Tort affecting freedom

The tort of malicious abuse of legal process is divided into

three classes
a. Malicious prosecution
b. Malicious civil action
c. Abuse of legal process
• What is malicious prosecution? Explain
its essentials.
 Malicious prosecution
• Every person has the right to bring criminals to justice. But this does
not mean that any innocent person should be brought to justice
unnecessarily.
• The tort of malicious prosecution came into use to check false
accusation of innocent person.
• A judicial proceedings instituted by one person against another, from
wrongful or improper motive and without probable cause to sustain it.
• Malicious prosecution injures the reputation of the party is actionable
in torts.
This tort balance two competing principles:
1. The freedom that every person should have in bringing criminals to
justice;
2. The need for restraining false accusations against innocent persons.

The reason for an action for malicious prosecution is to stop the abuse
of the legal process/judicial system for improper cause.
Essentials
[Link] by defendant
• The requirement of prosecution by the
defendant involves two elements:
a. That the plaintiff was prosecuted and
b. That the defendant was the prosecutor.
• Prosecution means criminal proceedings (not
civil action) against a person in a court of law.
• The word ‘prosecution’ carries a wider sense
than a trial and includes criminal proceedings
by way of appeal, or revision.
Girija Prasad Sharma v. Umashankar Pathak
• If a person lodges knowingly false information with the
police naming the plaintiff as the accused and supports
the same by his false evidence before the police as also
in court, he will be held to be prosecutor in a suit for
malicious prosecution even though the court takes
cognizance of the case on police challan.
Proceedings before police is not a prosecution
Nagendra Nath Roy v. Basanta Das Bairagya
• Theft had been committed in the defendant’s house. He
informed the police and he suspected the plaintiff.
• Then police arrested and discharged because the police
report showed that he was no connected with the theft.
• Proceedings before police is not a prosecution.
Khagendra Nath v. Jabab Chandra
• Merely bringing the matter before the executive authority did not amount to
prosecution.
Gaya Prasad v. Bhagat Singh
• The defendant filed a complaint against the plaintiff before the police and
he supplied the false and concocted(fabricated) evidence to the police.
• Case filed against the plaintiff and he was arrested, remanded and released
on bail.
• After due enquiry the magistrate dismissed the criminal case. And the
plaintiff was acquitted from the charges.
• The court observed that the defendant know that charge is false and he
misleads the police by bringing fake witnesses to support it.
Mohammed Amin v. Jogendra Kumar
• It was held that where the magistrate takes cognizance of a complaint under
sec. 190 of Cr.P.C., examines the complainant on oath under sec.200, holds
an inquiry in open court under sec.202, which the plaintiff attends and
dismisses the complaints under sec.203, the prosecution is deemed to have
commenced so as to found an action for malicious prosecution.
Proceedings before a quasi-judicial authority
Kapoor Chand v. Jagdish Chand
• A complaint to Board of Ayurvedic and Unani System of
Medicines, Punjab, alleging that the respondent, who was practicing
as a Hakim, he was illiterate and he had obtained fabricated
certificate.
• But he was a qualified Hakim.
• Court held that the proceedings before the Board amounted to
prosecution.

2. Termination of proceedings in favour of plaintiff

• It is essential to show that the proceeding alleged to be instituted has
terminated in favour of the plaintiff.
• The prosecution must be completed against the plaintiff.
Reynolds v. Kennedy
• The prosecution results in conviction of the plaintiff then no suit
would lie against the defendant.
• Whether plaintiff was innocent or not is immaterial.
• A party who has been convicted will not be
permitted to say that his conviction has been the
result of fraud and that he did not really deserve the
punishment.
• There need not have been an acquittal on the
merit, it is enough if the prosecution has been
discontinued, or if the accused has been
discharged or if a conviction has been quashed
for some defect in the proceedings(Cr.P.C.) or if
the order granting sanction to prosecute is set
aside on appeal (HC/SC/Sessions court).
• The actual termination of criminal prosecution in
any manner in favour of the plaintiff of the suit.
Shiv Shankar Patil v. Phulki Bai
• The respondent faced criminal prosecution for 8 years
for theft of crops. Finally he was acquitted.
• Court held that the prosecution could be said to have
been launched with an intention which was wrongful
in point of fact and it satisfied all tests of malicious
prosecution.
• A compensation of Rs. 10,000/- was awarded for loss
of reputation and mental agony.
Hermiman v. Smith
• It was held that 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.
[Link] of reasonable and probable cause
• The prosecution was instituted against him without any reasonable
or probable cause.
• The plaintiff in an action for malicious prosecution must prove a
lack of reasonable and probable cause to initiate, instigate or
continue the prosecution on the part of the instigator or prosecutor.
• Plaintiff must give evidence.
Wyatt v. White
• The defendant, a miller noticed that plaintiff was a theft of sacks
belonging to him. The defendant noticed that the sacks belongs to
him was in plaintiff’s dock or store room.
• Defendant charged the plaintiff for theft before magistrate.
• Finally the plaintiff was acquitted.
• It was held that since some of the sacks observed by the defendant
were new, the defendant had reasonable and probable cause and
was, therefore, not liable.
Abrath v. Noth Eastern Railway Co.
• An accident occurred to one of their trains, causing serious injuries to several
persons.
• Railway company paid compensation to those who injured in the accident.
• ‘A’ was also claimed and obtained compensation.
• Subsequently the Railway co. got the information that injuries of ‘A’ were not
due to the train accident, but it was artificially created by one doctor [Link].
• Co. made enquiries and obtained legal advice – filed a case against [Link]
and ‘A’ for their conspiracy and frauding the company.
• Case was dismissed – Dr. and ‘A’ acquitted.
• The House of Lords held that the Railway Co. had taken reasonable care to
reveal the true facts and they honestly believed that the information obtained
was reliable. Therefore, they were held not liable.

4. Malicious intention
• The plaintiff has to prove that there was a malicious intention on the part of the
defendant in instituting proceedings against him.
• The concept of malicious intent appears in both criminal and civil cases.
• (Sec.211 of IPC – false charge of offence made with intent to injure – 2 years
imprisonment or with fine or with both)
Abdul Majid v. Harbansh Chaube
• The plaintiff was arrested and prosecuted for possession of property which is
recovered in the docoity case.
• The police station officer and two persons conspired and falsely stating that
the property was recovered from the plaintiff’s house.
• The court held that the police station officer and two persons conspired and
created a false/fabricated story and evidence against plaintiff.
• The police station officer and two persons liable for malicious prosecution.

Bhogilal v. Sarojbahen
• The defendant agreed to purchase the plaintiff’s house for Rs.15,000/- and
paid Rs.2,000/- as advance.
• Subsequently, the defendant discovered that plaintiff did not disclose the fact
that the house had already been mortgaged.
• Then defendant filed a criminal case of cheating against the plaintiff.
• But it was not mortgaged to anyone.
• It was held that under the circumstances of this case, it could not be said that
defendant was acting maliciously. He honestly believed that he had been
Padmanabhan Gangadharan v. Mathevan Gangadharan
• The plaintiff and defendants were doing business in adjoining rooms by the
side of a road.
• Defendant filed case – alleged that the plaintiff and others raided his
premises armed with weapons like sticks.
• Court issued the Warrant and he was arrested and released on bail. The
defendant withdraw his complaint against the plaintiff and he was
discharged by the court.
• The court held that the defendant filed a criminal case against the plaintiff
with malicious intention.
• The fact of the case clearly shows that he was acted intentionally. So the
defendant was held liable for malicious prosecution.

• It is not necessary that defendant acted malicious from the beginning of the
case. If the prosecutor is innocent in the beginning and becomes malicious
subsequently – then also it will consider as malicious prosecution.
5. damages
• It has also to be proved that the plaintiff has suffered damage
as a consequence of the prosecution.
• In a claim for malicious prosecution, the plaintiff can thus
claim damages on the 3 counts:
a. Damage to the plaintiff’s reputation in a society.
b. damage to plaintiff’s person (loss of life and liberty)
c. damage to plaintiff’s property. (Advocate and court expenses)

• In assessing damages, the court will take some rules of

common sense-
[Link] nature of the offence which the plaintiff was charged.
[Link] inconvenience to which the plaintiff was subjected.
[Link] loss.
[Link] status and position of the person prosecuted.
Sova Rani Dutta v. Debabrata Dutta
• The defendant filed a false FIR against the plaintiff,
alleging theft of her ear-ring.
• The defendant knew that the FIR was false.
• The plaintiff was acquitted.
• It was held that the defendant was liable for
malicious prosecution and the humiliation suffered
by the plaintiff due to his handcuffing.
In Re Sanjeevi Reddy case
• It was held that fees paid to the counsel in defending
the accused person in prosecution can also be
allowed as damages as such expenses are considered
to be a natural consequence of the prosecution.
 Malicious civil action or proceedings
• In malicious civil action – the defendant can get only a cost of
litigation.
• In exceptional cases, however, where the cost of litigation may
not adequately compensate the defendant, he can sue to recover
damages for the loss arising out of such civil proceedings.
e.g. 1. insolvency proceedings against a businessman.
2. winding up proceedings against a trading company.
Genu Ganapathi v. Balachand Jivraj
• In order to succeed in establishing malicious abuse of civil
proceedings, the plaintiff is required to prove some ingredients:
a. Malice must be proved.
[Link] plaintiff must allege and prove that the defendant acted
without reasonable and probable cause.
[Link] of proceedings in his favour.
[Link]
 Abuse of legal process
• Abuse of legal process is the malicious and improper use of some
regular legal proceedings to obtain an unfair advantage over an
opponent.
• It is a tort that involves ‘misuse of the public right of access to the
courts.’
• The use of legal process to accomplish an unlawful purpose causing a
summons, writ, warrant, direction, order or any other process to issue
from a court in order to accomplish some purpose not intended by the
law.
Elements in an abuse of legal process
a. the existence of an ulterior motive or purpose in using the process and
b. an act in the use of the process that is not proper in the regular
prosecution of the legal proceedings.
Filmistan Distributors (India) Ltd. v. Hansaben Baldevdas Sivalal
• An interim injunction was secured by the defendants apparently to
save themselves from loss, but used it to cause loss to the plaintiff.