Project

On
Prosecution by Defendant in Malicious Prosecution
 LIST OF ABBREVIATION

1. High Court HC

2. Section Sec.

3. Supreme Court SC

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 TABLE OF CASES

1. Balbhanddar Singh v. Badri Sah [1926] MANU/PR?0103/1926

2. Bolandanda Pemmayya v. Ayaradara [1966] AIR 1966 Kant

3. D.N. Bandopadhyaya v. Union of India [1975] SCC Online Raj 64

4. Kapoor Chand v. Jagdish Chand [1974] AIR 1974 Punj and Har 215.

5. Mohamed Amin v Jogendra Kumar [1945] MANU/WB/0206/1945

6. Vattappa Kone v. Muthu Karuppan Servai [1941] AIR 1941 Mad 538

7. W.B.S.K.B v. D.K. Ray, (2007) 14 SCC 568

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 TABLE OF STATUTES

Code of Criminal Procedure (CrPc.), 1973

a) Sec. 190
b) Sec. 200
c) Sec. 202
d) Sec. 203

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 TABLE OF CONTENTS

INTRODUCTION 1
MALICIOUS PROSECUTION 1
LITERATURE REVIEW 2
STATEMENT OF PROBLEM 3
HYPOTHESIS 3
RESEARCH QUESTIONS 3
OBJECTIVES OF STUDY 3
SUBSTANTIVE DISCUSSION AND ANALYSIS 4
i. Prosecution 4
PROCEEDINGS BEFORE POLICE AUTHORITIES 4
COMMENCEMENT OF PROSECUTION 5
PROCEEDINGS BEFORE A QUASI-JUDICIAL AUTHORITY 6
ii. Prosecution should be instituted by the defendant 7
CONCLUSION AND SUGGESTIONS 8
BIBLIOGRAPHY 9
 PROSECUTION BY DEFENDANT IN MALICIOUS PROSECUTION

INTRODUCTION

The Law of Torts is the area of law that deals with wrongdoing that is not the result of a
breach of contract. It happens when a legal duty imposed by the law is broken, causing harm
to the other party. Tort law is important in society because it primarily deals with the
rectification of civil wrongs. A tort can be committed against a single person or against the
general public. The Law of Torts was created to ensure that people are aware of their
responsibilities and do not act in ways that harm others. An injured person may seek
compensation from the perpetrator for the losses incurred as a result of the wrongdoer's
negligence, fault, or any other mistake. The aggrieved party must have suffered an injury in
order to be eligible for compensation and to be placed in the same condition as before.

MALICIOUS PROSECUTION
Malicious prosecution is the malicious institution of unsuccessful criminal, bankruptcy, or
liquidation proceedings against another without reasonable or probable cause. This tort
strikes a balance between competing principles, namely the right of everyone to bring
criminals to justice and the need to prevent false accusations against innocent people. A
malicious prosecution is an abuse of the legal system in which the law is wrongfully applied
to a criminal charge. Malicious prosecution is a tort that provides a remedy for those who are
prosecuted without cause and with malice. Its foundation is the misuse of the court process by
incorrectly setting the law in motion, and it is intended to promote the perversion of the
machinery of justice for a good cause. To succeed, the plaintiff must show that there was a
prosecution without reasonable and just cause, that it was started with malice, and that the
case was settled in favour of the plaintiff.

A Malicious Prosecution is defined as “a judicial proceeding instituted by one person against

another, from wrongful or improper motive and without probable cause to sustain it.”1

1 W.B.S.K.B v. D.K. Ray, (2007) 14 SCC 568

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An individual need to prove the following to file a suit for damages in Malicious
Prosecution:2

1. That he was prosecuted by the defendant;

2. The prosecution was launched in the absence of any reasonable and probable cause;

3. The defendant acted maliciously and not simply to carry out the law;

4. The proceedings complained of were terminated in favour of the current plaintiff;

This research will basically be dealing with one of the essentials of Malicious Prosecution,
i.e., ‘Prosecution by Defendant’.

LITERATURE REVIEW

BOOKS

1. THE LAW OF TORTS by R.K. Bangia

This book was referred to understand the tort of Malicious Prosecution and the
essentials to file a suit for Malicious Prosecution.

2. THE LAW OF TORTS by Ratanlal and Dhirajlal

This book was referred to understand the tort of Malicious Prosecution,
commencement of prosecution.

STATEMENT OF PROBLEM

2 Balbhanddar Singh v. Badri Sah [1926] MANU/PR?0103/1926

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There is an ambiguity regarding the admissibility of cases on Malicious Prosecution as there
are different views of different HCs on whether the criminal proceedings before quasi-
judicial authorities can give rise to an action for Malicious Prosecution.

HYPOTHESIS

There should be a definite set of rules/ guidelines to overcome this discrepancy so that there
will be some common criteria to file a suit for Malicious Prosecution.

RESEARCH QUESTIONS

1. What is Malicious Prosecution?

2. What is a Prosecution?

3. When does Prosecution commences?

4. Who can be considered a prosecutor to take an action against for malicious

prosecution?

5. Can proceedings before a quasi-judicial authority give rise to an action for malicious
prosecution?

OBJECTIVES OF STUDY

1. To get a detail understanding of Malicious Prosecution as a tort.

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 2. To understand the most essential component, ie., Prosecution by Defendant, to file a
suit for Malicious Prosecution.

3. To study the view of different HCs on whether the criminal proceedings before quasi-
judicial authorities can give rise to an action for Malicious Prosecution.

SUBSTANTIVE DISCUSSION AND ANALYSIS

PROSECUTION BY THE DEFENDANT

This important component necessitates the verification of two elements:3

i. that there was "prosecution" and

ii. that the defendant instituted the same.

i. Prosecution

A criminal prosecution, rather than a civil action, should be launched. Prosecution refers to
criminal proceedings in a court of law against an individual. When a criminal charge is
brought before a judicial officer or a tribunal, it is called a prosecution.

PROCEEDINGS BEFORE POLICE AUTHORITIES

There is no prosecution in proceedings before police authorities. In Bolandanda Pemmayya v.

Ayaradara,4 the defendant filed a complaint with the Sub-Inspector of Police alleging theft of
cardamom and fish traps by the plaintiff. The Sub-Inspector took both the plaintiff's and
defendant's statements and searched the plaintiff's home. He then filed the complaint with a
note indicating it was false. The plaintiff filed a lawsuit against the defendant, seeking
damages for malicious prosecution. It was determined that simply filing a complaint with the

3 R.K. Bangia, The Law of Torts (22nd edn, Allahabad Law Agency 2010)
4 [1966] AIR 1966 Kant

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police, where such complaint is ordered to be filed in that office solely and no judicial
authority is invoked as a result of such complaint, does not constitute prosecution. As a result,
the plaintiff's suit was dismissed.

COMMENCEMENT OF 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." 5 The
prosecution does not begin until a person is summoned to answer a complaint. There was
only an ejahar filed in Khagendra Nath v. Jabob Chandra6, claiming that the plaintiff
wrongfully took away the defendant's bullock cart and requesting that something be done.
The plaintiff was neither arrested nor charged. It was determined that simply presenting the
matter to the executive authority did not constitute prosecution, and thus the malicious
prosecution action could not be sustained. The prosecution does not begin when a magistrate
issues only a notice rather than a summons to the accused after receiving a defamation
complaint and later rejects it after hearing both sides.7

The Privy Council has established that the test for establishing a claim for damages for
malicious prosecution based on criminal proceedings is not whether the criminal proceedings
have reached a stage at which they can be correctly described as a prosecution, but whether
such proceedings have reached a stage at which damage to the plaintiff results. It is incorrect
to assert that simply filing a false complaint with the intent of triggering criminal law
automatically results in a claim for malicious prosecution damages. If the Magistrate
dismisses the complaint because it reveals no offence with which he can deal, all that has
occurred is an unsuccessful attempt to set the criminal law in motion, with no harm done to
the plaintiff. When a Magistrate takes cognizance of a complaint under Sec. 190 of the Crpc,
examines the complainant under oath under Sec. 200, holds an inquiry in open court under
Sec. 202, to which the plaintiff attends, and dismisses the complaint under Sec. 203 of the

5 Dhauji Shaw Rattanji v. Bombay Municipality [1945].

6 [1982] 1976 Assam L.R. 379.
7 Vattappa Kone v. Muthu Karuppan Servai [1941] AIR 1941 Mad 538.

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Code, the prosecution is deemed to have begun, and an action for malicious prosecution is
deemed to have been instituted.8

PROCEEDINGS BEFORE A QUASI-JUDICIAL AUTHORITY

In Kapoor Chand v. Jagdish Chand9, the Punjab and Haryana High Court ruled that
proceedings before the Punjab Boards of Ayurvedic and Unani System of Medicine
amounted to prosecution. The appellant filed a false complaint with the Punjab Board of
Ayurvedic and Unani System of Medicines, alleging that the respondent, who was practising
as a Hakim, was illiterate and had obtained a forged Hikmat certificate. The Board found the
respondent to be a qualified Hakim and granted him the right to practise as such. In a
malicious prosecution action, the respondent was found to be entitled to compensation.

The Rajasthan HC ruled in D.N. Bandopadhyaya v. Union of India, 10 that a departmental

inquiry by a disciplinary authority cannot be deemed prosecution. In that instance, after an
investigation into a train crash, the inquiry committee determined that the plaintiff, who
worked as a Way Inspector for the defendant's railway, was negligent and was punished. In a
writ petition, the disciplinary authority's order was overturned. In a malicious prosecution
action, the Rajasthan HC ruled that the disciplinary authority was acting in a quasi-judicial
capacity and hence could not be labelled judicial power; thus, there was no prosecution of the
plaintiff.

In the Law of Torts by R.K. Bangia, he mentions both this cases and put forward his opinion
that “The decision of the Punjab & Haryana HC in Kapoor Chand v. Jagdish Chand (supra)
appears to be more logical than the above stated decision of the Rajasthan HC. There appears
to be no reason why the plaintiff, who is a victim of unfounded proceedings before some
administrative or quasi-judicial tribunal should not be entitled to claim compensation. It is

8 Mohamed Amin v Jogendra Kumar [1945] MANU/WB/0206/1945; Radhu Naik v Dhadi Sahu [1952] AIR
1953 Orissa 56
9 [1974] AIR 1974 Punj and Har 215.
10 [1975] SCC Online Raj 64

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hoped that the decision of Punjab and Haryana High Court will be preferred over the decision
of the Rajasthan HC, in subsequent cases.”11

There are different views of different high court that whether the criminal proceedings before
quasi-judicial authorities can give rise to an action for Malicious Prosecution.

ii. Prosecution should be instituted by the defendant

A prosecutor is a person who actively participates in enforcing the law in order to prosecute
another. A prosecutor is the individual who initiates criminal proceedings, even when they
are undertaken in the name of the State for the purpose of malicious prosecution. The Privy
Council stated in Balbhaddar v. Badri Sah,12 “In any country where, as in India, prosecution
is not private, an action for malicious prosecution in the most literal sense of the word could
not be raised against any private individual. But giving information to the authorities which
naturally leads to prosecution is just the same thing. And if that is done and trouble caused,
an action will lie.”

An individual cannot be considered a prosecutor simply because he reported an offence to the

police. Even if the information given to the police was false, it cannot give the plaintiff cause
of action in a malicious prosecution suit unless he (the defendant) is proven to be the true
prosecutor by establishing that he was actively participating in the prosecution and was
primarily and directly responsible for the prosecution.

A private individual must have done more than simply file a complaint with the police to be
considered a prosecutor for the purposes of his liability for malicious prosecution. He had to
be actively involved in the proceedings and make every effort to ensure that the plaintiff was
found guilty of the crime. A private individual who simply files a complaint with the police
and provides information that he believes to be correct does not become the prosecutor. 13 To
become a prosecutor, one must actively participate in enforcing criminal law. When there is
no evidence of the private person's conduct before and after he made the statement or
complaint to the police demonstrating that he was directly responsible for the charge being
11 R.K. Bangia, The Law of Torts (22nd edn, Allahabad Law Agency 2010)
12 [1926] MANU/PR/0103/1926
13 Pannalal v. Shrikrishana

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made, had taken primary part in the conduct of the case, and had done everything he could to
secure the plaintiff's conviction in a suit for malicious prosecution, he cannot be said to be the
prosecutor, and an action for malicious prosecution can be brought against him.

CONCLUSION AND SUGGESTIONS

We can easily conclude from Punjab and Haryana HC ruling in Kapoor Chand v. Jagdish
Chand(supra) and Rajasthan HC ruling in D.N. Bandopadhyaya v. Union of India(supra) that
there are differences in opinion of different HCs on whether the action in Malicious
Prosecution can arise from a criminal proceeding held in any quasi-judicial authority or any
disciplinary authority.

While mentioning this in his book, R.K. Bangia stated that ‘The decision of the Punjab &
Haryana HC in Kapoor Chand v. Jagdish Chand (supra) appears to be more logical than the
above stated decision of the Rajasthan HC.’ I also have the same opinion as that of him in
this matter, as when a criminal proceeding is instituted against a person in a quasi-judicial or
disciplinary authority, he suffers harm to his reputation and not giving any recourse to him is
impeding justice.

After researching further in this matter, I did not find any SC of India ruling in this matter.
There is a need for a clear rule in this regard by the SC so that same rule would be applicable
all over the country.

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BIBLIOGRAPHY

1. Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis.

(The Yale Law Journal 1979) vol. 88, no. 6, <https://doi.org/10.2307/795629.>

2. Gubrele A., Malicious Prosecution- A comparative analysis of the position in

England and India (iPleaders 2019) <https://blog.ipleaders.in/malicious-prosecution-
a-comparative-analysis-of-the-position-in-england-and-india/>

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