Malicious Prosecution

CLAT Study Material: Law of Torts

Malicious Prosecution

Law of Torts for CLAT and other law entrance exams

Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against an innocent person without reasonable or probable cause and a malicious spirit. 

Generally, it can be said that malicious prosecution is defined as a judicial proceeding instituted by one person against another, from a wrongful or improper motive, without any reasonable and probable cause to justify it.

For example:

A (State of Haryana) v. B (a person)

A filed a criminal case on B, but in this case, the court acquitted B on merits because the State of Haryana was unable to give evidence against B. Then, B filed a subsequent suit against the state of Haryana and in this suit, B said that the first criminal case was filed maliciously against me, which caused harm to my reputation. 

So here in such a case, B will be entitled to get the compensation on the basis of the institution of the first suit maliciously.

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. Prosecution should have been started with a malicious intention.

4. Termination of proceedings in the favour of the plaintiff.

5. Plaintiff suffered damage as a result of the prosecution.

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 by making a false report. 

The word “prosecution” carries a wider sense than a trial and includes criminal proceedings by way of appeal, or revision and sending an innocent person for trial before the criminal court.

In the case of Khagendra Nath v. Jacob Chandra

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.

Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff is also required to prove that the defendant prosecuted him without reasonable and probable cause.

The question relating to the want of reasonable and probable cause in a suit for malicious prosecution should be decided on all facts before the court.

In the case of Antarajami Sharma v. Padma Bewa

It has been said that law is settled that in a case of damages for malicious prosecution, the burden of proof of the absence of reasonable and probable clause rests on the plaintiff.

Malicious Intention

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. 

In malicious prosecution malice in law, that is, a wrongful act done intentionally without just cause or excuse is not necessary, but malice, in fact, indicating that the party was actuated by spite or ill-will towards an individual or by indirect or improper motive is essential. 

“Malice is a wish to injure the party rather than to vindicate the law.” 

To sustain malice the charge must be wilfully false. Malice in its legal sense means malice as may be assumed from doing a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

Favourable Termination of Proceedings

The plaintiff must show that the prosecution ended in his favour. If proceedings did end in his favour, it is of no importance how they did so, whether by a verdict of acquittal, or by the discontinuance of the prosecution by leave of the Court or by quashing the indictment for a defect in it, or because proceedings were coram non judice or by non-suit, if the order granting sanction to prosecute is set aside on appeal.

What is necessary is the actual termination of the criminal prosecution in any manner in favour of the plaintiff of the suit.

Plaintiff suffered damage as a result of the prosecution

In a suit for damages for malicious prosecution, it is another essential element, which is, the plaintiff is required to prove that the plaintiff suffered damage as a result of the prosecution. 

In a claim for prosecution, the plaintiff can thus claim damages on the following three counts:

1. Damage to the plaintiff’s reputation (as where the matter he is accused of, is scandalous).

2. Damage to the plaintiff’s person ( any person related to the plaintiff if put in danger of losing his life or property or suffers any harm due to that prosecution).

3. Damage to the plaintiff’s property (as where he is obliged to spend money is necessary to acquit himself of the crime of which he is accused, where the proceedings taken are not criminal proceedings, under Bankruptcy Law or Legal Practitioners Act or Municipal Act, special damages have to be proved.

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.

In the case of Genu Ganapati v. Bhalchand Jivraj

It was held that the following are the essentials to establish malicious abuse of civil proceedings:  

1. Malice must be proved.

2. The plaintiff must allege and prove that the defendant acted without a reasonable and probable clause and the entire proceedings against him have either terminated in his (plaintiff) favour or the process complained of has been discharged.

3. 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.

Conclusion

It can be said that malicious proceedings are proceedings that are initiated with malicious intent. The elements (i.e. prosecution by the defendant, absence of reasonable and probable cause, malicious intention, termination of proceedings in the favour of the plaintiff and plaintiff suffered damage as a result of the prosecution) which are necessary to the plaintiff to prove in a suit for damages for malicious prosecution must be fulfilled.

However, on the basis of the facts and circumstances, the Court should decide whether the suit is filed maliciously or not.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach him at Instagram @shivaanshvermaa