MALICIOUS PROSECUTION

• Malicious prosecution comprises the instituting of an unsuccessful

criminal proceeding maliciously and without a reasonable & probable
cause.”
• When such prosecution causes actual damage to the party prosecuted,
it is a tort for which he can bring an action.
• Malicious prosecution is an abuse of the process of the court by
wrongfully setting the law in motion on a criminal charge.

9/3/20XX Presentation Title 1

• In the case of West Bengal State Electricity Board v. Dilip Kumar Ray,
[AIR 2007 SC 976] the Court defined the term “malicious prosecution” in
the following words:-
• “A judicial proceeding instituted by one person against another, from
wrongful or improper motive and without probable cause to sustain it is a
malicious prosecution.”

9/3/20XX Presentation Title 2

• The Court in the same case laid down the distinction between “an action
for malicious prosecution” and “an action for abuse of process” in the
following words:- “A malicious prosecution consists in maliciously
causing process to be issued, whereas an abuse of process is the
employment of legal process for some purpose other than that which it was
intended by the law to affect the improper use of a regularly issued
process.”

9/3/20XX Presentation Title 3

ESSENTIAL ELEMENTS OF
MALICIOUS PROSECUTION
• Following are the essential elements which the plaintiff is required to
prove in a suit for damages for malicious prosecution:
• Prosecution by the defendant
• Absence of reasonable and probable cause
• Defendant acted maliciously.
• Termination of proceedings in the favour of the plaintiff.
• Plaintiff suffered damage as a result of the prosecution.

9/3/20XX Presentation Title 4

1. Prosecution by the defendant

• The first essential element which the plaintiff is required to prove in a

suit for damages for malicious prosecution is that he (plaintiff) was
prosecuted by the defendant.
• It should be a criminal prosecution rather than a civil action.
Prosecution means criminal proceedings against a person in a court of
law. A prosecution is there when a criminal charge is made before a
judicial officer or a tribunal.
• The word “prosecution” carries a wider sense than a trial and includes
criminal proceedings by way of appeal, or revision.
9/3/20XX Presentation Title 5
• In the case of Khagendra Nath v. Jacob Chandra,[1976 Assam
L.R. 379] the Court held that merely bringing the matter before the
executive authority did not amount to prosecution and, therefore, the
action for malicious prosecution could not be maintained.
• It is significant to note that departmental enquiry by disciplinary authority
cannot be called prosecution.

9/3/20XX Presentation Title 6

• In Bolandanda Pemmayya v. Ayaradara (1966) In that case, the
defendant filed a complaint before the Sub-Inspector of Police alleging that
the plaintiff had committed theft of cardamom and fish traps. The Sub-
Inspector recorded the statements of both the plaintiff and the defendant
and also made a search of the plaintiff's house. He then made a note on the
complaint that it was false and filed it. The plaintiff filed a suit against the
defendant to claim damages for malicious prosecution. It was held that
mere filing of a complaint before the police, where such complaint is
ordered to be filed in that office only and no judicial authority is set in
motion as consequence of such complaint does not amount to
prosecution. The suit of the plaintiff was, therefore, dismissed.

9/3/20XX Presentation Title 7

• Prosecution should be instituted by the defendant
• A prosecutor is a man who is actively instrumental in putting the law in
force for prosecuting another. Although criminal proceedings are
conducted in the name of the State but for the purpose of malicious
prosecution, a prosecutor is the person who instigates the proceedings.

9/3/20XX Presentation Title 8

• In order that a private person can be termed as prosecutor for the purpose
of his liability for malicious prosecution, he must have done something
more than merely lodging the complaint with the police for some defence.
He must have been actively instrumental in the proceedings and must have
made his best efforts to see that the plaintiff is convicted for the offence.

9/3/20XX Presentation Title 9

2. 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. {Hicks
v. Faulker [(1878) 8 QBD 171]}

9/3/20XX Presentation Title 10

• In a suit for damages for malicious prosecution, the plaintiff has also
required to prove that the defendant prosecuted him without reasonable
and probable cause. The question relating to want of reasonable and
probable cause in a suit for malicious prosecution should be decided on all
facts before the Court.

9/3/20XX Presentation Title 11

• In Shiv Shankar Patel v. Smt. Phulki Bai (2007) the respondents were to
face criminal prosecution for 8 years for alleged theft of crops, which
revealed to have been harvested and sown by the respondents belonging to
the husband of the respondent. Prosecution ended in acquittal. It was said
to have been launched not with the intention of carrying law into effect,
but with an intention which was wrongful in point of fact, the respondents
were awarded compensation of Rs. 10,000/- for the suffered loss of
reputation in their society and also suffered mental agony.

9/3/20XX Presentation Title 12

3. Defendant acted maliciously

• In a suit for damages for malicious prosecution, it is another essential

element which the plaintiff is required to prove that the defendant acted
maliciously in prosecuting him and not with a mere intention of carrying the
law into effect.
• 'Malice' means the presence of some improper and wrongful motive, that is
to say, an intent to use the legal process in question for some other than its
legally appointed or appropriate purpose. Apart from showing that there was
absence of reasonable and probable cause, it is also to be proved that the
proceedings were initiated with a malicious spirit, that is, from an indirect
and improper motive, and not in furtherance of justice.
9/3/20XX Presentation Title 13
4. Termination of proceeding in favour of
Plaintiff
• The plaintiff, who has been wrongfully accused of an offence, should be
acquitted by a court of law in order to start a malicious proceeding lawsuit.
• Only after the plaintiff has been acquitted by a court of law may he bring a
lawsuit for malicious prosecution, and he must show in court that the original
case was dismissed in his favour. It is necessary to establish that the
proceedings complained of ended in the plaintiff's favour in order to recover
damages for malicious prosecution.
• Termination in the plaintiff's favour does not imply a judicial decision of
his innocence; rather, it implies that no judicial determination of his guilt
has been made.
9/3/20XX Presentation Title 14
5. Damages

• It has also to be proved that the plaintiff has suffered damage as a consequence
of the prosecution complained of. Even though the proceedings terminate
in favour of the plaintiff, he may have suffered damage as a result of the
prosecution.
• As observed by Holt, C.J. in Savile v. Robert, three fold damage may be
caused to the plaintiff as a result of the prosecution : "First, damages to man's
fame as if the matter whereof he is accused is scandalous; second, damage to
the person, as where a man is put in danger to lose his life, or liberty; and
third, damage to his property, as where he is forced to expend his money in
necessary charges to acquit himself of the crime of which he is accused."

9/3/20XX Presentation Title 15

• In a claim for malicious prosecution, the plaintiff can thus claim damages
on the following three counts : (1) Damage to the plaintiff's reputation;
(2) Damage to plaintiff's person; (3) Damage to plaintiff's property.
• In assessing damages, the court, to some extent, will have to rely on the
rules of common sense. Over and above that, the court will have to
consider :

• (1) the nature of the offence which the plaintiff was charged of,
• (2) the inconvenience to which the plaintiff was subjected to,
• (3) monetary loss, and
• 4) the status and position of the person prosecuted.

9/3/20XX Presentation Title 16

MALICIOUS CIVIL PROCEEDINGS

• In the case of Darbhangi Thakur v. Mahabir Prasad, it was held

that unlike malicious criminal prosecution, no action can be brought,
as a general rule, in the case of civil proceedings even though the same
are malicious and have been brought without any reasonable cause.

9/3/20XX Presentation Title 17