• Mr. Mir Adil Rashid

Understanding the tort of 'Malicious Prosecution'


Malicious prosecution is defined as “a judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it”. 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 accusations against innocent persons. The foundation of the action lies in the 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. In an action for malicious prosecution plaintiff must prove:

  1. That he was prosecuted by the defendant,

  2. That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating,

  3. That the prosecution was instituted against him without any reasonable or probable cause,

  4. That the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact,

  5. That he has suffered damage to his reputation or to the safety of the person, or to the security of his property.

  • Prosecution by the defendant

This essential ingredient requires the proof of two essential elements, i) That there was a prosecution, ii) the same was instituted by the defendant.

i) Prosecution- Here, prosecution involves a criminal prosecution instead of any civil proceeding. The word "prosecution" carries a wider sense than a trial and includes criminal proceedings by way of appeal, or revision. A prosecution is there when a criminal charge is made before a judicial officer or tribunal. The mere setting of the law in motion is not the criterion; the conduct of the complainant, before and after making the charge, is also taken into consideration. Criminal charges should be made before a judicial officer or a tribunal. Proceeding before the police authorities are not considered a prosecution. In Nagendra Nath Ray v. Basanta Das Bairagya, after a theft had been committed in the defendant’s house, he informed the police that he suspected the plaintiff of the same. Thus, the plaintiff was arrested by the police but subsequently discharged by the magistrate as the final police report showed no evidence connecting the plaintiff with the theft. In a suit for malicious prosecution, it was held that it was not maintainable because there was no prosecution at all as mere police proceeding are not the same things as the prosecution.

In Khagendra Nath v. Jabob Chandra, it was observed that merely bringing matter before the executive authority did not amount to prosecution and therefore, the action for malicious prosecution could not be maintained. Some similar observation was also seen in Sheikh Meeram Sahib v. Ratnavelu Mudali case. It laid down that there is no commencement of prosecution when the magistrate issues only notice and not a summons to the accused on receiving a complaint of defamation and subsequently dismisses it after hearing both the parties. Thus, a prosecution is not deemed to have commenced before a person is summoned to answer a complaint.

ii) Prosecution instituted by Defendant- It is often seen that the entire machinery of the police, witnesses and even the court staff are counted in the line of the prosecutor. Thus, it becomes essential to know who the actual prosecutor will be here. Though the criminal proceedings are conducted in the name of the state for purpose of malicious prosecution, a prosecutor is a person who instigate the proceedings and who has been actively instrumental in putting the law in force for prosecuting another. In Ramesh Chandra v. Jagannath, it was seen that mere giving of information to the police can’t give rise to the cause of action to the plaintiff in a suit for malicious prosecution. It was held in this case that the defendant didn’t actively participate in the proceeding of the case but merely report the same to the police. So, he can’t be termed as a prosecutor. In order to hold a private person as a prosecutor, he must have done something more than merely lodging the complaint with the police. He must have made his best efforts to see that the plaintiff is convicted for the offence.

In Gaya Prasad v. Bhagat Singh, the privy council pointed out that the conduct of the complainant before and after the complaint has to be taken into account to determine whether he is the real prosecutor or not. If the complainant knowing that the charge is false, tries to mislead the police by procuring false evidence for the conviction of the accused, he would be considered as a prosecutor for the purpose of malicious prosecution.

  • Absence of reasonable and probable cause

After proving that defendant was prosecutor in filing a case against plaintiff, the plaintiff must prove, thereafter, that the case filed by defendant was unreasonable and without any probable cause. A reasonable and probable cause has been defined in Hicks v. Faulker as “an honest belief in the guilt of the accused upon a full conviction, founded upon reasonable ground, of the existence of circumstances, which assuming them to be true would reasonably lead any ordinarily prudent man placed in a position of the accused to the conclusion that the person charged was probably guilty of crime imputed.”

In Glinski v. Melver, it was stated that reasonable and probable cause means “that there must be cause for thinking that the plaintiff was probably guilty of the crime imputed”.

In Manik Das v. Subal Chandra Dhar, it was held that “absence of reasonable and probable cause of the criminal prosecution must also to be established as it must be shown that the defendants instituted the prosecution maliciously for which the plaintiff suffered damages”.

In Abrath v. North Eastern Railway the court laid down three principles necessary to form a reasonable & probable cause:

  1. Person complaining took due care to be informed of the facts,

  2. He honestly believed his allegations to be true,

  3. The facts were such as to constitute prima facie.

The burden of proof lies on the plaintiff to show that there was an absence of reasonable and probable cause. But if the defendant has a probable and reasonable cause for setting the criminal law in motion then the mere fact that he might have pursued a civil remedy can’t render him liable for the malicious prosecution.

  • Malice

To justify malicious prosecution, the plaintiff needs to establish that there was a prosecution against him initiated by the defendant without any probable and reasonable cause along with malice in the intention of the defendant. The term malice denotes that the party is actuated by improper and indirect motive. Along with unreasonable and without any probable cause for the prosecution, it must be proved that there was malice or wrongful motive on part of the defendant. The prosecution must have launched to injure the plaintiff rather than to vindicate the law.

In Abdul Majid v. Harbansh Chaube, the plaintiff was prosecuted for an offence under section 412, Indian Penal Code, for being in possession of a ‘hansuli’ removed in a dacoity case. Defendant No.1, the Station Officer of the police station, had conspired with two other defendants in concocting the story against the plaintiff’s house. The plaintiff was given the benefit of the doubt and acquitted of the charges. In an action by the plaintiff for malicious prosecution, it was found that the defendants were actuated by the wrong and indirect motive to prosecute the plaintiff and that is why they had prosecuted him on the basis of a concocted story against him. The defendants were held liable.

Malice means a prosecution inspired by some motive of which of the law disapproves. Malice includes any other improper purpose motivating the prosecutor, such as, to gain a private collateral advantage, and an indirect motive, that is, some motive other than a desire to vindicate public justice or private right.

Malice has been kept separate from lack of reasonable and probable cause. A person may be actuated by malice and yet he may have a reasonable and probable cause. Prosecution doesn’t become maliciously merely because it is inspired by anger, some of items of evidence usually relied upon for providing malice are haste, recklessness, omission to make due and improper enquiries, spirit of retaliation and long-standing enmity.

In Ram Lal v. Mahender Singh, it was held that “merely because plaintiff came to be acquittal or discharged from the criminal court as the prosecution failed to prove the case beyond doubt as is required in criminal law does not mean that discharge could necessarily boomerang upon the defendant as a case for malicious prosecution. Malice may be proved by previously stained relations, unreasonable and improper conduct like adverting the charge or getting up false evidence.

  • Termination of proceeding in favour of the plaintiff-

in order to make a suit for damages for malicious prosecution against the defendant, it is requisite that the proceeding terminates in favour of the plaintiff. On conviction, the plaintiff has no right to make a suit for malicious prosecution. Termination in favour of the plaintiff doesn’t mean the judicial determination of his innocence, it means the absence of a judicial determination of his guilt. Proceeding terminate in favour of plaintiff if he has been acquitted on technicality, conviction has been quashed or the prosecution has been discontinued or the accused is discharged.

Also, when a plaintiff is convicted by a lower court but the same is reversed and proceeding terminate in favour of plaintiff by the higher court, the plaintiff will have right to make a suit for malicious prosecution. But if there is no provision of appeal against the decision of a court, the right for the action of malicious prosecution will not be provided, in case of conviction.

In Gilding v. Eyer, it was observed that no action be brought when the proceeding is still pending. It is a rule of law that no one shall be allowed to allege of a still-pending suit that it is unjust.

  • Damage

To justify the suit for malicious prosecution it must be proven that a prosecution, with a malice intention, was instituted by the defendant without any probable cause and reasonable ground and the same proceeding terminate in favour of the plaintiff and subsequently, the plaintiff suffers damages as a consequence of the prosecution complained.

In Savile v. Robert, Holt, C.J. observed that there are three-fold damages which may be caused to the plaintiff as a result of prosecution:

“First, damages to man’s fame as if the matter whereof he is accused is scandalous; Second, damage to 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.”

Therefore, the plaintiff can claim damages on the following grounds:

  1. Damages to the plaintiff’s reputation,

  2. Damages to plaintiff’s person,

  3. Damages to plaintiff’s property.

  4. The damage must also be the reasonable and probable result of malicious prosecution and not too remote. In assessing damages, the court has to consider-

  5. The nature of offence which the plaintiff was charged with,

  6. The inconvenience to which the plaintiff was subjected to,

  7. Monetary loss

  8. The status and position of the person prosecuted.

The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.

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