Malicious Prosecution under Law of Torts

(Malicious - Root word is ‘Mal’, Mal denotes(meaning - means) ‘bad’ -

Meaning of malicious is having or showing a desire to cause harm to
someone.)
Prosecution - the process of officially accusing someone in a court of
law of committing a crime.
Meaning
Malicious prosecution occurs when one party has (1)knowingly and
(2)with malicious intent (meaning - bad intention) initiated baseless
litigation against another party. This includes both criminal charges
and civil claims.
Or
In Lay man term - To accuse somebody with false allegation before the
court.

For Example - If A gives his pen to B to keep it and later he filed a

case/suit in a Court alleging (meaning - accusing) that the person B
has committed theft by stealing his pen. Later it turn out case was
false.
[(Part of crime) Under Criminal Law/Crime - Section 211. False
charge of offence made with intent to injure(meaning - damage/
Legal injury).

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, 1 [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.]

Stage After Which case for Malicious Prosecution is filed

1. False Case/Suit before court (with bad intent)
2. Court did not find any ground/proof/evidence to proceed with
case.
3. Court either suspend the case (in civil proceedings) or acquit
the person(B) (in criminal proceedings) [case band ho jaega]
4. The person B can now file a suit of Malicious Prosecution.

[Prima Facie - at very initial stage / at very beginning]

Essential Components of Malicious Prosecution under Law of

Torts
To assert the contention of malicious prosecution, the plaintiff has to
establish that the act by the defendant has all the components that
are imperative to establish liability in such cases. They are
enumerated below:
1. The defendant must have instituted a false proceeding against the
plaintiff.
2. The proceedings so instituted were as a result of sheer malice and
must not have any element of reasonableness or probability.
3. The end result of case must be either acquittal (The Court acquits
(Bari in Hindi) the person from any crime/criminal offence) or
suspension of case proceeding.
4. (After filing It is for the plaintiff to prove that these proceedings
have arbitrarily interfered with his liberty (Meaning - due to the case
he went to jail) and has led to adverse ramifications on his/her
reputation in the society.
For further reading

Civil proceedings – In the case of Genu Ganapati v. Bhalchand

Jivraj, the Bombay High Court laid down the similar ground rules for
establishing civil liability in case of malicious prosecution.

1. Prosecution by the defendant:

The foremost requirement to establish the case of malicious
prosecution by the plaintiff. It has to be presented that the
prosecution was initiated against the plaintiff as a result of arbitrary
proceedings by the defendant. The term ‘prosecution’ hasn’t been
aptly defined in the Code of Criminal Procedure, 1974 however with
the help of various precedents set by the judicial courts, we can infer
the essence of the term and its scope.

Contrary to the generic notion, prosecution is not limited to the

initiation of proceedings against the plaintiff or a formal trial before a
court. In the case of Mohammed Amin v. Jogendra Kumar Banerjee,
the privy council laid down the test for contending such a prosecution.
For the same, the council emphasised on the damage caused to the
plaintiff as a result of proceedings rather than ascertaining the time
when a proceeding took the form of prosecution. It was held that the
plaintiff will have the burden to prove that despite the dismissal of the
defendant’s complaint by the magistrate, the same did result in
causing damage to him.

What is not a prosecution?

It is a commonly held principle that any disciplinary action by an
authority cannot be regarded as prosecution by a judicial authority
thus it cannot be subjected to the suit of malicious prosecution

Further, in the case of Khagendra Nath v. Jacob Chandra, the court

ruled that prosecution cannot be said to have begun at the stage
where the complaint was made before a competent (executive)
authority.

2. Presence of malice and the lack of reasonability or probability

in plaintiff’s prosecution:
This requisite lays its emphasis on the intention of the defendant
while instituting a suit for action against the plaintiff , which must be
determined on a factual and evidential basis as stated in the case
of Jogendra Garababu v. Lingaraj Patra. It is imperative that in such
cases, the complaint made must lack the intent of bringing justice to
the defendant and that the defendant must have acted out of malice
without any substance in the allegations. It must be noted here that
the term ‘malice’ is not limited to mere ill- feelings or hatred towards a
person but also covers any immoral/improper cause that can result in
causing wrongful damage to the plaintiff such as to gain leverage. The
same principle can be traced to the case of Bank of India v.
Lakshmimani Das and Ors.

Such an assessment must be made from the point of view of a

reasonable man. It is also crucial to state that even if at the beginning
of the proceedings, the defendant was unaware of plaintiff’s
innocence, malice in such cases can be deemed to be present since
the moment, the defendant comes to know of the innocence of the
plaintiff and still he/she continues with the proceedings which are
false in nature. The onus to prove such malice would lie on the
prosecution.
Furthermore, if it is proved in due course of trial that the even though
the defendant possessed hard-feelings towards the plaintiff, the
complaint was reasonable on the basis of it being probable that the
plaintiff had indeed wronged the defendant, then in such a scenario
no suit for malicious prosecution can be made possible.

3. Termination of the prosecution in the favour of Plaintiff:

The case of malicious prosecution under Law of Torts can only be
pleaded in successful termination of the proceedings in the favour of
the plaintiff. It can be in the way of either the plaintiff’s acquittal or
the suspension of any further proceedings against him. It is must also
be noted that the termination of such proceedings against the plaintiff
doesn’t necessarily represent his innocence but merely states that
he/she hasn’t been convicted in lieu of the charges brought him/her.
This position was stated in the case of Gilchrist v. Gardner.
Exception to this rule:
There are two exceptions to the aforementioned requirement which are
as follows:
a) When the plaintiff and the defendant have reached a settlement
resulting in withdrawal of the allegations made against the plaintiff.
b) A plea bargain in criminal cases cannot be termed as a termination
in the favour of the plaintiff.
4. Damages to be accrued by the plaintiff as a result of the wrongful
prosecution:

The last requirement to fulfil all the components of malicious

prosecution under Law of Torts is that the plaintiff must have
accrued certain harm/injury (damage) as a result of the
prosecution that terminated in his/her favour. This harm must be
foreseeable and should not be extremely remote. The categorisation of
this harm was first stated by Holt CJ in the case of Savile v. Roberts
which was later opined by the Calcutta High Court in the case of C.M.
Agarwalla v. Halar Salt and Chemical Works. The categorisation goes
as follows:
a) Damages in respect of harm to the plaintiff’s reputation – If the suit
has led to tainting of the reputation of the plaintiff in the eyes of the
right-thinking members of the society through unnecessary
allegations then the damages for the same can be demanded.
b) Damages in respect of harm to the plaintiff’s body – When the
proceedings have hampered the liberty of the plaintiff or have led to
fear of injury then the damages for the same are recoverable.
c) Damages in respect of harm to the plaintiff’s property – The charges
borne by the plaintiff to fight a suit for his acquittal are recoverable if
the proceedings terminate in his favour and on the ground of arbitrary
complaint.

Difference Between Malicious Prosecution and Abuse of Power

The distinction between prosecution inspired by malice and the act of
abuse of power is of considerable significance so as to ascertain the
liability. This distinction was dealt in case of West Bengal State
Electricity Board v. Dilip Kumar Ray wherein the Apex Court
(Supreme Court of India) held that the former refers to instituting a
process out of malice while the latter refers to process to obtain one’s
motive by legal means for purpose other than the one it was intended
for.

Defences against Malicious Prosecution under Law of Torts

The defences that can be pleaded in the suit of malicious prosecution
are:
When the plaintiff is at fault – As stated supra, if the proceedings
instituted against the plaintiff result in conviction based on his/her
being guilty of the charged levied then such a person loses the right to
sue the defendant. The only remedy the plaintiff has will be of appeal
against the verdict.
When the defendant is possession of some privilege– The privilege
may be in the form of judicial or statutory immunity.

Conclusion
The suit of malicious prosecution serves two purpose. The first being
that it enables the plaintiff to sue the defendant, the person who had
wrongfully instituted case with no probable cause. The Second
purpose is that it leads to protection of one’s liberty and reputation
not only through way of damages but also through creating a
deterrent effect on the wrongdoer. This preservation is in coherence
with the Fundamental rights enshrined in the Constitution of India.