Module V

Introduction
• Malicious prosecution is the malicious
institution of unsuccessful criminal or
bankruptcy or liquidation proceedings against
another without reasonable or probable cause.
• This tort balances competing principles, namely
freedom that every person should have in
bringing criminals to justice and the need for
restraining false accusations against innocent
persons.
• Malicious prosecution is an abuse of the process
of the court by wrongfully setting the law in
motion on a criminal charge.
• The tort of malicious position provides redress
for those who are prosecuted without cause and
with malice.
• But if the defendant had reasonable or probable
cause of launching the criminal prosecution no
amount of malice will make him liable for
damages
• Bolandanda Premayya v. Ayaradara, AIR 1966 Kant
13.
• Defendant made a complaint with the police that
plaintiff has committed a theft in his house. Police
called both i.e., plaintiff as well as defendant in the
police station and recorded their statements. The
sub-inspector then made a search in plaintiffs
house. But the police found the complaint to be
false. The plaintiff filed a suit for damages against
the defendant in the civil court for malicious
prosecution. The court rejected this plea on this
ground that mere filing of complaint with the
police does not amount to prosecution. It starts
only, when some judicial authority is set in motion
as a consequence of such complaint.
 Essentials
• 1) That he was prosecuted by the defendant.
• 2) That the proceeding complained was terminated
in favour of the present plaintiff
• 3) That the prosecution was instituted against
without any just or reasonable cause.
• 4) That the prosecution was instituted with a
malicious intention, that is, not with the mere
intention of getting the law into effect, but with an
intention, which was wrongful in fact.
• 5) That he suffered damage to his reputation or to
the safety of person, or to security of his property.
When does Prosecution commence?

The Prosecution is not deemed to have commenced

before a person is summoned to answer a
complaint.

Khagendra Nath v. Jacob Chandra AIR 1977 NOC 207

There was mere lodging of ejahar alleging that the
plaintiff wrongfully took away the bullock cart
belonging to the defendant and requested that
something shoud be done. The plaintiff was neither
arrested nor prosecuted.
• It was held that merely bringing the matter
before the executive athourity did not amount to
prosecution and therefore the action for
malicious prosecution could not be maintained.
• There is no commencement of the prosecution
when a magistrate issues only a notice and not
summons to the accused on receiving a
complaint of defamation and subsequently
dismissed it after hearing both the parties.
 Institution or continuation of Legal proceedings

• There must have been a prosecution initiated by

the defendant. The word ‘prosecution’ means a
proceeding in a court of law charging a person
with a crime.
• To prosecute is to set the law in motion and the
law is set in motion only by an appeal to some
person clothed.
• The person to be sued is the person who was
‘actively instrumental in putting the law in force.
• There was a conflict on the question whether there
is prosecution of a person before process is issued
calling upon him to defend himself.
• One view was that a prosecution began only when
process was issued and there could be no action
when a magistrate dismissed a complaint under
section 203 of the code of criminal procedure.
• The other view was that a prosecution commenced
as soon as a charge was made before the court and
before process was issued to the accused.
 Mohammad Amin v. Jogendra Kumar Bannerjee

• The defendant had filed a complaint before the

magistrate charging the plaintiff with cheating. The
magistrate thereupon examined the complainant an
oath and made an inquiry under 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 magistrate finally
dismissed the complaint under section 203 of the
code. In these circumstances the Privy Council held
that there was a prosecution .
• The test is not whether the criminal proceedings have
reached a stage at which they may be described as a
prosecution, the test is whether such proceedings have
reached a stage at which damage to the plaintiff can be a
result.
• A mere presentation of complaint to a magistrate who
dismissed it on the ground, that is disclosed no offence,
may not be sufficient ground for presuming that damage
was a necessary consequence.
• It will be for the plaintiff to prove that damage actually
resulted.
 Gaya Prasad v Bhagat Singh
• The privy council pointed out that the conduct
of the complainant before and after the
complaint has to be seen to decide whether he
was the real prosecutor or not.
• If the complainant knowing that the charge is
false tries to mislead the police by procuring
false evidence for the conviction of the accused,
he would be considered to be the prosecutor.
Termination of the prosecution in the plaintiff’s favour

• The plaintiff must prove that the prosecution

ended in his favour. He cannot sue before it is
terminated and while it is pending.
• The termination may be by an acquittal on the
merits and a finding of his innocence or by a
dismissal of the complaint for technical defects
or for non-prosecution.
• If however, his is convicted, he has no right to
sue and will not be allowed to show that he was
innocent and wrongly convicted.
• His only remedy in that case is to appeal against
the conviction. If the appeal results in his favour
then he can sue for malicious prosecution.
• It is unnecessary for the plaintiff to prove his
innocence as a separate issue.
 Absence of reasonable and probable cause

• ‘Reasonable and probable cause’ is an honest

belief in the guilt of the accused based on a full
conviction founded upon reasonable grounds,
of the existence of a circumstances, which
assuming them to be true, would reasonably lead
any ordinary prudent man and cautious man
placed in the position of the accuser to the
conclusion that the person charged was
probably guilty of the crime imputed.
• 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 fact that the
accuser himself thinks that it is reasonable to
prosecute does not per se lead to the conclusion
that he had a reasonable and probable cause.
 Malice
• Malice is the gist of the action for malicious
prosecution and must be proved by the plaintiff in
the first instance.
• It is for the plaintiff to prove that there was an
existence of malice i.e the Burden of Proof lies
upon the plaintiff.
• A malicious act is one committed in a state of mind
which is regardless of social duty and fatally bent
on mischief, a wrongful act intentionally done,
without legal justification or excuse
• Malice for the purposes of malicious prosecution
means having any other motive apart from that of
bringing an offender to justice.
• Spite and ill-will are sufficient but not necessary
conditions of malice.
• MALICE has been said to mean any wrong or
indirect motive but a prosecution is not malicious
merely because it is inspired by anger. However,
wrong- headed a prosecutor may be, if he honestly
thinks that the accused has been guilty of a criminal
offence he cannot be initiator of a malicious
prosecution.
 Damages
• It has to be proved that the plaintiff has suffered damages as a result
of the prosecution complaint of. Even though the proceedings
terminate in favour of the plaintiff, he may suffer damage as a result
of the prosecution. The damages may not necessarily be pecuniary.
Acc to HOLT C.J.’s classic analysis in Savile v. Robert, here could be
three sort of damages any one of which could be sufficient to support
any action of malicious prosecution.

• 1) The damage to a man’s fame as where the matter whereof he is

accused is scandalous
2) The damage done to a person as where man is put to a danger of
losing his life , limb or liberty
3) The damage to a man’s property as where is forced to expend
money in necessary charges , to acquit himself of the crime of which
he is accused
• An action for malicious abuse of process lies in the
following cases, A malicious petition or proceeding
to adjudicate a person an insolvent, to declare a
person lunatic or to wind up a company, to make
action against legal practitioner under the Legal
Practitioners Act, maliciously procuring arrest or
attachment in execution of a decree or before
judgment, order or injunction or appointment of
receiver, arrest of a ship, search of the plaintiff's
premises, arrest of a person by police.
 Kamta Prasad v National Buildings Constructions Corp.Pvt Ltd.
A.I.R. 1992 Delhi 275

• The officer of the respondent corporation found

certain articles missing while preparing inventory and
checking up with the stock register. The plaintiff was
prosecuted under sec. 403 of the I.P.C. but was given
the benefit of doubt and hence acquitted. The plaintiff
brought an action for malicious prosecution.
• The plaintiff could not prove that he had been
harassed by the officers. There was held to be
reasonable and propable case for prosecution of
the plaintiff and therefore, fact that plaintiff was
not harassed indicated that there was no malice
and hence the charge was not held.
 Ram Lal v. Mahender Singh,
AIR 2008 Raj 8
• The plaintiff and his father had been implicated in an offence of
murder and they were acquitted by the court. Thereafter, the plaintiff
filed suit for malicious prosecution. It was held that merely because the
plaintiffs came to be acquitted or discharged by the criminal court as
the prosecution failed to prove the case beyond doubt as is required in
criminal law, it does not mean that such acquittal or discharge could
necessarily boomerang upon the defendant as a case for malicious
prosecution.
• The burden of proof squarely lied upon the plaintiffs to prove that the
prosecution was malicious, mala fide and done with an intention to
harass and defame the plaintiffs. No such case was made out by the
plaintiffs, much less proved. Therefore, the plaintiffs were not entitled
to claim any damages.
 Girija Prasad v Uma Shankar Pathak
A.I.R 1973 M.P. 79
• The plaintiff was a practicing advocate at Panna in M.P. he
was also a Jan Sangh leader and had started an agitation on the
question of food scarcity in the city and one Jan Sangh worker
had gone to a hunger strike.
• On Jan 2 1965 Girija Singh a sub inspector was deputed
outside the collectorate to control the crowd that had
collected there to support the agitation. Then there were some
bullet shots made from the revolver of the sub inspector. He
stated that while he was grappling with some person who was
assaulting him the revolver got fired mistakingly.
• On that date Girija Singh had lodged an FIR stating that he
was assaulted by some person, his watch snatched and also the
plaintiff Uma Shankar pathak was present at the scene and
was instigating the crowd against him .
• The case was investigated and the plaintiff was arrested
on 15th jan and released on bail on 18th jan. he was
finally acquitted on june 30th 1965.
• The plaintiff then sued 4 persons for malicious
prosecution , the sub inspector Girija Prasad who lodged
the F.I.R. , the S.H.O. of that area who entertained the
report and two other persons involved with the case.
• It was found by the M.P. High court that the report
prepared by Girija Prasad was false and at that relevant
time the plaintiff was not present there but was appearing
infront of a civil judge Justice Verma. Eventually Girija
Prasad was held for malicious prosecution and others
acquitted of the charge and not held liable for malicious
prosecution.
 West Bengal State Electricity Board Vs. Dilip Kumar Ray
AIR 2007 SC
• Respondent no.1 was an employee of the appellant No.1- Board and
disciplinary proceeding was initiated against him and a FIR was lodged
against him and others for alleged misconduct and commission of
various offences. Initially, the respondent No.1 was placed under
suspension for alleged acts of misconduct while functioning as the
Superintending Engineer, pending investigation drawal and disposal of
the disciplinary proceedings against him. Since no charge sheet was
issued within a period of four months a writ petition was filed by the
respondent No.1 for quashing departmental proceedings. The writ
petition was disposed of directing the Board to issue the charge sheet.
Accordingly the charge sheet was issued on 17.1.1986 containing 10
charges. Respondent No.1 submitted his reply to the said charge sheet
inter alia denying and disputing each and all of the charges levelled
against him. He prayed for permission to inspect certain documents
and to take copies thereof. Since the said prayer was not accepted,
another writ petition was filed on 13.9.1986 before the High Court.
• In the said writ petition order passed by the High Court was with to
the effect that the enquiry should continue upon proper inspection
being granted to all documents for which inspection had been offered,
excepting three items. It was further directed that the enquiry should
commence after grant of proper opportunity to the respondent no.1 in
accordance with law. It was, further directed that the enquiry should be
completed as expeditiously as possible preferably within six months
from the date of commencement of the enquiry. Respondent No.1
continued to make grievance about denial of opportunity and on 10th
September, 1986 purportedly written statement of defence in reply to
the charge sheet was filed. By order dated 12th December, 1986, the
respondent no.1 was informed that his reply was found unsatisfactorily
and it was decided to hold an enquiry. Subsequently enquiry officer
was appointed and a presenting officer was also appointed. However,
the enquiry officer appointed originally was replaced because of
respondent no.1's allegations of bias.