MALICIOUS PROSECUTION
I. INTRODUCTION
Malicious prosecution means mischievous prosecution against the another person
for being prosecuted without any reasonable or probable cause that may cause the other
defending party loss of their privilege, financial and reputation. There are many jurist
who explained about malicious prosecution. “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.” In this offence the
primary motive of the person committing the offence is for their selfishness they want to
file a false suit on other without any reasonable cause. In Malicious Prosecution it is the
duty of the plaintiff to prove that the reasonable cause was not present and the reasonable
ground is not satisfied only then the damages can be recovered from the defendant.
ILLUSTRATION :
When Hari tells Shyam (the police officer) to arrest Raju, but Shyam mistakes and
arrest Ram instead of Raju. Hari tells Shyam to arrest even after knowing that Shyam is
not arresting Raju. In this case Hari will be held liable for committing the offence of
Malicious Prosecution.
II DEFINITION MALICIOUS PROSECUTION.
Malicious prosecution is an institution with malice against another of unsuccessful
criminal or bankruptcy without a reasonable cause. It has two competing principles,
namely the freedom that every person should have in bringing criminals to justice and the
need for restraining false accusations against innocent persons.
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In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, 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.”
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.”
III ORIGIN AND HISTORY OF MALICIOUS PROSECUTION
The history or the origin of malicious prosecution can be traced back to the writ of
conspiracy which was in existence as early as Edwards I's reign. Malicious prosecution
has its origin in England and evolved in 18th and 19th century. It was an outcome of
misusing the due procedure of law since 18th and 19th century in England. Later it spread
its wings across the globe, in different countries.
This was more witnessed in common wealth countries since they had a great influence of
the English laws in their countries. Malicious prosecution has also caught a very strong
footing in the United States, probably because of holding the persons liberty and
reputation in the highest regard.
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IV 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:-
1. Prosecution by the defendant.
2. Absence of reasonable and probable cause.
3. Defendant acted maliciously.
4. Termination of proceedings in the favour of the plaintiff.
5. Plaintiff suffered damage as a result of the prosecution.
1. Prosecution by the defendant
The plaintiff must prove that he (plaintiff) was prosecuted by the defendant as the first
necessary element in a claim for damages for malicious prosecution. The term
"prosecution" refers to a legal proceeding. Only hostile proceedings that are initiated in
a court of law and accepted for trial by the magistrate are taken into account. A criminal
prosecution should be brought against the plaintiff, who was a defendant in the original
case.
Nagendra Nath Ray Vs. Basanta Das Bairagya ( AIR 1930 Cal 392)
In this case, after the defendant's residence was broken into, he alerted the police that he
suspected the plaintiff with the theft. The plaintiff was then arrested by the police, but
was later released by the magistrate after the final police report revealed that there was no
evidence linking him to the theft. It was decided that a suit for malicious prosecution
could not be maintained because there was no prosecution at all, as police processes are
not the same as prosecution.
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When does the Prosecution commence : The Prosecution is not deemed to have
commenced before a person is summoned to answer a complaint. Kapoor Chand V.
Jagdish Chand in this case the Punjab and Haryana High Court has held that the
proceedings before the Board of Ayurvedic and Unani System of Medicines amount to
prosecution.
2. Absence of reasonable and probable cause
The complainant has the burden of proving that he is being pursued without
justification. The defendant must conduct in a prudent and reasonable manner. When the
defendant believes there are adequate reasons to prove that the plaintiff is guilty of the
crime, he or she will have reasonable cause. Malicious proceeding occurs when the
defendant knows there is no legitimate cause and has purposefully prosecuted the
plaintiff.
It doesn't matter if there was reasonable and probable cause if the prosecutor didn't
know about it. The withdrawal of a prosecution or the acquittal of an accused person does
not imply the absence of reasonable and probable cause. If a man chooses an indictment
with various accusations, some of which have probable cause and others do not, his guilt
for malicious prosecution is entire.
Abrath Vs. North Eastern Railway ([1883] 11 QBD 440)
This case established three principles that must be followed in order to develop a
reasonable and plausible cause:
i. The complainant has gone to great lengths to ensure that he or she is fully
informed of the facts.
ii. He honestly feels the facts on which he is basing his accusations are correct.
iii. The circumstances were such that they may be used as prima facie evidence.
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Another crucial factor in a lawsuit for damages for malicious prosecution is that
the plaintiff must show that the defendant prosecuted him intentionally rather than with
the sole goal of carrying out the law.
3. Malice
Another crucial factor in a complaint for damages for malicious prosecution is that
the plaintiff must show that the defendant acted deliberately in prosecuting him rather
than with a legitimate motive.The objective is to put the law into force. Malice does not
have to be a sentiment of hatred, spite, or ill will, nor does it have to be a spirit of
vengeance, but it can be any inappropriate motive that motivates the prosecutor, such as
gaining a private collateral advantage. Malice under malicious prosecution is a bad
purpose or malafide intention to prosecute someone unlawfully to cause him harm and
damage to his reputation, which can be the consequence of wrath or jealously. The
plaintiff must show that the defendant prosecuted him with the incorrect intent. If, on the
other hand, the defendant honestly believes the plaintiff is guilty and has prosecuted him
fairly, he will not be charged with malicious prosecution.
Allen Vs. Flood [(1898) AC 1]
In this case, a general rule was proposed that an act that is lawful in and of itself
does not automatically become unlawful due to the actor's ill motives, and some
Lordships in the House of Lords stated that malicious prosecution was not an exception
to this rule. The accepted norm is that the gist of a malicious prosecution action is malice,
which must be proven by the plaintiff in the first instance. The plaintiff bears the burden
of proving the existence of malice, i.e. the plaintiff bears the Burden of Proof.
Antarjami Sharma Vs. Padma Bewa (AIR 2007 Ori 107)
Plaintiff worked as a maid in the defendant's home in this case. Plaintiff filed a
complaint against defendant, alleging that he attempted to rape her while she was
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working in his home. The defendant was charged by the court of law as a result of this
allegation, which resulted in him and his reputation being harmed. He was acquitted,
however, due to a lack of proper evidence. He subsequently filed a lawsuit accusing the
plaintiff of malicious prosecution. In this instance, the court determined that the plaintiff
made a false statement against the defendant and was liable for damages.
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. Malice does not have to be a sentiment
of hatred, spite, or ill will, nor does it have to be a spirit of vengeance, but it can be any
inappropriate motive that motivates the prosecutor, such as gaining a private collateral
advantage.
Ram Lal Vs Mahendra Singh ( AIR 2008 Raj 8, (2008) 2 MLJ 349)
Ram Lal's son committed suicide in this case, and Ram Lal has filed a criminal
complaint against the defendant, alleging that he was the cause of his son's death. The
case dragged on for three years. The defendant was even detained for three months before
being found not guilty owing to a lack of evidence. The plaintiff was then sued for
malicious prosecution by the defendant. The plaintiff had even filed an appeal in the
Rajasthan High Court against the acquisition. Even though he died in the middle of the
case, his legal representatives maintained it, and the Rajasthan High Court ruled that the
plaintiff could not prove malicious prosecution because there was no malafide intent. The
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plaintiff had even filed an appeal against the acquisition in the Rajasthan High Court,
according to the court. Even though he died in the middle of the case, his legal
representatives maintained it, and the Rajasthan High Court ruled that the plaintiff could
not prove malicious prosecution because there was no malafide intent. “Merely because
the prosecution failed to prove the case beyond a reasonable doubt as required by
criminal law, the plaintiff was acquitted or discharged by the criminal court, it does not
mean that such acquittal or discharge could necessarily boomerang on the defendant as a
case for malicious prosecution,” the court said.
5. Damage has to be proved
For malicious prosecution to be carried out, the plaintiff must show in a court of
law that he has experienced harm as a result of the initial procedure. Despite the fact that
the case was settled in his favour, he has experienced losses as a result of the charges.
Damages can be claimed on the following grounds:
i. That the prosecution has caused him property damage.
ii. His reputation in society has been harmed as a result of the prosecution.
iii. That it has cost him inconvenience as well as financial loss.
Vishveshwar Shankarrao Deshmukh and Anr Vs. Narayan Vithoba Patil ( 2005 (2)
Bom CR 491)
Plaintiff was the Sarpanch of the village of Shirputi, and defendant No. 1 was a Gram
Sevak in the Zila Parishad's service, and defendant No. 2 was a teacher in a Zila Parishad-
run school. The plaintiff claimed that he filed many reports alleging the defendants'
wrongdoing. The report was filed against defendant No. 1 for misconduct, defalcation,
and account forgery, as well as a misdemeanour. It is alleged that both defendants then
devised a scheme to entrap the plaintiff in a criminal conspiracy, and that defendant No. 1
had filed an F.I.R. with the police after being assaulted by the plaintiff while performing
his duties. Criminal procedures were initiated against the plaintiff based on the F.I.R. and
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police investigation. The petitioner was found not guilty of the charges levelled against
him. The case was begun without any valid grounds, and as a result of the fraudulent
prosecution, his prestige and reputation were harmed, and his stature as a sarpanch and
politician was diminished in society. The court found that the defendants' prosecution
was made without reasonable and probable grounds and with a malafide motive, causing
harm to the plaintiff's reputation. Both defendants are obligated to compensate the
plaintiff for damages, according to the court.
V. MALICIOUS CIVIL PROCEEDINGS
In the case of Darbhangi Thakur v. Mahabir Prasad, (AIR 1917 Pat. 460) 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.
In the case of Genu Ganapati v. Bhalchand Jivraj (AIR 1981 Bom. 170.) it was held
that following are the essentials to establish malicious abuse of civil proceedings:-
i. Malice must be proved.
ii. The plaintiff must allege and prove that the defendant acted without reasonable
and probable clause and the entire proceedings against him have either terminated
in his favour or the process complained of has been superseded or discharged.
iii. The plaintiff must also prove that such civil proceedings have interfered with his
liberty or property or that such civil proceedings have affected or likely to affect
his reputation.
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Conclusion
The institution of a proceeding by a person against someone who has begun a
hostile proceeding against him in order to do him pain and damage is known as malicious
prosecution. Plaintiff must show that he was falsely prosecuted by the defendant without
any reasonable and probable grounds, and that the defendant has a malafide purpose to
harm plaintiff in order to bring the malicious prosecution. The plaintiff must be
discharged by the court before malicious prosecution can begin.
A malicious prosecution claim can arise from any malicious criminal procedure
that lacks probable cause, regardless of whether the claimant was tried or even indicted.
Suggestions
The government should bring strict laws to prevent from malicious prosecution
because no one can misuse the procedures of the law and they should be punished.
