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    Malicious Prosecution

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    Bhupesh Singh
    This document discusses the tort of malicious prosecution. It defines malicious prosecution as instituting unsuccessful criminal proceedings against someone with malice and without reasonable and probable cause. There are five essential elements for a suit of malicious prosecution: [1] prosecution by the defendant, [2] absence of reasonable and probable cause, [3] malice, [4] termination of proceedings in favor of the plaintiff, and [5] proving damages. The document provides details on each element and relevant case laws to further explain the requirements to establish malicious prosecution.

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    Malicious Prosecution

    Uploaded by

    Bhupesh Singh
    291 views9 pages
    This document discusses the tort of malicious prosecution. It defines malicious prosecution as instituting unsuccessful criminal proceedings against someone with malice and without reasonable and probable cause. There are five essential elements for a suit of malicious prosecution: [1] prosecution by the defendant, [2] absence of reasonable and probable cause, [3] malice, [4] termination of proceedings in favor of the plaintiff, and [5] proving damages. The document provides details on each element and relevant case laws to further explain the requirements to establish malicious prosecution.

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    This document discusses the tort of malicious prosecution. It defines malicious prosecution as instituting unsuccessful criminal proceedings against someone with malice and without reasonable and probable cause. There are five essential elements for a suit of malicious prosecution: [1] prosecution by the defendant, [2] absence of reasonable and probable cause, [3] malice, [4] termination of proceedings in favor of the plaintiff, and [5] proving damages. The document provides details on each element and relevant case laws to further explain the requirements to establish malicious prosecution.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    291 views9 pages

    Malicious Prosecution

    Uploaded by

    Bhupesh Singh
    This document discusses the tort of malicious prosecution. It defines malicious prosecution as instituting unsuccessful criminal proceedings against someone with malice and without reasonable and probable cause. There are five essential elements for a suit of malicious prosecution: [1] prosecution by the defendant, [2] absence of reasonable and probable cause, [3] malice, [4] termination of proceedings in favor of the plaintiff, and [5] proving damages. The document provides details on each element and relevant case laws to further explain the requirements to establish malicious prosecution.

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    Malicious Prosecution Complete Notes pdf (

    With All Famous Case Laws ) : Law Of Torts


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    What Is Malicious Prosecution ?


    This Article Includes [Hide]

     What Is Malicious Prosecution ?


    o Difference between Malicious Prosecution & Malicious Use of Process ( or
    Malicious Abuse of process )
     Essentials in a suit of Malicious Prosecution :
    o 1. Prosecution by the Defendant
    o 2. Absence of reasonable and probable cause.
    o 3. Malice
    o 4. Termination of proceedings in the favour of the plaintiff.
    o 5. Damage has to be proved.
    o Found the content useful ?? Share it among your friends and help them too...
    o Related

    Meaning of Malicious prosecution

    Malicious Prosecution is defined as a judicial proceeding instituted by one person against the
    another, from wrongful or improper motive, without any reasonable and probable cause to justify
    it.

    Malicious Prosecution consists in instituting unsuccessful criminal proceedings maliciously


    without reasonable and probable cause. When such prosecution causes actual damage to the
    party prosecuted, it’s a tort for which he can bring an action.

    Difference between Malicious Prosecution & Malicious Use of Process ( or


    Malicious Abuse of process )

     Malicious Prosecution means process to be issued maliciously, whereas, Malicious use of


    Process means using a legal process for some purpose other than than it was issued by the
    law.
     When malicious prosecution through criminal or civil proceedings cause actual damage
    to the party prosecuted, or when the proceeding has ended in the favour of the defendant,
    he or she may sue for tort damages, known as malicious use of prosecution.

    You May be Looking For : General Defences in Torts Law

    Essentials in a suit of Malicious Prosecution :

    Essentials of Malicious Prosecution

    1. Prosecution by the defendant.

    2. Absence of reasonable and probable cause.

    3. Malice.

    4. Termination of the proceeding in the favour of the plaintiff.

    5. Damage.

    1. Prosecution by the Defendant


    Prosecution by the defendant

    Two essential ingredients of prosecution by the defendant are :

     Prosecution
     The same was instituted by the defendant.

    Case law : Nagendra Nath Ray V. Basanta Das Bairagya


    A theft had been committed in the defendant’s house. He called the police and told that he had a
    doubt on the plaintiff. Police arrested the plaintiff, but he was discharged by the magistrate due
    to lack of evidences in police reports. Defendant then sued Plaintiff for Malicious Prosecution,
    but it was rejected as mere police proceedings are not prosecution.Damage has to be proved

    Case Law : Khagendra Nath V. Jacob Chandra


    Merely bringing a matter before an executive authority doesn’t amount to prosecution. Therefore
    there is no prosecution when a magistrate issues only a notice and not summon to the accused on
    receiving a complaint and subsequently dismisses it after hearing the both sides.

    Proceedings before a Quasi-Judicial Authority :

    Case law : Kapoor Chand V. Jagdish Chand


    Plaintiff sued the defendant falsely that defendant has obtained a false degree of Hakim from
    Board of Ayurvedic & Unani System of Medicines. Plaintiff also stated that defendant is
    illiterate. On further investigation, it was found that plaintiff was prosecuting the defendant
    maliciously. Since the Malicious Prosecution is there, case was presented before quasi judicial
    authorities.

    Case Law : D.N Bandopadhyaya V. Union of India


    Mere departmental enquiry by disciplinary authority can not be called prosecution.
    Prosecution should be instituted by the defendant.

     A prosecutor is a person who is actively instrumental in putting a law in force for


    prosecuting the other person.
     A person can’t be deemed to be a prosecutor merely because he gave some information
    or evidences about some offence to police. Even though they were false to the police,
    can’t give cause of action to the plaintiff in a suit for Malicious Prosecution. If defendant
    is not proved to be real prosecutor by establishing that he was taking active part in
    prosecution, and that he was primarily and directly responsible for the prosecution.

    Case Law : Dattatraya Pandurang Datar V. Hari Keshav


    Defendant lodged a FIR to police regarding theft at his shop, naming the plaintiff ( servant )
    being suspect. After investigation, it was cleared that plaintiff has nothing to do with the theft.
    Plaintiff sued defendant for malicious prosecution, but the plea was rejected as the essential
    element, Plaintiff must be prosecuted by the defendant could not be established. The defendant
    has done nothing more than giving information to the police.

    Case Law : Gaya Prasad V. Bhagat Singh


    Privicy council stated that the conduct of the complainant, before and after the complaint has to
    be seen to decide whether he is really a prosecutor or not. If information given by him is false
    and he know that, and done just to misguide the police, he will be considered as prosecutor.

    2. Absence of reasonable and probable cause.

    Absence of reasonable and probable cause

    Plaintiff also need to prove that defendant prosecuted him without any reasonable grounds and
    probable cause. Mere honest belief is not enough, it is also necessary that defendant must act as a
    reasonable and prudent man. There is a reasonable and probable cause when the defendant has
    sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed.

    Case Law : T.S. Bhatta V. A.K. Bhatta


    Defendant filed a complaint against plaintiff. The defendant knew that the charge was false and
    was acting with reasonable and just cause. It was held that the defendant was real prosecutor and
    was liable for malicious prosecution.

    Case Law : State of Tripura V. hardhan Chowdhury


    Plaintiff was reputed timber merchant of the area. Defendant sued him under two criminal cases
    for cutting trees from protected or reserved area with a malafide intention. Court found it a
    malicious prosecution and awarded Rs. 25000 as compensation to the plaintiff.

    Case Law : Hetram V. Madan Gopal ( 2007 )


    Defendant made false allegation on plaintiff for setting their house on fire, no remote evidence
    was found. Compensation of Rs. 55,000 was awarded to the plaintiff due to malicious
    prosecution.

    3. Malice

    Malice

    Malice in malicious prosecution means having an ill-motive in prosecuting someone. Usually


    that wrongful intention or ill-motive comes out of the revenge and anger. Here also, the burden
    of proof is on plaintiff. It means that plaintiff needs to prove that defendant acted maliciously in
    prosecuting him.

    In other words, it means, using the legal process for some other purpose, rather than the purpose
    it is used for, due to some improper and wrongful motive.
    Case Law : Antarjami Sharma V. Padma Bewa
    Servant prosecuted the master maliciously for outraging her modesty. Even other servants had
    given the false statement and false evidences. Court held that along with plaintiff, the other
    persons who gave false statement, knowing that the facts were not true, will also be liable for
    compensating for the damage.

    Case Law : Bhogi Lal V. Saroj Behan


    A agreed to buy house from B fro Rs. 15,000 and even paid the advance payment of Rs. 2,000.
    Later on, he discovered that the house is already mortgaged and B even didn’t disclose this fact.
    A believing that B is deceiving him sued him for cheating under section 420 and B was
    discharged. B sued A for malicious prosecution.
    Since, A wasn’t acting maliciously, he wasn’t made liable to pay the damages and no malicious
    prosecution was there.

    Acquital of a plaintiff is no evidence of malicious prosecution. Prosecution doesn’t becomes


    malice, if it is inspired by anger.

    4. Termination of proceedings in the favour of the plaintiff.

    Termination of proceedings in the favour of the plaintiff

    The plaintiff must prove that prosecution ended in his favour. He can only sue for malicious
    prosecution when he is acquitted or by the dismissal of complaint.

    If the plaintiff is convicted, he has no right to sue for malicious prosecution, but can appeal
    against the conviction. The plaintiff can only sue the defendant for malicious prosecution only
    when he is acquitted.
    Case Law : Ram Lal V. Mahendra Singh
    Son of Ram Lal committed suicide. Ram Lal filed a criminal suit against the defendant in which
    the proceeding went over 3 years. Even the defendant was kept in special custody for 3 months,
    and then acquitted. Then, the defendant filed a suit for malicious prosecution.
    Lower court decreed the suit in the favour of the defendant. But, Ram Lal appealed against the
    decision. Though he died during the proceeding, his legal representatives continued the
    proceeding in which, Rajasthan High Court held that the plaintiff could not prove malicious
    prosecution as there was malafide intention.

    5. Damage has to be proved.

    Damage has to be proved

    It has to be proved that due to the malicious prosecution, plaintiff has suffered damage. Even
    though, the proceeding terminates in the favour of the plaintiff, still he may suffer damage as a
    result of that malicious prosecution.

    Therefore, plaintiff can claim damages on grounds of :

     Damage to plaintiff’s reputation.


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

    Also, deprivation of his liberty, mental stress, inconvenience, status and position, monetary loss
    and fees of legal action are taken into consideration while deciding damages.

    Case Law : Sova Rani Dutta V. Debabrata Dutta


    Defendant filed a false FIR against the plaintiff and his sister alleging theft of her earring. Since,
    they know that information provided by them isn’t correct, malicious prosecution is there.
    Plaintiff claimed damages. Rs. 5,000 were awarded as compensation for the mental agony and
    pain suffered by him. Also, Rs. 1,500 were awarded to the plaintiff as special damages.

    That’s all for the Malicious Prosecution in Torts Law. Still left with any doubts regarding
    the topic ?? Just contact us by commenting down or through our facebook page, and we
    will reply to you

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