Malicious Prosecution

• Malicious prosecution is a mode of abuse of legal

process.
• Malicious prosecution consists of institution of
criminal proceedings in a court of law maliciously
and unreasonably and without a proper cause of
action.
• If a person can show actual damage, he can file an
action for damages under the law of torts.
• When such prosecution causes actual damage to
the party prosecuted, it is a tort for which he can
bring an action.
• This tort balances two competing principles, namely
the freedom that every person should have in
bringing criminals to justice and the need for
restraining false accusation against innocent persons.
• The foundation of the action lies in abuse of the
process of the court by wrongfully setting the law in
motion and it is designed to Discourage the
perversion of the machinery of justice for an improper
purpose.
 Prosecution by the Defendant
• It involve two elements, first that the plaintiff
was prosecuted and secondly, that the
defendant was the prosecutor.
• Prosecution means criminal proceedings against
a person in a court of law.
Nagendra Nath Ray v Basanta Das
Bairagya, ILR (1929)47 Cal 25
• A theft had been committed in the defendant's
house he informed the police that he suspected the
plaintiff for the same.
• The plaintiff was arrested by the police but was
subsequently discharged by the magistrate. In a suit
for malicious prosecution, it was held that it was
not maintainable as there was no prosecution at all
because mere police proceedings are not the same
thing as prosecution.
• Prosecution should be made by the defendant. A
'prosecutor' is a person who is actively
instrumental in putting the law in force for
prosecuting another.
• If I tell a policeman that I have had a particular
thing stolen from me and that it was seen in X's
possession and the policeman without any
further instructions on my part makes inquiries
and arrests, it is not I who have instituted the
prosecution.
• In order that a private person can be termed as
'prosecutor' he must've done something more
than merely lodging the complaint with the
police, he must've been actively instrumental in
the proceedings and must've made his best
efforts (e.g., procures false evidence) to see that
the plaintiff is convicted for the offence.
[Martin v Watson (1995)3 All ER 559(HL)]
• An investigating officer is not liable unless he
was a party to the falsity of the case.
• A pathologist preparing a postmortem report or a
person appearing merely as a witness cannot be
held to be a prosecutor.
• A malicious reporter to the police for getting a
prosecution launched on the basis of his evidence
is within the catch of the principle.
Essentials:
• i. The proceedings were instituted without any
probable or reasonable cause,
• ii. Proceedings were filed maliciously and not to book a
criminal in a court of law/not with a mere intention of
carrying the law into effect,
iii. Termination of Proceedings in favour of the Plaintiff,
iv. As a result of such prosecution, the plaintiff has
suffered damage.
Example:
• P informed police that a theft has been committed in his house
and he suspected that it has been committed by A. A was
consequently arrested but was discharged by the magistrate
as the final police report showed that A was not connected
with the theft.
• When A prosecuted P for malicious prosecution, the court
dismissed the suit as there was no prosecution in a court of
law. To prosecute is to set the law in motion.
• Prosecution is not deemed to have commenced before a
person is summoned to answer a complaint.
Reasonable and probable cause
• An honest belief in the guilt of the accused person upon a
full conviction, founded upon reasonable grounds of the
existence of circumstances, which assuming them to be true,
would reasonably lead any prudent man placed in the
position of the accused to the conclusion that the person
charged was probably guilty of the crime imputed.
• There is a reasonable and probable cause when one has
sufficient ground for thinking that the other person has
committed the offence.
Abrath v. N.E.Railway 1833
• ‘M’ had recovered compensation for his injury in a
railway collision from the railway Co. Latter on the
railway Co. came to know that those injuries were
not suffered in the collision but were artificially
created by him in collision with one doctor ‘P’.
• The railway Co. made inquiries and on legal advice
sued P for conspiring with M to defraud the railway
Co. ‘P’ was acquitted and he filed an action for
malicious prosecution against the railway. It was held
that railway Co. had reasonable and probable cause.
• The defendant will be deemed to have made
reasonable and probable cause when –
• (a) he took care to be informed of the facts,
• (b) he honestly believed his allegation to be true, and
• (c) the facts were such as to constitute a prima facie
case. The prosecutor's belief should be based on due
enquiry.
• The prosecutor should honestly believe in the story
on which he acts and in believing in the story he
must act like a reasonable prudent man.
 Malice
• Another essential ingredient is malice. Malice means presence of
some improper or wrongful motive, intent to use the legal process
in question for some other purpose.
• e. g. a wish to injure the other party rather than to vindicate law
or justice.
• Mere acquittal of the plaintiff is no proof of malice.
• It may be malice if the person acted in undue haste,
recklessly or failed in making proper and due inquiries
or in sprit of retaliation or on account of long standing
enmity.
•
Person has been acquitted
• The last essential ingredient is that the person has been
acquitted or the conclusion of proceeding is in favour of
the plaintiff and consequent to it the plaintiff has
suffered damage. If proceedings terminate in favour of
the plaintiff but he has not suffered any damage, then
no action for malicious prosecution lies.
• Because of the prosecution one must suffer damage,
the damage may be injury to one's fame, reputation. It
may also put in danger his life or liberty, or it may result
in damage to his property.
• The proceedings terminate in favour of the plaintiff if he has
been acquitted on technical grounds, conviction has been
quashed, or the prosecution has been discontinued.
• Even if the plaintiff is convicted by the trial court but the
conviction is set aside in appeal, the plaintiff can sue for
malicious prosecution.
• When the plaintiff is acquitted of the offence for
which he is prosecuted but is convicted of a lesser
offence, he may still sue for malicious prosecution of
the graver offence of which he is acquitted.
• No action can be brought when prosecution or
the proceedings are still pending. In an action
for malicious prosecution, the cause of action
arises, not on the date of institution of the
proceeding complained of, but when the
proceeding terminates in favour of the plaintiff.
Distinction between False imprisonment
and Malicious Prosecution
• False imprisonment is wrongfully restraining the personal liberty of the
plaintiff; malicious prosecution is wrongfully setting the criminal law in
motion.
• In false imprisonment the personal liberty of the plaintiff may have
been wrongfully restrained by a private individual or setting a
ministerial officer in motion. While in malicious prosecution it is the
judicial officer who is set in motion.
• Where the inspector did not interpose any discretion of his own
between the charge made by A and arrest of B and the arrest followed
merely by signing of the charge-sheet by A, A's tort was that of false
imprisonment.
• Imprisonment is prima facie a tort, malicious
prosecution is not.
• In an action for false imprisonment, it is the
defendant who has to justify the imprisonment,
whereas in an action for malicious prosecution the
plaintiff has to affirmatively prove the absence of
reasonable and probable cause.
• The defendant is thus in a more advantageous
position in a suit for malicious prosecution as
compared to a suit for false imprisonment.
• Malice is an essential ingredient in an action for
malicious prosecution but not in that of false
imprisonment.
• It is no defence to an action for false
imprisonment that the detention by the
defendant was without malice but due to a
bona fide mistake.