ASSIGNMENT 1

TOPIC – MALICIOUS PROSECUTION

Submitted To: Dr. Sini John

Assistant Professor of Law
Christ Academy Institute of Law

Submitted By: Bhavya Sree D

BBA LLB (B) - 2nd Semester

Submitted On: 02.06.2021

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 TABLE OF CONTENTS

S.No PARTICULAR Pg.No

1. Introduction 3-4
2. Evolution of Malicious Prosecution 4-5
3. When Malicious Prosecution Commences 5
4. Essential Elements Of Malicious Prosecution 5 - 10
5. Difference Between Malicious Prosecution and 10
False Imprisonment
6. Remedies For Malicious Prosecution 10
7. Malicious Civil Proceedings 10 - 11
8. Cases Of Malicious Prosecution 11 - 12
9. Conclusion 12
10. References 12 - 13

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 MALICIOUS PROSECUTION
INTRODUCTION
A tort is a civil wrong for which the remedy is a common-law action for unliquidated damages,
and which is not exclusively the breach of a contract or the breach of a trust or other merely
equitable obligation according to Salmond.1 It is a largely uncodified law.2 One of such torts is
malicious prosecution.

Every citizen of India has the right to bring a person in front of the court to seek justice. But, in
some cases, due to malice, a person may be wrongly accused and prosecuted. This causes severe
damage to an innocent person. So, under the tort of malicious prosecution, the individual can get
justice and hold the person responsible for damages liable. Thus, these torts act as a balance
between the above-mentioned competing principles, namely, freedom to bring criminals to justice
and protection against false accusations.

Malice, in legal terms, means a wrongful act done intentionally without just cause or excuse while
prosecution means a proceeding in a court of law charging a person with a crime. In the case of
West Bengal State Electricity Board v. Dilip Kumar Ray, the Court defined the term malicious
prosecution as “a judicial proceeding instituted by one person against another, from wrongful or
improper motive and without probable cause to sustain it”.3 In the same case, the Court laid down
the distinction between “an action for malicious prosecution” and “an action for abuse of process”
in the wordings "A malicious prosecution consists in maliciously causing the process to be issued,
whereas an abuse of process is the employment of legal process for some purpose other than that
which it was intended by the law to affect the improper use of a regularly issued process."

Malicious prosecution is the malicious institution against another of an unsuccessful criminal,

bankruptcy, or liquidation proceeding, without reasonable or probable cause 4. In other words,
other words, this is a trespass to a person. It’s also referred to as “abuse of process”, that is, “abuse

1
Salmond and Heuston on the law of torts, Book by R. F. V. Heuston 1953
2
THE LAW OF TORTS P.M. Bakshi
3
AIR 2007 SC 976
4
Prateek Shanker Srivastava, “Malicious Prosecution under Law of Tort”
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of process of law for personal interest.” It has been frequently observed that this is done with the
intent to damage a person’s reputation.

Malicious prosecution includes both criminal charges and civil claims. The main difference
between claims based on criminal and civil actions has to do with evidence. For example, in a
claim based on malicious criminal prosecution, mental suffering is usually considered an element
of general damages with the requirement of no special proof whereas, for claims based on civil
actions, the plaintiff must be able to prove quantifiable damages.

EVOLUTION OF MALICIOUS PROSECUTION

The history of malicious prosecution can be traced back to the writ of conspiracy which was in
existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because the
writ of maintenance supplanted it. The tort of malicious prosecution got established in England in
its modern form in 1699 in Savile v. Roberts5 and is accredited to Holt, J.

A major role was played by society in the evolution of this tort as it was the society’s perception
towards the menace of malicious cases as well as towards the usage of the justice system. The
introduction of a public prosecutor also played an important part in this evolution.6 In America,
the concept of malicious prosecution was formulated by Chief Justice Taney. He stated that "The
tort was initially applied to criminal proceedings; to cases where a party had maliciously, and
without probable cause, procured the plaintiff to be indicted or arrested for an offense of which he
was not guilty.”7

In India, a victim of malicious litigation has no legal recourse to protect themselves from the
mental stress and agony, the loss of reputation, loss of livelihood and earning, the costs of
defending the prosecution, the physical hardships, etc. which he had to encounter. No

5
(1698) 1 Ld Raym. 374
6
Malicious Prosecution: Essentials and Defence By Aparna Ramamoorthy May 30, 2020,
https://www.legalbites.in/malicious-prosecution/
7
Dinsman v Wilkes, 53 U.S. (12 How.) 390, 402 (1851). Chief Justice Taney also mentioned the
tort’s extension to maliciously initiated civil cases.
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consideration is given to fundamental rights like the right to life & liberty, right to reputation, right
to work which were violated. The Supreme Court of India has said that the “Right to Reputation
is part and parcel of Right to Life and Personal Liberty guaranteed by the Constitution of India”.8
This was observed in the case of Umesh Kumar v. State of Andhra Pradesh9 where the victim faces
unnecessary and malicious litigation. His right to reputation also gets totally destroyed due to the
social stigma attached to prosecution in India. Hence, In India, where fundamental rights are
protected with all their vigor, it is about time that the law of malicious prosecution is also granted
constitutional status.

WHEN THE MALICIOUS PROSECUTION COMMENCES

Summoning a person to answer the complaint does not mean the commencement of the
prosecution. As seen in the case of Khagendra Nath v. Jacob Chandra10, the defendant alleged that
the plaintiff wrongfully took the bullock cart belonging to him and requested that something is
done. The defendant was neither arrested nor prosecuted as it was held that the matter before the
executive did not amount to the prosecution and, so, malicious prosecution can’t be maintained.

ESSENTIALS ELEMENTS OF MALICIOUS PROSECUTION

To prove malicious prosecution, the tort law demands the plaintiff to prove some essential
elements. All of these must co-exist for the plaintiff to prove that he was prosecuted maliciously11.
They are as follows:

1. The institution or continuation of a civil or criminal legal proceeding against

the plaintiff by, or abetted by, the defendant
The plaintiff must prove that the defendant prosecuted him. Prosecution means a criminal charge
is made before a judicial officer or tribunal and any person who makes or is actively instrumental

8
Deepak Bajaj v. State of Maharashtra and Ors, AIR 2009 SC 628
9
John T. Ryan, Jr., Note. Malicious Prosecution Claims Under Section 1983: Do Citizens Have
Federal Recourse? 64 Geo. Wash. L. Rev. 776, 778 (1996).
10
A.I.R. 1977 N.O.C. 207(Gau) 11Major Gian Singh v. SP Batra, AIR 1973 (P&H) 400 at p. 408.

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in the making or prosecuting of such a charge is deemed to prosecute it and is called the
prosecutor.12 This doesn’t necessarily mean that the defendant must have been the prosecutor. It
also applies if the defendant was the one who filed the case. The mere act of giving information
to the police will not imply that the defendant was the prosecutor13. His active participation in the
prosecution is necessary. Also, a departmental inquiry by disciplinary authority cannot be called
the prosecution14.

Based on whether there is a prosecution of a person before the process is issued, calling upon him
to defend himself, a conflict arose. One view was that a prosecution began only when the process
was issued and the dismissal of a complaint by the magistrate, under section 203 of the code of
criminal procedure, meant that no action could be taken whereas the other view was that a
prosecution commenced as soon as a charge was made before the court and before the process was
issued to the accused.

The proper test was conducted by the privy council in the Mohammad Amin v. Jogendra Kumar
Bannerjee 15 . In this case, a complaint was filed by the defendant against the plaintiff. Upon
examination, the magistrate inquired s 202 of the code of criminal procedure. Notice of the inquiry
had been issued to the plaintiff who attended it with his counsel and incurred costs doing so. The
complaint was dismissed under section 203 of the code. In these circumstances, the Privy Council
held that there was a prosecution. So, the test is not whether the criminal proceedings have reached
a stage at which they may be described as a prosecution but whether such proceedings have
reached a stage at which damage is caused to the plaintiff. A mere presentation of complaint to a
magistrate who dismissed it on the ground that is disclosed no offense may not be sufficient ground
for presuming that damage was a necessary consequence. The plaintiff must prove that damage
was caused as a result of the prosecution.

2. Termination of proceedings in the favour of the plaintiff

12
Halsbury’s Laws of England, Vol. 22 (2nd Ed. By Halisham) at Page 3
13
Bolandarda Pemmayya v. Ayaradara Kushalappa, AIR 1966 Mys. 13 at p. 14
14
D.N. Bandopadhyaya v. Union of India, AIR 1976 Raj. 83.
15
(1948) 51 CWN 723 (PC)
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For the plaintiff to file a suit for malicious prosecution, the proceedings must have ended in his
favor. As stated by Bhagwati, J, No action for malicious prosecution or for any other malicious
proceeding which involves a judicial decision of any question at issue between the parties will lie,
until or unless the prosecution or other proceeding has been terminated in favor of the person
complaining of it. So long as proceedings are pending, no action lies on the ground that they have
been wrongfully instituted. It is a rule of law that no one should be allowed to allege, a still-pending
suit as that is unjust16.

Termination in favor of the plaintiff does not mean the judicial determination of his innocence; it
means the absence of a judicial determination of his guilt.17 But, if a conviction takes place, he is
not entitled to initiate a case of malicious prosecution. His only legal remedy shall be to appeal
against the conviction and if it results in his favor, then he can sue the defendant for malicious
prosecution.

3. Absence of reasonable and probable cause

Any cause will be referred to as reasonable and probable cause if there is an honest belief in the
guilt of the accused founded upon reasonable grounds arising out of the existence of circumstances
and making it to be believed as true. In absence of such probable and reasonable cause, it will be
a case of malicious prosecution.

According to Hicks v. Faulkner 18 , following conditions have to be satisfied for there to be a

reasonable and probable cause:
1. An honest belief of the accuser in the guilt of the accused
2. Such belief to be based on an honest conviction of the existence of circumstances that led the
accused to that conclusion.
3. Belief is on such grounds as would lead any fairly cautious man in the defendant’s situation to
believe so.

16
Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. 320.
17
Ibid, p. 209.
18
(1878)8 QBD 167 (171)
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4. Circumstances so believed by the accuser must be such as amount to a reasonable ground for
belief in the guilt of the accused.

In the case of Glinski v. Melver19, it was stated that reasonable and probable cause means “that
there must be cause for thinking that the plaintiff was probably guilty of the crime imputed.”

In the case of Antarajami Sharma v. Padma Bewa20, the Court established that, in a suit of damages
arising from malicious prosecution, the burden to prove that the defendant had persecuted him
without any substantive and just cause, lies on the complainant. So, if the defendant can be shown
to have initiated the prosecution without actually believing the truth of the charge, it cannot be
said that he acted upon reasonable and probable cause. The fact that the plaintiff has been acquitted
is not prima facie evidence that the charge was unreasonable and false. Lack of reasonable and
probable cause is to be understood objectively, it does not connote the subjective attitude of the
accuser. The test is whether there was reasonable and probable cause for any discreet man to make
the charge, complained of. Mere circumstances of suspicion cannot be said to be reasonable and
probable cause.21

4. Defendant’s Malicious Intent

The plaintiff has to prove that the prosecution was the consequence of the defendant’s malicious
intent towards him and not with a mere intention of carrying the law into effect. Malicious intent
refers to any ulterior motive on the part of that person, not in furtherance of justice. The lack of an
objective and reasonable cause is not evidence of malice but lack of honest belief is evidence of
malice.

Malice may be proved either by showing that the motive was and that it can be wrong. It can also
be done by showing that the circumstances were such that the prosecution can be only accounted

19
(1962) AC 726 at p. 767
20
AIR 2007 Ori. 107
21
Kapoor Chand & Rikhi Ram Mahajan v. Hakim Jagdish Chand Sripat Rai, AIR 1974 (P&H)
215 at p. 218.
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for by imputing wrong or indirect motive to the prosecutor.22 Malice can only be established by
inference from circumstances. Proving it by direct evidence is not possible.23 However, this does
not mean that if a prosecution ends in acquittal, the informant was malicious.

The best way to prove malice is by portraying the wrong motive or by indicating that the
circumstances of the case were such that the only causation factor of the prosecution was some
wrong or indirect motive of the prosecutor. It can be proved by previous improper conduct like
setting up false evidence or advertising the charges. Though the defendant may not have acted
with malicious intent from the beginning of the case if he comes to know about the innocence of
the plaintiff during it and continues it, it shall be considered malicious. 24 The mere fact that
criminal prosecution resulted in acquittal or discharge of the accused will not establish that the
defendant had acted with malice.

5. Damages suffered by the plaintiff as a result of the prosecution

The plaintiff must prove that they suffered damages as a consequence of the prosecution, even
though the charges were later dropped or the case was dismissed. The damage could be financial,
physical, mental, or social.

In the case of C.M. Agarwalla v. Halar Salt and Chemical Works25, the Court established that the
damages can be claimed on three factors,
 Damage to the plaintiff’s reputation as in the outrage of the general public due to being
accused of an offense
 Damage to the plaintiff’s person as in where the person is at risk of losing his life and
liberty
 Damage to the plaintiff’s property as in where to get himself acquitted, he has to pay
expenses of litigation

22
Mitchell v. Williams, (1843) 11 M&W. 205.
23
Jogendra Garababu v. Lingaraj Patra, AIR. 1970 Orissa 91 at p. 100
24
R.K. Bangia, The Law of Torts 209 (Allahabad Law Agency, Haryana, 23rd ed., Reprint, 2014).
25
AIR 1977 Cal. 356
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Also, the damage must be the result of malicious prosecution. So, while assessing the damages,
the court considers based on offense the plaintiff was charged for, the inconvenience faced by him,
monetary loss, and the status and prosecution of the person prosecuted

DIFFERENCE BETWEEN MALICIOUS PROSECUTION AND FALSE

IMPRISONMENT
While both false imprisonment and malicious prosecution discuss the violation of certain
fundamental rights, they also differ from each other. False imprisonment imposes total restraint
upon the personal liberty of a person. It is procured by a private individual or by an authorized
official by asserting legal authority. It doesn’t require any proof or malice on the part of the
defendant. whereas malicious prosecution does not impose total restraint upon a person, it is
procured by judgment or judicial order. It is also required by the plaintiff to prove malice on the
part of the defendant and damage caused. Unlike in false imprisonment, the mistake of a fact is
valid evidence in malicious prosecution.

REMEDIES FOR MALICIOUS PROSECUTION

Being the subject of malicious prosecution can cause a wide range of injuries, whether it's from
unsubstantiated criminal charges or a bogus civil claim. In either case, the plaintiff may claim
compensatory and sometimes punitive damages. Compensatory damages consist of both the
actual damages that were a direct result of the malicious prosecution like pain and suffering and
special damages that identify quantifiable monetary losses Actual damages for a malicious
prosecution claim will hinge on the emotional impact of the act. Plaintiffs also may claim a
damaged reputation, loss of future earning potential, attorney fees, court fees. Actual damages
will vary from case to case and depending on your jurisdiction.

MALICIOUS CIVIL PROCEEDINGS

In the case of malicious civil proceedings, no action can be brought as in malicious criminal
proceedings even though it is malicious and has been brought without any reasonable cause.26
The only thing protecting plaintiffs from false litigation is that any unsuccessful plaintiff should

26
Darbhangi Thakur v. Mahabir prasad, A.I.R. 1917 PAT 460
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bear the cost of litigation. Malicious civil proceedings have limited exceptional only as they can
get compensation that is more than compensation for the litigation.

In the case of Genu Ganapati v. Bhalchand Jivraj27, it was held that to establish malicious abuse
of civil proceedings, malice must be proved. The plaintiff must allege and prove that the defendant
acted without a reasonable and probable clause and the entire proceedings against him have either
terminated in his favor or the process complained of has been superseded or discharged. He must
also prove that such civil proceedings have interfered with his liberty or property or that such civil
proceedings have affected or are likely to affect his reputation.

CASES OF MALICIOUS PROSECUTION

In the case of Nagendra Nath Ray v. Basnta Das Bairagya28, after a theft had been committed in
the defendant’s home, he informed the police that he is suspecting the plaintiff. According to the
defendant’s complaint, police arrested him. He was discharged by the magistrate because the
police report showed that there was no evidence connecting to the plaintiff and the theft. The
plaintiff filed a suit for malicious prosecution. The court held that the suit is not maintainable
because there was no prosecution itself and concluded that police and prosecution are not the
same. So, the case was dismissed.

In Dattatraya Pandurang Datar v. Hari Keshav29 , an FIR was lodged by the defendant lodged to
police regarding the theft in his shop naming the plaintiff who was his servant as a suspect for the
theft. So, the police arrested the plaintiff, and he was remanded by the magistrate to the police
custody. On the investigation, no sufficient information was found to prove that he is a criminal.
So, he was discharged. The plaintiff, then, sued the defendant for malicious. The court held that
the suit could not exist as the defendant just gave the information to the police and nothing more
than that. So, the defendant could not be deemed as the prosecutor of the plaintiff.
So, the defendant was not liable for malicious prosecution.

27
AIR 1981 Bom. 170.
28
7 Nagendra Nath Ray v. Basnta Das Bairagya I.L.R (1929) 47 CAL. 25
29
Dattatraya Pandurang Datar v. Hari Keshav, A.I.R. 1949 Bom. 100.
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In the case of T. S Bhatta v. A.K. Bhatta30, the defendant filed a complaint against the plaintiff.
After that, he moved the session judge in the revision and he got examined as a witness in the
session trial. He also impleaded in the criminal revision in the high court. He knew that the charge
was false and he was acting without probable or reasonable cause. So, the court held that he was
the real prosecutor of the case and held him liable for the malicious prosecution.

CONCLUSION
Malicious proceedings are that proceedings are initiated with malicious intent. It is an abuse of
the process of the court by wrongfully setting the law in motion on a criminal charge. To succeed,
the plaintiff must prove the essential elements that are required for a suit for malicious
prosecution. The burden of proof rests on the plaintiff. Based on the facts and circumstances
presented, the Court decides whether the suit is filed maliciously or not. The Small Cause Court
shall have no jurisdiction in suits for compensation for libel, slander, malicious prosecution,
adultery, or breach of promise of marriage.31

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. It is the malicious institution of unsuccessful criminal or bankruptcy
or liquidation proceedings against another without reasonable or probable cause. Malicious
prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a
criminal charge. It is an effort to disturb the proper functioning of the judicial machinery.

REFERENCES

AN ANALYSIS ON THE MALICIOUS PROSECUTION By Sindhuja D From Presidency

University, SUPREMO AMICUS VOLUME 20 ISSN 2456-9704

Central Government Act; Section 19 in The Presidency Small Cause Courts Act, 1882

30
T.S Bhatta v. A.K. Bhatta, A.I.R. 1978 KER. 111
31
Central Government Act; Section 19 in The Presidency Small Cause Courts Act, 1882
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https://indiankanoon.org/doc/810186/

Law of Torts – Notes, Case Laws And Study Material

https://www.legalbites.in/library-law-of-torts/

Malicious Prosecution
https://www.findlaw.com/injury/torts-and-personal-injuries/malicious-prosecution.html

Malicious Prosecution- A comparative analysis of the position in England and India, By Namrata
-June 6, 2019
https://blog.ipleaders.in/malicious-prosecution-a-comparative-analysis-of-the-position-in-
england-and-india/

Malicious Prosecution - Origin, definition, and essentials of malicious prosecution with case
laws.
http://www.legalservicesindia.com/article/1857/Malicious-Prosecution.html

MALICIOUS PROSECUTION UNDER INDIAN TORT LAW, July 24, 2019

https://www.schooloflegaleducation.com/blog-post/malicious-prosecution-under-indian-tort-
law/

https://blog.ipleaders.in/malicious-prosecution-law-tort/

Malicious Prosecution under Law of Tort, Written By: Prateek Shanker Srivastava - Student, IInd
Year, Dr. RML National Law University, Lucknow, U.P.
http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html

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