1.
Introduction
Malicious prosecution is a common law intentional tort while abuse of legal
process differs slightly as that means setting law in motion wrongfully but the
tort of malicious prosecution when literally interpreted, gives the meaning that it
is all about prosecuting someone with malicious intent.
2. Derivation of term
Malicious: with wicked or mischievous motive or intent.
Prosecution: Instituting or carrying out proceedings against a person
3. Interpretation of Term
“The institution of a civil or criminal proceeding for an improper purpose and
without a probable cause”
Page 1044, 9th Edition Black’s Law Dictionary
4. Essentials of Malicious Prosecution
Without a just and probable cause
Nature of proceeding must be criminal
Proceedings must be ended in favour of plaintiff
With malice (bad intent)
Damage suffered to plaintiff
5. Case law
PLD 2000 Kar. 214
Marine Management Co. vs. Govt. of Pakistan
Held “Every person has a right to set in motion the judicial machinery for
the protection of his right, however, such person should never infringe the
corresponding right of others by instituting improper or false legal proceeding in
order to harass by unjustifiable litigation”
6. Scope of Malicious Prosecution
i.Civil Law
a. Section 35-A, Code of Civil Procedure 1908
b. Article 23 of Limitation Act 1908
ii. Criminal Law
c. Section 211 of Pakistan Penal Code 1860
d. Section 251, Code of Criminal Procedure 1898
e. Constitutional Law
f. Article 4 and 14, of
iii. Constitution of Islamic Republic of Pakistan 1973
7. Elements of Malicious Prosecution
i. Plaintiff was prosecuted by Defendant
The parties to the present suit of malicious prosecution must be
previously involved in another criminal litigation against each other and plaintiff
now must be the person who was previously prosecuted with malafide intent.
Mere presenting a complaint which is being dismissed before regular
hearing or trail does not provide sufficient grounds to initiate suit of malicious
prosecution because it needs litigation to go on.
Gaya Parsed vs. Bhagat Singh [1908]
ii. Proceedings terminated in favour of Plaintiff
The proceeding must be ended in favour of the plaintiff, as initiating
a suit for malicious prosecution is a contingent right as it is attached with
a condition that the previous litigation must end up in his favour.
Reynolds vs Kennedy [1784]
“It was held that no action would rise if plaintiff was convicted. Its reversal in
appeal was immaterial. Since appeal is nothing but continuation of the same”
iii. Malicious Intent
Malice means the presence of an improper and ulterior motive such
intent is one of the essential ingredient to constitute a malicious prosecution.
Anger and Revenge may be a proper motive if challenged into criminal justice
system
iv. Damage suffered by Plaintiff
Plaintiff must suffer damage due to such prosecution it may be of following
kinds:
Monetary Damage
Damage caused to a person in terms of money
Damage to Reputation
Article 14 of the Constitution provides dignity to every
Person, if due to being involved in litigation if
Reputation of a person is harmed he may brought up
Suit for malicious prosecution
v. Damage to Property
Damage caused to the property of such person
8. Burden of Proof
Burden of proof in this case lies upon plaintiff as he is under obligation
after filing the case to prove also that previous litigation was intended
maliciously.
Hudson vs. Lainer [1998]
Plaintiff bears burden of proving that the prosecution was:
Malicious
Instituted by or with cooperation of plaintiff
Without any probable cause
Terminated in favour of plaintiff
9. Limitation period for Malicious Prosecution
Any person aggrieved of malicious prosecution can file a suit within one year as
provided in Article 23 of Limitation Act 1908
10. Remedies for Malicious prosecution
Following are the available remedies for aggrieved person in case of malicious
prosecution
Damages
As a general redress Damages may be awarded to the aggrieved person.
Apology
It is an optional remedy provided in certain cases where court decides that
it will be adequate and sufficient to compensate plaintiff.
Defenses for Malicious Prosecution
Honest and Reasonable belief
if a person with best of his knowledge and having a reasonable belief acts
in such a manner that plaintiff has to face prosecution then that will not amount
to malicious prosecution.
Absence of Malicious Intent
A person acting in Good faith will get a privilege over the other as he got a
Defence because if prosecution is not done maliciously that will not be termed as
malicious prosecution.
11. Conclusion
