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Essentials of Malicious Prosecution in Tort Law

Essentials of Malicious Prosecution in Tort Law
Essentials of Malicious Prosecution in Tort Law


Malicious Prosecution

Malicious prosecution entails the commencement of criminal proceedings maliciously and without reasonable or probable cause, resulting in harm to the accused party. This constitutes a tort for which the aggrieved party may seek legal redress.

The legal framework permits individuals to bring wrongdoers to justice through lawful prosecution. However, if this authority is abused by wrongfully initiating legal proceedings for improper motives, the law discourages such behaviour. To safeguard against false accusations and protect the innocent, actions for malicious prosecution are sanctioned.

"In an action for malicious prosecution, the plaintiff must demonstrate, firstly, their innocence, validated by the tribunal presiding over the accusation; secondly, the absence of reasonable and probable cause for the prosecution, or, alternatively, circumstances that render reasonable and probable cause untenable in the eyes of the judiciary; and finally, that the proceedings in question were instigated with malicious intent, motivated by ulterior and unjustifiable motives rather than the pursuit of justice."

In a suit seeking damages for malicious prosecution, the plaintiff must establish the following prerequisites:

1. The defendant initiated prosecution against the plaintiff.

2. The prosecution lacked reasonable or probable cause.

3. The defendant acted with malice, not merely intending to enforce the law.

4. The proceedings concluded in favour of the plaintiff.

5. The plaintiff suffered damages as a consequence of the prosecution.


Prosecution by the Defendant

This crucial aspect necessitates evidence for two elements:

(i) the presence of a "prosecution," and

(ii) its initiation by the defendant.

The term "prosecution" specifically refers to criminal proceedings, as opposed to civil actions. It denotes legal proceedings against an individual in a court of law, typically involving a criminal charge brought before a judicial officer or tribunal.

It's important to note that proceedings before police authorities do not constitute prosecution; rather, they precede it.

For instance, in the case of Nagendra Nath Ray v. Basanta Das Bairagya, following a theft at the defendant's residence, he notified the police of his suspicion regarding the plaintiff's involvement. Subsequently, the plaintiff was apprehended by the police but was later released by the magistrate due to lack of evidence linking him to the theft.

In a subsequent suit for malicious prosecution, it was ruled that the claim was not tenable since there was no prosecution; mere involvement of the police does not equate to prosecution.

A similar ruling was made in Bolandanda Pemmayya v. Ayaradara. In this instance, the defendant lodged a complaint with the Sub-Inspector of Police, alleging theft of cardamom and fish traps by the plaintiff. 

However, after investigation, the Sub-Inspector determined the complaint to be false and filed it accordingly. The plaintiff then sued for damages for malicious prosecution. The court held that the mere submission of a complaint to the police, without any ensuing legal action before a judicial authority, does not constitute prosecution. Consequently, the plaintiff's suit was dismissed.

"To prosecute is to initiate legal action, and such action is only commenced through an appeal to an individual vested with judicial authority over the matter at hand."

The commencement of prosecution occurs when an individual is summoned to respond to a complaint. For instance, in the case of Khagendra Nath v. Jabob Chandra, where a complaint was lodged alleging that the plaintiff unlawfully took the defendant's bullock cart, and a request was made for action to be taken. 

However, the plaintiff was neither arrested nor prosecuted. The court held that merely presenting the matter before the executive authority did not constitute prosecution, thus precluding a claim for malicious prosecution.

Similarly, prosecution does not commence when a magistrate issues only a notice, rather than a summons, to the accused upon receiving a complaint of defamation, and subsequently dismisses it after hearing both parties.

In such instances, without the issuance of a summons and the initiation of formal legal proceedings, prosecution does not commence.

Prosecution Initiated by the Defendant

For a claim of malicious prosecution, it is essential that the prosecution be initiated by the defendant.

A prosecutor is an individual who actively contributes to enforcing the law against another. Although criminal proceedings are conducted in the name of the State, for the purposes of malicious prosecution, a prosecutor is considered the person who instigates the proceedings. 

In Balbhaddar v. Badri Sah, the Privy Council asserted that in jurisdictions where prosecution is not private, an action for malicious prosecution, strictly speaking, cannot be brought against a private individual.

However, providing information to authorities that leads to prosecution is equivalent to instigating it. Therefore, if such actions cause trouble, a legal action can be pursued.

Merely reporting an offence to the police, even if the information is false, does not automatically give rise to a claim for malicious prosecution unless it can be proven that the defendant actively participated in the prosecution and was primarily responsible for it.

In the case of Dattatraya Pandurang Datar v. Hari Keshav, the defendant filed a first information report (FIR) with the police regarding theft at his shop, naming the plaintiff as the suspect. However, it was determined that the defendant's actions were limited to providing information to the police, and he did not actively participate in the prosecution. Therefore, the essential element of the plaintiff being prosecuted by the defendant could not be established.

Similarly, in Pannalal v. Shrikrishna, the defendants were sued for malicious prosecution after the plaintiffs were acquitted of charges related to a reported dacoity. However, the court held that the defendants' actions were limited to providing information to the police, and they did not actively engage in prosecuting the plaintiffs.

To be considered a prosecutor for the purpose of liability for malicious prosecution, a private individual must do more than simply lodge a complaint with the police. They must actively contribute to the proceedings and make efforts to secure the plaintiff's conviction.

Without evidence of active involvement in the prosecution, a private individual cannot be held liable for malicious prosecution.


Absence of Reasonable and Probable Cause

The plaintiff must also demonstrate that the defendant prosecuted them without reasonable and probable cause. Reasonable and probable cause is defined as

"an honest belief in the guilt of the accused, supported by reasonable grounds, based on circumstances that, if true, would lead an ordinarily prudent person in the accused's position to conclude that the person charged was likely guilty of the alleged crime."

Reasonable and probable cause exists when the defendant has sufficient grounds to believe that the plaintiff was likely guilty of the alleged crime. The prosecutor does not need to be convinced of the guilt or the viability of the criminal proceedings before filing a complaint. It is enough that they believe there is a valid case to bring before the court.

In Satyakam v. Dallu, the defendant filed a complaint against the plaintiff for professional misconduct before the Bar Council. However, the court found that there was some connection between the two litigations, justifying the defendant's actions and dismissing the claim of malicious prosecution.

Similarly, in Wyatt v. White, the defendant charged the plaintiff with theft based on the belief that some sacks observed on the plaintiff's property belonged to him. The plaintiff was acquitted, but the court held that since some of the sacks were new and bore the defendant's mark, there was reasonable and probable cause for the prosecution.

In Abrath v. North Eastern Railway Co., the railway company prosecuted Dr. Abrath for conspiring to defraud them, based on information received about artificially created injuries. Despite Dr. Abrath's acquittal, the court found that the railway company had taken reasonable care to inform itself of the facts and honestly believed in their allegations, thus absolving them of liability for malicious prosecution.

If there is reasonable and probable cause for prosecution, malice becomes immaterial because the existence of reasonable cause in the prosecutor's mind is a sufficient defence. However, the absence of reasonable and probable cause to a significant degree may render the prosecutor liable for malicious prosecution.

The prosecutor's belief in the charges must be based on reasonable grounds arrived at after due inquiry. Both subjective belief and objective reasonableness are essential aspects of the test for reasonable and probable cause. The belief must be honest and based on grounds that are reasonable and arrived at after appropriate investigation.


Termination of Proceedings in Favour of the Plaintiff

It is crucial that the prosecution concludes in favour of the plaintiff. If the plaintiff is convicted by a court, they cannot pursue an action for malicious prosecution, even if they can establish their innocence and demonstrate that the accusation was malicious and unfounded.

However, termination in favour of the plaintiff does not necessarily mean a judicial determination of innocence; rather, it signifies the absence of a judicial determination of guilt. Proceedings are considered to have terminated in favour of the plaintiff when they do not result in conviction.

This includes situations where the plaintiff is acquitted on a technicality, the conviction is quashed, the prosecution is discontinued, or the accused is discharged.

In cases where the prosecution initially results in a conviction at a lower level but is later reversed on appeal, the question arises whether an action for malicious prosecution can be pursued.

While there have been conflicting opinions on this matter, the prevailing view suggests that if the proceedings terminate in favour of the plaintiff upon appeal, they have grounds for a cause of action.


Damage is a crucial element that must be proven in a claim for malicious prosecution. Even if the proceedings end in favour of the plaintiff, they may still have suffered damage as a consequence of the prosecution. 

In Mohammed Amin v. Jogendra Kumar, the Privy Council emphasised that the test for determining an action for damages for malicious prosecution is not whether the criminal proceedings have reached a specific stage, but rather whether they have reached a stage resulting in damage to the plaintiff.

Damage resulting from a malicious prosecution can manifest in various ways, as articulated by Holt, CJ in Savile v. Robert: damage to reputation, harm to the person, and injury to property. Thus, in a claim for malicious prosecution, the plaintiff can seek damages on these three grounds: damage to reputation, damage to person, and damage to property.

A false accusation of a criminal offence inherently tarnishes one's reputation. Additionally, harm to the person may occur through arrest, deprivation of liberty, and mental stress. Injury to property may also result as the accused may incur expenses for their defence.

When assessing damages, the court will consider several factors, including the nature of the offence, the inconvenience suffered by the plaintiff, monetary losses, and the status and position of the individual prosecuted. Ultimately, the court will rely on common sense principles to determine the appropriate level of damages in each case.


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