Malicious prosecution

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West Bengal State Electricity Board v.

Dilip Kumar Ray

Court defined the term “malicious prosecution” in following words:-

“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.”

Nature-

This tort-balances 2 competin principles -namely-freedo to bring criinals to justice and need for restraining
false accusations against innocent persons

 foundation of action lies in abuse of process of courty by wrongfully setting the law in motion

Diff between MP and abuse of process '

Court laid down distinction between -“an action for malicious prosecution”- and “an action for abuse of
process” in following words:-
“A malicious prosecution consists in maliciously causing process to be issued- whereas an abuse of process
is -employment of legal process -for some purpose other than that -which it was intended by law -to affect
the improper use of a regularly issued process.”

Essential Elements Of Malicious Prosecution

 Prosecution by defendant.
 Absence of reasonable and probable cause.
 Defendant acted maliciously.
 Termination of proceedings in favour of plaintiff.
 Plaintiff suffered damage as a result of prosecution.

Prosecution by the defendant

word “prosecution” -carries a wider sense than a trial


includes criminal proceedings by way of appeal, or revision

D.N. Bandopadhyaya v. Union of India

departmental enquiry by disciplinary authority cannot be called prosecution

Procedings before quasi judicial authority

Kapoor Chand V Jagdish Chand

Proceedings before Boards of Ayurvedic and Unani system-deemed prosecution-for purposes of MP

When does prosecution commence

prosecution is not deemed to have commenced before a person is summoned to answer a complaint.
No action can be brought when prosecution or proceedings -still pending.
In an action for malicious prosecution-cause of action arises- not on date of institution of proceeding
complained of- but on date- when proceeding terminates in favour of plaintiff.

In Khagendra Nath v. Jabob Chandra

merely bringing matter -before executive authority -not amount to prosecution


therefore- action for malicious prosecution could not be maintained.
There is no commencement of prosecution -when a magistrate-issues only a notice- and not a summons
to accused on receiving a complaint of defamation- and subsequently dismisses it -after hearing
both parties.

Who is not a prosecutor-

 pathologist who makes postmortenm report


 person who appears as witness
 Investigating officer not liable for falsity of cases

Actively instrumental[pyq]
A prosecutor is a person- who is actively instrumental -in putting a law in force- for prosecuting other
person.
Although criminal proceedings -conducted in name of State- but for purpose of malicious prosecution-
prosecutor is aperson -who instigates the proceedings.
fact that - private person - makes complaint to police -giving out information -which he believes to be
correct- not make him prosecutor.
To become prosecutor-must be actively instrumental in putting -criminal law in motion.

When there is no evidence of conduct of private person -before and after -he made complaint
to police- to show that-

 he was directly responsible for charge being made


 -or had taken principal part in conduct of the case
 - and had done all he could do to secure conviction of plaintiff in a suit for malicious prosecution

-cannot be said that -he was prosecutor -in an action against him for malicious
prosecution.

Pannalal V Srikrishna -LM

Instigation of proceedings-to be distinguished from-merely giving info to police -on the basis of which
prosectuiion commenced
If private person-is to be deemd prosecutor-has to do something more than m erely lodge complaint with
the police
Should be actively intsrumental in the roceedinngs
and should put up best efforts to ensure that plaintiff convicted for his offence

Dattatraya Pandurang Datar V. Hari Keshav

Defendant lodged a FIR to police -regarding theft at his shop-naming plaintiff ( servant ) assuspect.
After investigation-cleared that -plaintiff -nothing to do with theft.
Plaintiff sued defendant for malicious prosecution-
plea rejected -defendant has done nothing more than giving information to police.

Conduct of complainant-paramount in determing active instrumentality

Test not whether-prosecution -has reached a stage-where magistrate has take cognizance otest is whether
defendant actively instrumental -in putting criminal law into force
Gaya Prasad v Bhagat Singh

conduct of complainant- before and after complaint - to be seen -to decide whether -he was the real
prosecutor or not.
If complainant -knowing that -charge is false- tries to mislead police -by procuring false evidence -
for conviction of accused, -would be considered prosecutor.

Absence of reasonable and probable cause

plaintiff required to prove that -defendant prosecuted him- without reasonable and probable cause.
question relating to want of reasonable and probable - decided on all facts before Court
eg-If defendant acts on advice of counsel -shall be presumed that-he has - reasonable and probable cause

Standard-

 Not necessary that-Prosecutor satisfied of guilt or maintainability of criminal proceedings - before


he files complaint
 It is enough jar -if satisfied that-he has proper case -to approach the court
 mere suspicion not enough nahiye nor prosecutors belief required in probability of conviction

Hicks v. Faulkner

there must be:


honest belief of accuser- in guilt of accused
such belief must be based on -honest conviction of existence of circumstances -which led the accuser
such belief -must be based upon reasonable grounds- as would lead any fairly cautious man -
in defendant's situation to believe so
circumstances must be such- as amount to a reasonable ground- for belief in guilt of accused.

Antarajami Sharma v. Padma Bewa,

onus of proof of absence of reasonable and probable clause rests on plaintiff.


Abrath v. North Eastern Railway

3 principles necessary to form a reasonable & probable cause:


1. Person complaining took due care to be informed of facts
2. honestly believed his allegations to be true
3. facts were such as to constitute prima facie evidence

Belief in facts

 Question not whether facts believed by prosecutor -true or not


 Question is whether prosecutor honestly believed in those facts
 Thus test -both subjective ani objective
 Prosecutors belief -should be based on due enquiry

Defendant acted maliciously:-

malice is gist of action for malicious prosecution


Malice need not be- feeling of enmity, spite or ill will or spirit of vengeance
- but can be any improper purpose which motivates prosecutor-such as to gain a private collateral
advantage

Bank of India v. Lakshmi Das

proceedings complained of by plaintiff- must be initiated in a malicious spirit- that is- from an indirect and
improper motive -and not in furtherance of justice.
Malice may be inferred upon proof of absence of honest belief in accusation -and consequent want of
reasonable and probable cause -for instituting prosecution complained of.

Absence of reasonable cause not malice

 Absence of reasonable cause not necesarily existence of malice


 Both-to be seperately proved- however spiteful an accusation may be

malicious motives can - with a genuine belief in the guilt of the accused
Standards for determing malice

Foll evidence var rely karu shakto malice prove karnyastahi-

 haste
 recklesness
 due and proper enquiries karaycha omission
 spiri of retaliation
 long standing enmity

When not malice-

 Prosecution not malicious merely because -inspired by anger


 Acquittal of plaintiff not mean malice

Subsequent malice

 If prosecutor innocent at start of proceeding - but subsequently malicious -then action may lie for
malicious prosecution
 If during criminal prosecution- defendant gets positive knowledge -of innocence of accused-and
yet does not withdraw proceedings-then from that moment - continuance of prosecution-
malicious

Termination of proceedings in favour of the plaintiff:-

Termination in favour of plaintiff -does not mean judicial determination of innocence


it means absence of judicial determination of his guilt.

No action can be brought- when prosecution- still pending.


proceedings terminate in favour of plaintiff- if
has been acquitted on technical grounds
conviction has been quashed
prosecution has been discontinued
accused is discharged.
Exception-

 where proceedings are in respect of action brought exparte


Acquittal[pyq]
Acquittal of accused or dismissal of prosecution

 Absence of Reasonable and Probable --not to be presumed in cases-where accused acquitted


 However if defedant purports that-he hismself saw laintiff comit an offence-and trial results in
acquittal-then in such case-shall be presumed that plaintiff not only innocent-but also that there was
no reasonable and probable cause for accusation

In Sugan Kanwar v. Rakesh Mere

acquittal of plaintiff in criminal case- not entitle him -to decree for damages for malicious prosecution
Even if - plaintiff convicted by trial court- but conviction set aside in appeal- can sue for malicious
prosecution.
When plaintiff -acquitted of offence- for which he is prosecuted -but is convicted of a lesser offence- may
still sue for malicious prosecution -of graver offence -of which he is acquitted.

Nandlal v. State of Rajasthan,

In a suit for malicious prosecution-mere production of judgment of a criminal court -not sufficient - to
discharge -burden of proving malice -and want of reasonable and probable cause.
Criminal Court may either acquit or discharge a person.
may not be sufficient ground- for proceeding with a criminal case- for -evidence adduced by prosecution-
might not have been relied upon- for some reason or the other -and yet -defendant might have good
grounds- for launching prosecution against plaintiff.
fact that -prosecution ended in discharge or acquittal of accused -not necessarily warrant that -accusation
made was baseless -to the knowledge of prosecutor.

Ram Lal v. Mahender Singh


Merely because -plaintiff acquitted or discharged by criminal court- as prosecution failed to
prove case beyond doubt- as is required in criminal law- does not mean that -such acquittal or discharge -
could necessarily boomerang -upon defendant case for malicious prosecution.
burden of proof- upon plaintiff - to prove that -prosecution was malicious, mala fide -and done with
an intention to harass and defame plaintiffs.

Position where no appeal is possible

Where there is no provision of appeal- against decision of a court-action for malicious prosecution -would
not be affected by the fact that- if an appeal were allowed-conviction or acquittal might have been
reversed.

Plaintiff suffered damage as a result of the prosecution:

Savile v. Rober

plaintiff can thus claim damages on the following three counts

 Damage to plaintiff’s reputation,


 Damage to plaintiff’s person,
 Damage to plaintiff’s property.

MALICIOUS CIVIL PROCEEDINGS

 For Malicious civil proceeding -no action can be brought-even if without reasonable cause
 Since unsuccessful plaintiff -has to bear cost of litigation-acts as sufficient deterrent factor -to
discourage false proceedings

Examples include-

 Insolvency proceedings
 Winding up proceedings against trading company
 Proceedings by which defendants preoperty arrested and executed

Darbhangi Thakur v. Mahabir Prasad


unlike malicious criminal prosecution-no action can be brought- in case of civil proceedings- even though
the same are malicious -and have been brought without any reasonable cause.

Genu Ganapati v. Bhalchand Jivraj

essentials to establish malicious abuse of civil proceedings:-

 Malice must be proved.


 plaintiff must allege and prove that -defendant acted without reasonable and probable clause
 proceedings either terminated in his favour- or process complained of- has been superseded or
discharged.
 prove that such civil proceedings -interfered with his liberty or property- or likely to affect his
reputation

False Imprisonment and MP-Distinction[pyq]


FI MP

Means wrongfully restrain personal liberty means wrongfully setting criminal law
of plaintiff in motion

unlawful arrest or detention -done by


Imprisonment -procured by
private individual or ministerial officer of
judgement or by other judicial order
law -instead of judicial officer or a court of
of court
justice

is prima facie a tort not prima facie a tort

Damage -not the essence of false in malicious prosecution, damage is the


imprisonment essence.

mistake of fact can be taken as a


mistakes of fact can’t be taken as defence
defence.

no need of proving malice proving malice is a must

plaintiff has to allege and prove non-


defendant has to justify imprisonment. existence of reasonable and probable
cause.

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