Malicious Prosecution under Law of Tort


Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. The foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for a proper cause the tort of malicious position provides redress for those who are prosecuted without cause and with malice. In order to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution.

In an action of malicious prosecution the plaintiff must prove:

  • That he was prosecuted by the defendant.
  • That the proceeding complained was terminated in favour of the present plaintiff
  • That the prosecution was instituted against without any just or reasonable cause.
  • That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact.
  • That he suffered damage to his reputation or to the safety of person, or to security of his property.

When does Prosecution commence?

The Prosecution is not deemed to have commenced before a person is summoned to answer a complaint. there was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something shoud be done. The plaintiff was neither arrested nor prosecuted. It was held that merely bringing the matter before the executive athourity did not amount to prosecution and therefore the action for malicious prosecution could not be maintained. There is no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing both the parties.

Elements of malicious prosecution

1. Institution or continuation of Legal proceedings- There must have been a prosecution initiated by the defendant. The word ‘prosecution’ means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion and the law is set in motion only by an appeal to some person clothed. The person to be sued is the person who was ‘actively instrumental in putting the law in force.

2. Termination of the prosecution in the plaintiff’s favour- The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-prosecution.

3. Absence of reasonable and probable cause- ‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.

  • an honest belief of the accuser in the guilt of the accused
  • such belief must be based on an honest conviction of the existence of circumstances which led the accuser
  • such secondly mentioned belief as to the existence of the circumstances must be based upon reasonable grounds that is such grounds , as would lead any fairly cautious man in the defendant’s situation to believe so
  • The circumstances so believed and relied on by the accuser must be such as amount to a reasonable ground for belief in the guilt of the accused. It is the responsibility of the plaintiff to show that there was no reasonable and probable cause for the prosecution of the case. If the defendant can be shown to have initiated the prosecution without the himself holding an honest belief in the truth of the charge, it cannot be said that he acted upon reasonable and probable cause. The fact that the plaintiff has been acquitted is not prima facie evidence that the charge was unreasonable and false. Lack of reasonable and probable cause is to be understood objectively, it does not connote the subjective attitude of the accuser. The fact that the accuser himself thinks that it is reasonable to prosecute does not per se lead to the conclusion that he had a reasonable and probable cause.

4. Malice- Malice for the purposes of malicious prosecution means having any other motive apart from that of bringing an offender to justice. Spite and ill-will are sufficient but not necessary conditions of malice. Malice means the presence of some other and improper motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose. Anger and revenge may be proper motives if channeled into the criminal justice system.

Evidence of Malice- Malice may be proved by previously stains relations, unreasonable or improper conduct like advertising of the charge or getting up false evidence. Though mere carelessness is not per se proof of malice unreasonable conduct like haste, recklessness or failure to prove enquiries would be some evidence. When there is absence of some reasonable cause wing to defendant’s want of belief in the truth of his charge is the conclusive evidence of malice

5. Damages- It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. The damages may not necessarily be pecuniary. there could be three sort of damages any one of which could be sufficient to support any action of malicious prosecution.

  • The damage to a man’s fame as where the matter whereof he is accused is scaldalous
  • The damage done to a person as where man is put to a danger of losing his life , limb or liberty
  • The damage to a man’s property as where is forced to expend money in necessary charges , to acquit himself of the crime of which he is accused.

The damage must also be the reasonable and propable results of malicious prosecution and not too remote. In assessing damage the court to some extent would have to consider

  • The nature of the offence the plaintiff was charged of
  • The inconvenience to which the plaintiff was charged to
  • Monetary loss and
  • The status and prosecution of the person prosecuted.           

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