this
case) without any reasonable and probable cause.

While the question of probable cause arises, a defendant cannot claim that he initiated
prosecution under the order of a competent body which itself was moved by the intel provided
by such individual, for the cause of justice would be defeated and any person claiming so could
evade the law and simply walk away. However, a person acting upon the information provided
to him by any competitive person, if acts on such advice and files a suit, he would not be held
liable for, the element of malice was absent and anyone in his shoes would have acted similarly
upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, would not be a good
cause of action as suspicion and claim must be differentiated the former being based on facts
which would have led any person to believe in possibility and not outright presence
of guilt. Determination of the fact, who the prosecutor is, essential while bringing a cross suit
claiming damages for such prosecution. A prosecutor is that person who set the law in motion,
it can be an ordinary person, an individual associated with the administration or for instance
police, or even a magistrate but, the rationale isn’t who proceeded but who was it that instigated
or initiated the claim. A judicial authority can only be said to be a prosecutor when it can be
proved without any doubt that he had knowledge that the claims were false or he had an element
of disbelief in relation to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts
which he had reason to believe are not substantially true and based on those facts the magistrate
ordered a probe and the defendant in that suit was prosecuted. A point must be clearly
understood that the mere filing of a complaint viciously would not usually amount to the tort
of malicious prosecution if, the magistrate dismisses the complaint as disclosing that to be no
offence, this wouldn’t be a prosecution but a failed attempt to set the criminal law into motion.

As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a
prosecution when the Magistrate takes cognizance of the complaint which then is followed by
an examination of such complaint by means of inquiry in open court under sec 202 of CrPC the
prosecution is deemed to have commenced. Various courts across the globe have had their
views of what can be called as a prosecution which has not been solved but further added up
to the pre-existing ambiguities regarding the same.

The Bombay High Court in Ahmedbhai V. Framji observed the commencement of

prosecution shall be deemed to have begun not when the magistrate takes cognizance and acts
as per the provisions but, when he is approached, and a complaint has been made maliciously
with a view of such a complaint being entertained by such magistrate. However, a prosecution
cannot be said to have been initiated unless there have been processes issued by the magistrate
with respect to such a complaint, which too has been affirmed by the Calcutta and the Madras
High Court.

For a successful claim for damages of malicious prosecution, it has been held by the courts that
the original prosecution must have been for an offence which is criminal in nature and which
is punishable by imprisonment and fine or both. This has been a drawback of the legal system
of India, which has failed to acknowledge the fact that multiple times there is enough damage
caused to the individual’s repute even though the prosecution is for a civil wrong, but the courts
in India have ruled out that possibility in various instances. This development has been seen in
England that irrespective of the nature of the complaint, whether it is one of criminal or civil
nature, a suit for malicious prosecution will be maintainable.

However, for a suit which is demanding damages for malicious prosecution for a civil
complaint, the plaintiff would have to show special damages which were incurred by him in
maintenance of such suit against him. This has again been held in a recent English case that it
would not be just a limitation of law for not being able to maintain such suits claiming damages
for a suit filed maliciously under any civil act, but it would be severely unjust on behalf of the
victim of such suit.

Time and again the needs have been voiced for the recognition of claims for a suit filed
maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps
to address such problems being faced by the public at large. England has been updating its laws
as per the time demands but, the laws in India are nowhere near what could be called a
competent law to deal with such claim.

Essential Elements of a malicious prosecution

The essential elements of malicious prosecution are-

• The defendant started the prosecution.

• Without any reasonable and probable cause.
• The defendant acted with malicious intent.
• Prosecution terminated in favour of the plaintiff.
• Plaintiff suffered damage or any kind of injury as a result of prosecution.

Defendant started the prosecution

The first thing that the plaintiff is needed to prove is that the prosecution which was started
was done by the defendant himself to file a suit for damages against the defendant. The
word “prosecution” carries a wider sense than a trial and includes criminal proceedings by
way of appeal, or revision. In one of the case the court held that merely bringing the matter
before the executive authority does not amount to prosecution and, therefore, the action for
malicious prosecution could not be maintained just by showing that the case was brought to
the note of police officials.

It is important to note that an inquiry by the police officials cannot be termed as prosecution as
held in the case of D.N. Bandopadhyaya v. Union of India [3]. By this statement, the court
made it clear that there should be more than just filing of the prosecution to the police officials.
In one more case of Musa Yakum vs Manilal the court stated that it will be no excuse for the
defendant that he instituted the prosecution under the order given by the court if the court was
moved by the false evidence which was submitted by the defendant and gave the order.

Prosecution without any Reasonable and Probable Cause

If one is filing a suit for malicious prosecution also has the requirement to prove that the
defendant who has filed the case has done it without any reasonable and probable cause. The
question is whether it has any reasonable and probable cause will depend on the facts of the
case and will be decided by the court on the basis of facts. In the case of Antarajami Sharma
vs Padma Bewa, it has been said that law is settled that in a case of damages for malicious
prosecution, the onus of proof of the absence of reasonable and probable clause rests on the
plaintiff.
The dismissal of any prosecution, in any case, does not mean the absence of reasonable and
probable cause. If a man prefers an indictment which contains several other charges and for
some, there is a reasonable cause and for others, there is no then in that case, the liability of
malicious prosecution would be complete.

Defendant Acted with Malicious Intent

Essential elements in a suit for damages for malicious prosecution is that the plaintiff is
required to prove that the defendant acted with malicious intent in prosecuting the plaintiff and
not with the mere intention of carrying the law into motion. Malice is not just a feeling of ill
will or spirit of vengeance towards the plaintiff but it may be to act with any improper purpose
which motivates the prosecutor to gain an advantage over the person.

Malice may be inferred upon proof of the absence of honest belief in the accusation and
consequent want of reasonable and probable cause for instituting the prosecution complained
of. It is not important the prosecutor was acting maliciously from the beginning itself but
becomes malicious at a later stage then an action for malicious prosecution could be
maintained. In the case of Bank of India vs Lakshmi Das the court defined malice and stated
that malice in absence of a probable and reasonable cause must be proved by the defendant
himself before the court of law.

In State of Punjab vs Des Raj, the plaintiff was doing business in food grains and was having
a very good reputation. Then a food inspector was having ill-will against the plaintiff as he did
not supply him one bag of rice free of cost. And due to that grudge, he falsely implicated the
plaintiff. The prosecution was launched against the plaintiff on the basis of a False report made
by the food inspector. The court subsequently acquitted the plaintiff on the grounds that the
allegation was found to be false. After the acquittal the plaintiff filed a suit for recovery of
damages for his malicious prosecution. The court held that the plaintiff was entitled to damages
as the prosecution launched against the plaintiff was based without proper investigation and
was totally malicious.

Prosecution terminated in favour of the plaintiff

In a suit for claiming damages for malicious prosecution, plaintiff has to show that the
proceedings initiated against him ended in favour of the plaintiff but it does not mean the
absence of innocence rather it means the absence of guilt by the judicial mechanism.

An action cannot be initiated while the proceedings are still pending in the court of law. Then
the withdrawal of prosecution due to settlement, bars accused’s claim for damages for
malicious prosecution, provided the settlement was between him and the prosecutor. But,
where if the withdrawal was the result of a settlement between the prosecution and one of
several accused, the other accused are not disentitled to make the claim.
Damages suffered in case of a malicious prosecution
The person who has suffered and has been maliciously prosecuted can successfully bring an
action against his prosecutor but only when he suffers some damage from the prosecution. If
he/she suffers no damage he cannot sue. The damage may be one of the three kinds and they
are as follows-

• Damage to his person as when a person is prosecuted with a crime by the punishment
of which he may lose his life, limb or liberty.
• Damage to a person’s fame, for example, to prosecute for a crime which involves
some slur on his character.
• Damage to his property as when he is forced to spend money on necessary charges
to acquit himself of the crime which he is accused for example fees of a lawyer, loss
of business during the trial or proceedings.

It must be borne in mind of the person that the damage is done, and need not necessarily be
proved by someone. It may be presumed in such situations. Then in cases of prosecution which
involves some scandal about the character of a person, damage to his reputation is proved and
need not be proved.

If in a case it happens where one is prosecuted for an offence which is only technical breach of
some bye-law involving no reflection on moral character then there it was held that there was
no loss of reputation. For example, in the case of Wiffen vs Baily it was held by the court that
there was no loss of reputation in respect of a complaint under the Public Health Act for non-
compliance with notice to remove a nuisance on one’s own premises. Again, if the offence for
which the plaintiff was charged was only punishable with fine, and the damage to the person
cannot be claimed. So, in case of malicious prosecution, only punitive damages are given and
these damages are to given to penalize the plaintiff for bringing the case to the court.

Difference between False Imprisonment and Malicious

Prosecution

False Imprisonment Malicious Prosecution

It imposes total restraint upon the personal
liberty of a person. It is procured by a private
individual or by an authorised official by
asserting legal authority and is prima facie, a
tort. There need not be any proof or malice
on the part of the defendant.
It does not impose total restraint upon a
person. It is procured by judgment or judicial
order. It is not a tort by itself. Further, in the
case of Malicious Prosecution, the plaintiff
has to prove malice on the part of the
defendant which is not a case in false
imprisonment.
Position in India
There are provisions in India for dealing with malicious proceedings of only criminal suits and
a claimant usually has no remedies if such proceedings were instituted under any civil law other
than any Municipality Act. As has been seen in England cases of such a nature are given a
greater degree of importance, the backlog of cases and other drawbacks such as ways those are
not only illegitimate but also draw a calculable degree of mockery on the legal system itself.
Such cases drag for years and sometimes decades and the ordeal of the claimant turns out to
become graver as time passes and he/she is left without a remedy but, must bear the expenses
in maintenance of suit.

The English legal system has been flexible enough as per the changing times but the
conservative approach of Indian lawmakers hasn’t really worked out for the public good as
there are still no remedies for such civil claims which defame the person and one can only
claim for damages when he/she can show such damages which in the eyes of the court would
be called as special damage which should be causa causans of the complained act. The
rationale of prosecution is a bit different than that in England, it is deemed to be a prosecution
when it has reached a stage where calculable damage has been caused to the party defending
that suit. For a detailed insight into the concept, we reviewed a judgement by the Calcutta High
court which later went on to be cited while deciding many other cases.

In Mohamed Amin V. Jogendra Kumar Banerjee and others agreement was entered upon
by the appellant and the first respondent for sale of a few commodities to a company which
was to be formed by the first respondent. In the process, the first respondent incorporated a
second respondent for carrying out the purchase and half of the agreed goods were transferred
by the appellant. Later it was discovered that the respondent had breached the terms of the
agreement which was entered upon, as a result of which the appellant refused to honour it and
did not transfer the remaining goods. As a result of which the second respondent acting in his
personal capacity and on behalf of the other respondent filed a suit under section
405, 420, and 422 of the Indian Penal Code and demanded that he be answerable to such
charges. The magistrate held an inquiry in an open court attended by the appellant and
dismissed the claim stating there is no cheating committed in this case and breach which exists
is of purely civil nature.

The appellant brought forward a suit for malicious institution of criminal proceedings against
him, to which the judge affirmed but observed the bench must stick to an earlier judgement by
The High Court of Judicature of Calcutta in Golap Jann V. Bhola Nath khettry where it was
observed that it cannot be deemed as prosecution if there is no issue of any processes or where
the complaint was dismissed by the magistrate upon inspection of the complaint, citing the
above precedent the claim of the appellant was dismissed which the bench observed to be
rightly decided.
Conclusion

It can be said that the malicious proceedings are that proceedings which are initiated with
malicious intent. The elements (i.e., prosecution by the defendant, absence of reasonable and
probable cause, defendant acted maliciously, termination of proceedings in the favour of the
plaintiff and plaintiff suffered damage as a result of the prosecution) which are necessary to
the plaintiff to prove in a suit for damages for malicious prosecution must be fulfilled.
However, on the basis the facts and circumstances, the Court should decide whether the suit is
filed maliciously or not.

The recognition of the tort of malicious prosecution has been done to safeguard individual
interests, dealings with such claims which are known to the complainant as false and are mostly
based on wrongful motive. The malicious suits which have been on the rise, in absence of a
concrete legislative framework which could help arrest, these trends where the legal procedure
is being abused in order to gain wrongful benefit by subjecting parties to suits which are filed
with a capricious intention.
References

[1] Sheikh Mehtab v. Balaji, ILR 1946 Nag 358.

[2] Khagendra Nath v. Jacob Chandrathe 1976 Assam L.R. 379

[3] AIR 1976 Raj. 83

[5] Niaz Mohammad Khan v. Deane, (1948) ILR 2 Cal 310.

[6] AIR 2007 Ori. 107

[7] Bhim Sen v. Sita Ram, (1902) ILR 24 All 363

[8] (2000) 3 SCC 640

[9] AIR 2004 Punjab and Haryana 113.

[10] Mohamad Amin vs Jogendra Kumar Banerji, AIR 1947 PC 108