Malicious Prosecution


Malicious Prosecution


  1. Introduction
  2. Definition and meaning
  3. Ingredients of malicious prosecution
  4. Institution of prior suit by defendant
  5. Without reasonable or probable cause
  6. Malicious intent
  7. Suit decided in favour of plaintiff
  8. Loss suffered by plaintiff
  9. Difference with abuse of process
  10. Remedy
  11. Cases
  12. Conclusion


1.              Introduction

Malicious prosecution is a common law concept that involves intentional institution of a false proceeding against someone without any probable ground of action and the court also finds out that such suit was merely an attempt of plaintiff to annoy, harass or intimidate the defendant by the misuse of process provided by law.

The wrongful suit instituted without any ground can be of criminal as well as civil nature.

2.              Definition and meaning

Georgia criminal law defines criminal prosecution an “act which is carried on maliciously and without probable cause.[i]

In India an attempt was made by the Hon’ble Supreme Court to define this term in case of West Bengal State Electricity Board v. Dilip Kumar Ray[1] as- “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.”

So, basically when the plaintiff prosecutes the defendant with a malicious intent in order to fulfil his ulterior motive which may be pecuniary or otherwise and the court also decides in favour of the defendant in such case, the defendant can then sue the plaintiff for the offence of malicious prosecution.

The ground for such right to sue is based on logic that because of that false case by plaintiff the defendant might have suffered a loss of his reputation or safety of his person or property in trying to defend himself.

3.        Ingredients of malicious prosecution

To prove the offence of malicious prosecution the plaintiff in subsequent suit has to prove the following ingredients:

a.               Institution of prior suit by defendant

It needs to be proved that the defendant in this subsequent suit must have prosecuted the plaintiff in a case earlier.


The defendant in this suit must have actively pursued the case and not been a mere spectator in that case. For this reason the case of malicious prosecution cannot be filed against the witness of the case.


The term prosecution includes an appeal or revision as well. So, even if the prosecution is based on a court order obtained by showing false evidence, this tort has been committed.[ii]


A matter before executive authority or a departmental enquiry do not constitute a prosecution and therefore do not form basis for this tort.[iii]

b.              Without reasonable or probable cause

The burden of proof is on the plaintiff that the defendant did not genuinely believe that the previous case filed by him was not based not sufficient grounds.


If the defendant while filing the previous suit had sufficient reasons to believe that his case against the defendant was genuine even though the court finds out that such belief of defendant was wrong, then suit for malicious prosecution does not lie.

c.               Malicious intent[iv]

Malice i.e wrongful intent of the defendant is an essential ingredient of this tort. It is not necessary that an ill will, spite or vengeance should be present.


Malicious intent may be to fulfil any selfish motive of the person, be it monetary or any other advantage.


An absence of probable or reasonable cause is sufficient to prove the malicious intent.[v]


Malice can also be developed during the pendency of prsecution and need not be present only at the beginning. So, even if the defendant reasonably believed at the time of institution of suit that the plaintiff is wrong but during pendency of suit he comes to know of his innocence but still he continuous with the suit, he will be liable for malicious prosecution.[vi]

d.              Suit decided in favour of plaintiff

The previous suit maliciously instituted by the defendant must have been decided in favour of the plaintiff. This simply means that the court must have recognised that the plaintiff was innocent.


Mere claim of plaintiff that he was innocent is not sufficient for the purpose of this tort.


However, mere acquittal of the defendant by the court is also not sufficient. The lack of reasonable and probable cause should also accompany the acquittal of plaintiff by the court.

e.               Loss suffered by plaintiff[vii]

Apart from all the above ingredients, the plaintiff also needs to prove that even after the acquittal by the court he has suffered reasonable damage because of the false prosecution.


The damage that the plaintiff may have suffered apart from the monetary damage can be categorised as:

  • Loss of fame/reputation that plaintiff suffered among the members of his society because of the false prosecution.


  • Loss of credit of plaintiff due to such prosecution.


  • Humiliation that he may have faced during the continuance of prosecution.


  • His mental anxiety plaintiff must have faced due to the false prosecution.


  • The danger that may have been imposed on life, limb or liberty of plaintiff.


  • The danger that may have been imposed on the property of the plaintiff because of such false prosecution.


It is also important that such damage caused to plaintiff should have been a probable result of the prosecution and not otherwise. If the damage caused is found to be too remote to be caused as a result of probable cause of malafide prosecution then this tort is not committed.

In order to find such direct relation of prosecution and damage, following ingredients need to be analysed-

  • The status of person prosecuted in the society


  • The nature of offence for which he was charged


  • The inconvenience caused to plaintiff


  • Monetary loss that he may have suffered.

4.        Difference with abuse of process

While deciding in the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Hon’ble Supreme Court also differentiated between malicious prosecution and abuse of process.

It was held by Hon’ble court that “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.”

So, even though these two terms appear to have similar meaning but following differences exit between them-

  Malicious Prosecution Abuse of Process
1. The claim for this tort can be made only after the successful termination of suit in favour of defendant i.e. the plaintiff in suit for malicious prosecution. The claim for abuse of process can be made even at first instance when the false suit if filed with the wrongful intention to obtain benefits for which that system has not been legally made.
2. The entire prosecution needs to be proved illegitimate to prove this tort. Entire prosecution need not be illegitimate. Merely a malicious disposition can also become ground for this tort.
3. The primary motive is to harass the person for the fulfilment of some selfish objective and so institution of an entirely false suit without any reasonable or probable cause. The motive behind abuse of process is to start a legal process to get some result for which such legal process is not meant.


5.        Remedy

The remedy for the tort of malicious prosecution, like any other tort, is damages.

The plaintiff can claim two types of damages for the loss caused to him-

  • Compensatory damages
  • Punitive damages

The losses for which damages can be claimed include the following –

  • Mental agony
  • Lost source of income
  • Loss of reputation
  • Loss of potential of future earnings
  • Attorney fee
  • Court fee
  • Additional costs for loss of household like childcare etc.

The losses that the plaintiff may have suffered may differ from case to case and so the damages need to be accessed on case to case basis.

6.        Cases

·       Hicks v. Faulkner (1878) 8 QBD 167

The defendant had prosecuted the plaintiff under an honest belief that plaintiff had actually done the wrong. But it was found that the defendant’s such belief was because of loss of memory and that he had he initiated the prosecution in in honestly mistaken belief.

The defendant was held not liable as there was reasonable and probable cause for the prosecution.

The Queen’s Court in this case defined the phrase reasonable and probable cause as “An honest belief in the guilt of the accused… founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”.

·       Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd., A.I.R. 1992 Delhi 275

In this case the plaintiff was prosecuted under S. 403 of IPC. It was found that the said prosecution was based on fact that the defendant’s officials while preparing the inventory had noted some missing items.

So, on an honest belief the plaintiff was prosecuted but never harassed.

The court found out that the plaintiff was innocent but still could not persue the case for malicious prosecution because the defendants prosecution was based on reasonable and probable cause and not to harass the plaintiff.

·       Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil, 2005 (2) Bom CR 491

The plaintiff in this case was a sarpanch of a village and had made certain reports against the defendants for their misconduct in performance of their duties as a teacher of Zila Parishad and Gram Sewak.

The defendants conspired against the plaintiff and one of the defendants lodged a false FIR against plaintiff for assaulting him while he was performing his duties.

The police arrested the plaintiff and he was prosecuted for the charges made as a result of that false FIR.

The plaintiff was found innocent and that the prosecution was made without any reasonable or probable cause.

So, the defendants were held liable for malicious prosecution and made to pay damages worth Rs. 12500 to the plaintiff for loss of his reputation as sarpanch and politician.

·       Ram v. Madan Gupta (2007)[viii]

In this case the defendant had falsely charged the plaintiff for setting up fire on his house.

The plaintiff was found to be innocent and that the defendant could not have sufficient and probable cause to accuse the plaintiff.

The plaintiff was therefore awarded damages worth Rs. 55,000 for mental agony, loss of reputation and business and for litigation expenses.

7.        Conclusion

Hence, malicious prosecution is a tort in which a person can sue the other for prosecuting him in a false case because of which he had to go through the loss which would have not otherwise caused to him.

This tort is based on the principal that legal procedures are meant to provide remedy to the aggrieved parties and not to harass and annoy the innocent people.

So, if the legal procedure is used by someone in order to fulfil their evil motives and to get some undue advantage, they must be treated as wrongdoers and should be made to compensate the loss caused to plaintiff because of their evil intentions.


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