MALICIOUS PROSECUTION AND REMEDIES

AVAILABLE FOR MALICIOUS PROSECUTION

VICTIMS

LAW OF TORTS – RESEARCH PAPER

SUBMITTED BY: SUBMITTED TO:

NAME- UJJWAL SABOO MS. SONI BHOLA
ROLL NO. – 1384 ASSISTANT PROFESSOR, LAW
SEM- III NUSRL, RANCHI
SECTION- A

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI
ACKNOWLEDGEMENT
 ABSTRACT:

This research paper explores the multifaceted issue of malicious prosecution

and delves into the various legal remedies available to individuals who have
fallen prey to unjust legal proceedings. The paper examines the historical
context, key elements of malicious prosecution, shedding light on the
detrimental consequences for victims.

The primary objective of this study is to provide a comprehensive analysis of

the legal recourse options available to those who have suffered from malicious
prosecution. Through an in-depth review of case law, statutes, and scholarly
literature, the paper identifies and evaluates the effectiveness of diverse legal
remedies, including civil actions for damages, criminal prosecutions against
malicious prosecutors, and potential reforms in legislation.
 INTRODUCTION:

Sometimes criminal charges or civil lawsuits are deliberately filed to frighten,

harass, libel, or harm the other party. These cases are typically dropped and
rarely pursued. Such actions are known as malicious prosecution. Malicious
prosecution occurs when one party knowingly and with malicious intention
initiate a baseless litigation against the other party.

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. It is said to be "a prosecution on some charge of crime which
is wilful, wanton, or reckless or against the prosecutor's sense of duty and right,
or for ends he knows or is bound to know are wrong and against the dictates of
public policy. Malicious prosecution is a legal concept that strikes at the core of
justice. It occurs when an individual is unjustly subjected to a criminal or civil
proceeding with an ulterior motive, such as revenge, harassment, or the pursuit
of some other improper objective. Victims of malicious prosecution not only
face the burdensome weight of defending themselves against baseless charges
but also endure the emotional, financial, and reputational toll that accompanies
such proceedings. Hence, it is important to address the victims of malicious
prosecution as prosecution is very costly and in Indian society, case against any
person harm his reputation in the society.
 WHAT IS A TORT?

According to Section 2(m) of the Limitation Act 1963, tort means “a civil
wrong which is not exclusively a breach of contract or breach of trust.
Fraser defined tort as “an infringement of a right in rem of a private individual
giving a right of compensation at the suit of the injured party.”
Salmond defined tort as “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.”
Thus we can conclude that
1. Tort is a civil wrong. - Tort is a civil wrong and not a criminal
wrong. In civil wrong, the injured party institutes civil proceeding against
wrongdoer. In criminal wrong, State institutes criminal proceedings
against the accused. In civil wrong, main remedy is damages and
injunction. In criminal wrong, main remedy is imprisionment and fine.

2. The civil wrong is other than a mere breach of contract or

trust. – It is important to note that mere civil wrong is not a tort. A civil
wrong can be a breach of contract or breach of trust too. By the process of
elimination only, we can find out that whether civil wrong falls in breach
of contract or breach of trust? If it falls, then it is not a tort, and if it
doesn’t fall, it is a tort. Additionally, a civil wrong may fall under both
tort law and breach of contract or trust law. For instance, a bailee who
wrongly refuses to return the property that was lent to him may be held
accountable in both contract and tort law. In contract law, this is because
no one is allowed to hold onto another person's property without a valid
reason. Another instance is when a passenger travels with a ticket and is
hurt due to the railroad's negligence; in this case, the railroad is liable for
a tort as well as a breach of contract. The injured party in this instance
may only sustain injuries to one head. He can't make two damage claims.

3. This wrong is redressable by an action for unliquidated damages.-

 Once harm has been done, it cannot be undone. Therefore, money is
usually the solution. In a tort lawsuit, damages are not fixed and are
instead determined by the specific facts and circumstances of the case.

ESSENTIALS OF TORT:

There are two essentials to constitute a tort-

1. There must be some act or omission on the part of the defendant.
For a person to be liable for torts, he must have committed an act for
which he was not expected to be held accountable or he must have
neglected to take action for which he was expected to take responsibility.
It is crucial that an act of wrongdoing be acknowledged by the law.
Liability cannot exist for unlawful acts or omissions if they are only
social wrongs.

2. The act or omission should result in legal damage (injuria), i.e.,

violation of a legal right vested in the plaintiff.
The act or omission must result in legal damage (injuria). It doesn’t
matter whether the party suffered actual damages (damnum) or not. To
constitue a tort, there must be injuria sine damno or both injury and
damage and not damnun sine injuria. Injuria sine damno means injury
without damage. If there is violation of legal right but there is no any
actual damage, then also there is a tort. Example- in Ashby V. White 1,
plaintiff, a qualified voter was not allowed to vote in elections. The
election was won by the candidate for whom he wanted to vote. There
was not any actual damage as the election was won by the candidate
whom he wanted to vote for but there was violation of his legal right i.e.
right to vote and the court held that defendant was liable.
The act that caused the damages does not qualify as a tort if the person
has actual damages but his legal rights have not been violated. Example-
In Gloucester Grammar School case2, defendant, a schoolmaster, set up a
school in the same locality of the plaintiff. The plaintiffs were forced to
lower their rates from 40 cents to 12 pence per scholar per quarter due to
competition. It was decided that the defendant had the freedom to
establish their school anywhere, hence they were not accountable.

1
(1703) 92 ER 126
2
(1410) YB 11 Hen IV
Although the plaintiff in this case has experienced substantial harm, the
defendant's establishment of the school was within his legal rights.
 REMEDIES AVAILABLE AFTER TORT IS
COMMITTED:

1. Damages - once harm has been done, it cannot be undone. Damages are
therefore the usual form of remedy for torts committed. Damages are
monetary in nature. The Wrongdoer awards money for the tort that he
committed. There are various types of damages like nominal damages,
contemptuous damages etc.
2. Injunction - A court order that directs the performance of an act or
restrains the conduct or continuation of an act is known as an injunction.
Injunction may be granted or denied by the court at its discretion.
Injunctions are of various kinds- Temporary injunction, perpetual
injunction, prohibitory injunction and mandatory injunction. Example
when remedy injunctions is pleaded- for torts like trespass or nuisance,
generally, plaintiff pleads for injunction.
3. Specific restitution of property -When the plaintiff has been
wrongfully dispossessed of his movable or immovable property, the court
may order that the specific property should be restored back to the
plaintiff.

In most of torts, these are remedies generally available for injured party. In
some specific torts, there are other remedies which are also available. Example-
Abatement of nuisance, in malicious prosecution, a criminal proceeding can be
initiated.
 MALICIOUS PROSECUTION:

Malicious prosecutions was originated in England. The origin of malicious

prosecution can be traced back to writ of conspiracy which was in existence as
early as Edwards I’s reign. It was evolved in 18th and 19th century and spread all
over the world. It is seen more in common wealth countries as these countries
had great influence of English Laws. Malicious prosecution is the outcome of
misusing the due process of law. It is the abuse of legal system. It is done with
malice intent to harass, defame or injure the other party. In West Bengal State
Electricity Board v. Dilip Kumar Ray3, Malicious prosecution was defined by
the Supreme Court as "a judicial proceeding instituted by one person against
another, from wrongful or improper motive and without probable cause to
sustain it" It is said to be "a prosecution on some charge of crime which is
wilful, wanton, or reckless or against the prosecutor's sense of duty and right, or
for ends he knows or is bound to know are wrong and against the dictates of
public policy. The court also outlined two requirements that must be met in
order for a prosecution or lawsuit to be considered malicious: (1) there must
have been a reasonable basis for the prosecution or lawsuit to be started, and (2)
the prosecution or lawsuit must have ended in a fashion that benefited the
defendant.

For example, sometimes in matrimonial cases, when wife files for divorce on
the ground of cruelty and she also files criminal complaint against his husband
and his family under Section 498A even though the husband and his family has
treated him with respect. Another case can be when a business rival files a
lawsuit against you for fraud in order to ruin your company’s reputation.

3
A.I.R. 2007 S.C. 976
 ESSENTIALS FOR MALICIOUS PROSECUTION:

A person has to prove following essentials to institute a suit for malicious

prosecution-
1. That he was prosecuted by defendant- Prosecution should be criminal
prosecution rather than civil prosecution. Prosecution means criminal
proceedings against a person in the court of law.

2. The prosecution was instituted without any reasonable and probable

clause- The present plaintiff must demonstrate that there was no
reasonable and probable clause in the defendant's initial prosecution.
When the defendant has sufficient evidence to believe that the plaintiff
was most likely guilty of the offense accused, there is reasonable and
probable cause.

3. The defendant acted maliciously and not with a mere intention of

carrying the law into the effect - The plaintiff has to prove that there
was malice of some indirect and illegitimate motive in the prosecutor. It
means that defendant is actuated not with the intention of carrying the law
into effect, but with an intention which was wrongful in the point of fact.

4. The proceedings complained of terminated in the favour of present

plaintiff- It is essential that the prosecution terminated in favour of
plaintiff. A judgment in the plaintiff's favor indicates that there has been
no finding of guilt by the court, not that there has been no finding of
innocence. Even if the defendant filed the lawsuit with the goal of
causing harm, the plaintiff cannot file a malicious prosecution case if the
court finds him guilty.

5. The plaintiff suffered damage as a result of prosecution- The plaintiff

has to prove that he suffered any damage due to consequence of the
malicious prosecution. Damage can be money to fight the case, or
damage to his reputation or emotional damage.
 IS MALICIOUS PROSECUTION A TORT OR NOT?

For Malicious prosecution to be tort, it must satisfy these 2 essentials-

1. There must be some act or omission on the part of the defendant.

2. The act or omission should result in legal damage (injuria), i.e.,

violation of a legal right vested in the plaintiff.

A person who initiates any prosecution against a person with malice intention
just to harm the reputation of the other, he is committing an act which is
wrongful and he should have not initiated a prosecution. Hence, there is a
wrongful act on the part of defendant. Hence, first essential is met.

When a malicious prosecution is initiated against any person, his basic right to
life, liberty and equality is violated. There are chances that court may wrongly
convict the person too, which violates his basic human rights. We have often
heard that “100 criminal chut jaaye par ek nirdosh ko saza nahi honi chahiye”
which means that 100 criminals may get acquitted but 1 innocent person should
not be convicted. If an innocent person is wrongly convicted due to malicious
proceeding, it violates the innocent person right to life, liberty and equality
which is given to us by our Constituion. Hence, 2 essentials is also met.

Hence, malicious prosecution is a tort as it met the 2 essentials for an action to

constitute a tort.
 LEGAL REMEDIES AVAILABLE FOR
MALICIOUS PROSECUTION VICTIMS:

There are three types of remedy available for malicious prosecution victims-
1. Public law remedy-This type of remedy is available when malicious
prosecution is initiated by government officials. In this remedy,
compensation is awarded by courts because of the infringement of their
fundamental rights given by the Constituion. In Ram Lakhan Singh v.
State of UP4, a writ petition under Article 32 was filed. Petitioner was an
IFS officer who rendered services to State of UP and Government of
India for about 35 years till his retirement. In 2003, then CM wanted to
get the Benti Bird Sanctuary denotified by National Board for Wild Life
of which petitioner was present. CM asked petitioner to take necessary
steps for the same but petitioner did not comply with the orders. CM
initiated vigilance enquiry against him and ultimately he was removed
from his post. The Supreme Court awarded him Rs.1000000 as
compensation and disposed the writ petition.

2. Private law remedy- These are the civil law remedies available for
malicious prosecution. In most of the cases, remedy is damages. Law is
settled in a case of damage for malicious prosecution i.e. onus of proof of
absence of reasonable and probable clause rests on plaintiff. The plaintiff
also has to prove other essentials which are prosecution was instituted by
defendant, defendant acted maliciously, the proceedings were terminated
in favour of plaintiff and due to proceedings, and plaintiff suffered actual
damage. In suit for damages for malicious prosecution, the court may
award nominal damage suffered by plaintiff which is cost of advocate
fees, court fees. The court may also award aggravated damage to injured
party for the harm, the malicious prosecution has done to his reputation.
Aggravated damages are compensatory in nature and not punitive in
nature. The court may award exemplary damage. Exemplary damage are
awarded with a view to prevent similar behaviour in the future.

4
(2015) 16 SCC 715
 Another remedy is Injunction. Injunction is a legal remedy sought by a
party who believes they are being wrongfully prosecuted or harassed
through legal proceedings without proper cause. An injunction is a court
order that requires a party to do or refrain from doing a specific act. The
rationale behind seeking injunction in malicious prosecution is to stop
malicious proceedings or prevent further harm and seeking apology from
the defendant.

3. Criminal Law Remedy- A person aggrieved by malicious prosecution

may institute a criminal proceeding against the wrong doer under Section
211 of IPC. Section 211 of IPC is part of Chapter XI which is titled as
Offences against public justice.
Section 211 of IPC- False charge of offence made with intent to injure.
Whoever, with intent to cause injury to any person, institutes or causes to be
instituted any criminal proceeding against that person, or falsely charges any
person with having committed an offence, knowing that there is no just or
lawful ground for such proceeding or charge against that person, shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both;
And if such criminal proceeding be instituted on a false charge of an offence
punishable with death, imprisonment for life or imprisonment for seven years or
upwards, shall be punishable with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
If I as a wife initiates malicious proceeding against my husband under Section
498A of IPC for which a person can be punished with imprisonment upto 3
years, then my husband can initiate a criminal proceeding against me and I will
fall under first part of Section 211 and can be punished with imprisonment upto
2 years but If I starts malicious proceeding under Section 307 of IPC for which
a person can be punished with imprisonment for life, then if husband initiates
criminal proceeding against me, then I can be punished with imprisonment
which may extend to 7 years.
 CASES ON MALICIOUS PROSECUTION:

In Ram Lakhan Singh v. State of UP5, a writ petition under Article 32 was
filed. Petitioner was an IFS officer who rendered services to State of UP and
Government of India for about 35 years till his retirement. In 2003, then CM
wanted to get the Benti Bird Sanctuary denotified by National Board for Wild
Life of which petitioner was present. CM asked petitioner to take necessary
steps for the same but petitioner did not comply with the orders. CM initiated
vigilance enquiry against him and ultimately he was removed from his post. The
Supreme Court awarded him Rs.1000000 as compensation and disposed the
writ petition.

In Radhey Mohan Singh v. Kaushalya Devi6, respondent had filed complaint

against appellant alleging misappropriation of money. The appellant
acknowledged having committed the accused offense. Complaint filed by
respondent on investigation was found to be correct but due to lapse by
prosecution and non-corroboration of story by prosecution, appellant was given
the benefit of doubt. The court held that claim for damages for malicious
prosecution was not allowed as there was no reasonable or probable cause for
the respondent for filing complaint against the appellant.

In Kapoor Chand v. Jagdish Chand7, 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. The appellant filed a fraudulent
complaint, claiming that the respondent, a licensed Hakim, was illiterate and
had received a fake certificate of Hikmat through unethical methods. The Board
decided that the respondent was, in fact, a qualified Hakim and allowed him to

5
(2015) 16 SCC 715
6
A.I.R. 2003 Del. 413.
7
A.I.R. 1974 P. & H. 215
continue working as one. It was decided that the respondent in a malicious
prosecution case had a right to receive compensation.

In the case of Sova Rani Dutta v. Debabrata Dutta8, the defendant filed a
fraudulent false information report (FIR) against the plaintiff and his sister,
claiming that the plaintiff's ear ring was stolen from her, causing bleeding
damage to her ear. The defendant was aware that the F.I.R. was fabricated, and
since the offense was legally recognized, the police would have to handcuff the
plaintiff. It was held that the defendant was accountable for the plaintiff's
humiliation as a result of his handcuffs and for malicious prosecution.

8
A.I.R. 1991 Cal. 186
 CONCLUSION:

Malicious prosecution is a serious infringement on the principles of justice, as it

involves the initiation of baseless legal proceedings with wrongful intent. This
legal concept not only places a heavy burden on the victims, who must defend
themselves against groundless charges, but it also inflicts emotional, financial,
and reputational harm. The essence of malicious prosecution lies in its misuse
of the legal system to intimidate, harass, defame, or injure the other party, often
driven by motives that go against the principles of justice and public policy.

Victims of malicious prosecution have various legal remedies at their disposal.

These remedies include public law remedies, private law remedies, and criminal
law remedies. Public law remedies may involve compensation for the
infringement of fundamental rights when the malicious prosecution is initiated
by government officials. Private law remedies primarily consist of damages,
where the plaintiff must prove the absence of reasonable and probable cause,
malicious intent, favorable termination of the proceedings, and actual damage
suffered. Injunctions may also be sought to prevent further harm. Additionally,
victims can pursue criminal law remedies by initiating proceedings against the
wrongdoer under Section 211 of the Indian Penal Code.

In essence, malicious prosecution stands as a violation of justice and the legal

system's integrity. It is crucial to address this issue to ensure the protection of
individuals' rights, prevent wrongful convictions, and maintain the credibility of
legal proceedings. Efforts to raise awareness, establish stringent legal standards,
and provide effective remedies are essential to curb the misuse of the legal
system and protect innocent individuals from the adverse consequences of
malicious prosecution.
 BIBLIOGRAPHY:
Books:

1. Dr. R.K. Bangia, Law of Torts, 23rd edition, 2013

2. S.P. Singh , Law of torts, 5th edition, 2010

Websites:

1. https://www.scconline.com/
2. https://www.legalserviceindia.com/legal/article-2434-malicious-
prosecution.html
3. https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf
4. https://supremoamicus.org/wp-content/uploads/2020/09/A1v20-59.pdf
5. https://home.heinonline.org/