CHAPTER 23

MALICIOUS PROSECUTION

1. Introduction

Define 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.

2. Following are the essential conditions that plaintiff has to prove in an action for malicious prosecution:

(i) he was prosecuted by the defendant,

(ii) the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable

of so terminating,

(iii) the prosecution was instituted against him without any reasonable or probable cause,

(iv) the prosecution was instituted with malicious intention, and

(v) he has suffered damage to his reputation.

2. Malice, Malice in fact and Malice in law

The word “Malice” in common acception means and implies “Spite” or “ill-will”. The legal meaning of “Malice” is “ill-

will or spite towards a party and any indirect or improper motive in taking an action”. This is sometimes described as

“Malice in fact”. Legal “Malice” or “Malice in law” means “something done without lawful excuse”. In otherwords, “it is

an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-

feeling and spite. It is deliberate act in disregard of the rights of others”.

3. Essentials of Malicious Prosecution

There are two elements for the prosecution—

first the plaintiff has been prosecuted and second, the defendant has prosecuted the plaintiff. Legal

proceedings have thus started with the judicial authority.

Proceedings may envelope both types of prosecution i.e., criminal as well as civil. Here we can understand this

aspect that at what stage the proceedings start with the illustration of case Bolandanda Premayya v. Ayaradara,

MANU/KA/0097/1966 : AIR 1966 Kant 13.—

Defendant made a complaint with the police that plaintiff has committed a theft in his house. Police called

both i.e., plaintiff as well as defendant in the police station and recorded their statements. The
 sub-inspector then made a search in plaintiff’s house. But the police found the complaint to be false. The

plaintiff filed a suit for damages against the defendant in the civil court for malicious prosecution. The court

rejected this plea on this ground that mere filing of complaint with the police doesn’t amount to prosecution.

It starts only, when some judicial authority is set in motion as a consequence of such complaint. The suit

failed.

So, at what stage, the prosecution commences before the judicial authority, there are two views on this point:

(a) the prosecution starts as soon as the complaint is made or charge is laid before the judicial

authority. In Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46, it was observed that the charge should

have been acted upon and process issued by the judicial authority.

(b) the prosecution commences not at the stage when the complaint is made or charge is laid before

the judicial authority, but at the stage when some process has been issued by such authority for the

plaintiff to appear.

In the case Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108, the plaintiff agreed to sell certain property to

defendant who was going to form a company, but later on he backtracked to do so. On a complaint from defendant,

the Magistrate after examining it on oath, held an inquiry in the open court under section 202 of the Criminal

Procedure Code, 1898. The plaintiff was accordingly summoned and he appeared with his lawyer. Thereafter, the

Magistrate dismissed the complaint as a result of preliminary enquiry. The plaintiff brought a suit against the

defendant for damages for malicious prosecution. The Privy Council held—

“the action for damages for malicious prosecution is part of the common law of England, administered by the

High Court at Calcutta. The foundation of the action lies in abuse of 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.”

After stating the basis for the tort of malicious prosecution, Sir John Beaumont, J; of the Privy Council laid down the

principle of determining the stage at which prosecution commences. He said—

“To find an action for damages for malicious prosecution based upon criminal proceeding, the test is not

whether the criminal proceedings may be correctly described as prosecution, the test is whether such

proceedings have reached a stage at which damage to the plaintiff results. In this case the Magistrate took

cognizance of the complaint, examined the complainant on the oath, held an enquiry in open court under

section 202 which the plaintiff attended, and, at which the learned judge had found he incurred costs in

defending himself. The plaint alleged the institution of criminal proceedings of a character necessarily

involving damage to reputation and gave particulars of special damage alleged to have been suffered by the

plaintiff. Their Lordships think that action was well founded, and on the findings at the trial the plaintiff is

entitled to judgment.”

In criminal proceedings, malicious prosecution commences, when such proceedings have reached a stage at which

damage to plaintiff results.

What are the essentials that have to be proved by the plaintiff in an action for malicious prosecution?

Prosecution by the defendant

The plaintiff has to prove that the prosecution against him was instituted by the defendant. Prosecutor is a person

who is actively instrumental in putting the law in force: Dandy v. Beardsley, (1880) 43 LT 603.

If a person does not file a complaint himself but through the instrumentality of an agent or counsel, he will be termed

as a prosecutor.

A private person at whose instance and report the prosecution is launched by the police, is a prosecutor.

A person is not a prosecutor when the defendant has just given an account of honest suspicion about the plaintiff to

the police and the police without any further enquiry started a case against the plaintiff.

Proceedings terminated in favour of Plaintiff

As discussed above, the plaintiff has to prove that he was prosecuted by the defendant and if this prosecution results

in conviction of the plaintiff then no suit would lie against the defendant. A cause of action arises if the prosecution

fails to convict the plaintiff.

Prosecution instituted against plaintiff without any reasonable and probable cause

Citing the case of Hicks v. Faulkner describe about prosecution without reasonable and probable case.

Hawkins J. in Hicks v. Faulkner, (1878) 8 QBD 167, has defined ‘reasonable and probable’ as—

“an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds,

of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any

ordinarily 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”.

So, it may also be said that ‘reasonable and probable cause’ means honest belief in the guilt of accused based upon

reasonable grounds. In the case Jogendra v. Lingraj, MANU/OR/0036/1970 : AIR 1970 Ori 91:

1970 Cr LJ 819, the question was that whether in every case plaintiff is required to prove that the defendant

prosecuted him “in the absence of reasonable and probable cause.”

The Orissa High Court made out difference by distinguishing ‘acquittal on merits’ and ‘acquittal on benefits of doubts.’

The Court said that in both the types of acquittals, plaintiff has to prove defendant’s lack of ‘reasonable and probable

cause’ but where “the accusation against the plaintiff purports to be in respect of an offence which the defendant

claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be not only be

that plaintiff was innocent, but also there was no reasonable and probable cause for the accusation”.
 There is one exception to this rule i.e., where the defendant claims to have seen the plaintiff committing the crime,

and the trial ends in acquittal on merit. The presumption in such cases will be that there was no reasonable and

probable cause for his prosecution. In such a case the plaintiff will not be required to prove that the defendant

prosecuted him without reasonable and probable cause.

Prosecution was instituted with malicious intention

The plaintiff has again to prove that the defendant acted maliciously in prosecuting him. Malice means indirect and

improper motive. In the case Jogendra v. Lingraj, MANU/OR/0036/1970 : AIR 1970 Ori 91: 1970 Cr LJ 819, the Court

described ‘malice’ as—

“As already stated, bad blood existed between defendant and members of the Brahmin Nijog. Therefore,

when defendant found that some members of the Brahmin Nijog were responsible for committing certain

acts in relation to his properties, it is not unlikely that he availed of the opportunity of implicating others even

though they were not present and did not participate in any of the acts....... is in the circumstances indicative

of improper and wrongful motive and the necessary inference is that it was malicious.”

In Abdul Majid v. Harbansh Choube, MANU/UP/0034/1974 : AIR 1974 All 129, the Police Station Officer, in a

conspiracy hatched by two other defendants concocted a story that the plaintiff was involved in a dacoity and the

‘hansauli’ used in the dacoity was recovered from the house of plaintiff. The court acquitted the plaintiff on giving him

the benefit of doubt. The plaintiff then brought the action against the defendants. The Court observed that the

defendants adopted improper and wrongful motive to prosecute the plaintiff on the basis of concocted story. The

Court held defendants liable.

Damages for malicious prosecution

The plaintiff has to prove that he has suffered damage as a result of his prosecution. There are three types of

damages—

(i) damage to man’s reputation i.e., if person has been accused of scandalous matter;

(ii) damage to the person i.e., when the person is put in danger of losing his life, liberty or limb;

(iii) the damage to man’s property i.e., where he is forced to spend money to defend himself of the crime of

which he is prosecuted.

In Ram Lal v. Mahender Singh, MANU/RH/0300/2007 : AIR 2008 Raj 8 the plaintiff and his father had been implicated

in an offence of murder and they were acquitted by the court. Thereafter, the plaintiff filed suit for malicious

prosecution. It was held that merely because the plaintiffs came to be acquitted or discharged by the criminal court

as the prosecution failed to prove the case beyond doubt as is required in criminal law, it does not mean that such

acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution. The

burden of proof squarely lied upon the plaintiffs to prove that the prosecution was malicious, mala fide and done with

an intention to harass and defame the plaintiffs. No such case was made out by the plaintiffs, much less proved.

Therefore, the plaintiffs were not entitled to claim any damages.