Malicious prosecution
Malicious prosecution
Malicious prosecution
“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
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.”
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 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.
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-
-cannot be said that -he was prosecutor -in an action against him for malicious
prosecution.
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
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.
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.
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-
Hicks v. Faulkner
Belief in facts
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.
malicious motives can - with a genuine belief in the guilt of the accused
Standards for determing malice
haste
recklesness
due and proper enquiries karaycha omission
spiri of retaliation
long standing enmity
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
Acquittal[pyq]
Acquittal of accused or dismissal of prosecution
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.
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.
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.
Savile v. Rober
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
Means wrongfully restrain personal liberty means wrongfully setting criminal law
of plaintiff in motion