Malicious Prosecution under Law of Torts

The law of torts aims to protect individuals from wrongful acts that cause harm to their person, property, reputation, or legal rights. Among the various torts recognised under common law, malicious prosecution occupies an important place because it protects individuals against abuse of the legal process. The tort of malicious prosecution arises when one person initiates criminal or civil proceedings against another without reasonable cause and with malicious intention.

The legal system gives every person the right to approach courts and law enforcement authorities for justice. At the same time, the law also recognises that this right should not be misused to harass innocent persons through false accusations or baseless proceedings. Malicious prosecution therefore acts as a safeguard against misuse of judicial machinery.

A false criminal case or unfounded legal proceeding can seriously affect the reputation, mental peace, liberty, and financial condition of an individual. Even if the person is later acquitted, the damage caused during the process may continue for a long time. The law relating to malicious prosecution provides compensation in such situations where legal proceedings are initiated dishonestly and without lawful justification.

The tort is based on two competing principles. The first principle is that every person should have freedom to bring offenders before courts and assist in administration of justice. The second principle is that innocent persons must be protected from false, malicious, and irresponsible prosecutions. The law tries to maintain a balance between these two principles.

Meaning and Definition of Malicious Prosecution

Malicious prosecution refers to the institution of criminal or civil proceedings against a person without reasonable and probable cause and with malicious intention. The proceedings must ultimately terminate in favour of the person against whom they were initiated.

In simple terms, malicious prosecution occurs when legal proceedings are wrongfully initiated not for securing justice but for causing harm, harassment, or humiliation to another person.

The tort generally involves the following aspects:

• Institution of legal proceedings against a person
• Absence of reasonable grounds for such proceedings
• Presence of malice or improper motive
• Favourable termination of proceedings for the plaintiff
• Damage suffered by the plaintiff

The foundation of the tort lies in abuse of the legal process. Courts discourage misuse of judicial machinery for personal revenge, intimidation, or harassment.

Meaning of Malice

The term “malice” has a wider meaning in law than in ordinary language. In common understanding, malice generally means ill-will, spite, or hatred towards another person. However, in legal terminology, malice includes not only personal hatred but also any improper or indirect motive behind an act.

Malice may exist even when there is no personal enmity between the parties. If legal proceedings are initiated for a purpose other than securing justice, such conduct may amount to malice.

For example, filing a false criminal complaint to pressure someone in a property dispute or business conflict may amount to malicious prosecution if other legal requirements are also fulfilled.

Malice in Fact and Malice in Law

The concept of malice is generally divided into two categories:

Malice in Fact

Malice in fact means actual ill-will, spite, hostility, or evil intention against another person. It refers to situations where legal action is initiated due to personal hatred or revenge.

This form of malice involves improper motive and deliberate intention to injure another person.

Malice in Law

Malice in law means an act done wrongfully and intentionally without lawful justification or reasonable cause. It does not necessarily require personal hatred or spite.

An act may amount to malice in law when it is done wilfully in disregard of the rights of others. Even if there is no personal enmity, the law may still infer malice if proceedings are initiated without proper grounds.

Thus, legal malice focuses more on wrongful conduct and absence of lawful excuse rather than emotional hostility.

Essentials of Malicious Prosecution

To succeed in an action for malicious prosecution, the plaintiff must prove certain essential conditions. All these ingredients must exist together. Failure to prove any one element may defeat the claim.

Prosecution by the Defendant

The first essential requirement is that the plaintiff must prove that he was prosecuted by the defendant.

The term “prosecution” means institution of legal proceedings through judicial machinery. Mere suspicion, accusation, or private complaint does not always amount to prosecution unless the legal process has been set into motion.

A prosecutor is a person who actively participates in initiating legal proceedings.

In Dandy v. Beardsley, (1880) 43 LT 603, it was observed that a prosecutor is a person who is actively instrumental in putting the law in force.

A person may still be treated as prosecutor even if the complaint is filed through an agent or legal representative. Similarly, a private person at whose instance police initiate proceedings may also be considered prosecutor.

However, merely giving information to police in good faith does not automatically make a person liable.

When Does Prosecution Commence?

An important question in malicious prosecution is determining the stage at which prosecution actually begins.

In Bolandanda Premayya v. Ayaradara, MANU/KA/0097/1966 : AIR 1966 Kant 13, the defendant falsely complained to police that the plaintiff committed theft. Police recorded statements and searched the plaintiff’s house but found the complaint false. The plaintiff filed a suit for malicious prosecution.

The court held that mere filing of complaint before police does not amount to prosecution. Prosecution begins only when judicial authority is set in motion.

There are two views regarding commencement of prosecution:

First View

According to one view, prosecution starts as soon as a complaint is made before judicial authority.

In Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46, it was observed that prosecution commences when the charge has been acted upon and process has been issued by judicial authority.

Second View

The second view states that prosecution begins only when some process is issued by judicial authority requiring the plaintiff to appear.

This principle was discussed in Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108.

In this case, the plaintiff had agreed to sell property to the defendant but later refused. The defendant filed a criminal complaint. The Magistrate examined the complaint on oath and conducted inquiry under Section 202 of the Criminal Procedure Code, 1898. The plaintiff had to appear before the court with his lawyer. Ultimately, the complaint was dismissed.

The plaintiff then sued for malicious prosecution. The Privy Council held that the action was maintainable because the proceedings had reached a stage where damage to the plaintiff had occurred.

The Privy Council observed that the foundation of malicious prosecution lies in abuse of the process of court by wrongfully setting law in motion.

Thus, criminal proceedings amount to prosecution when they reach a stage causing damage to the plaintiff’s reputation, liberty, or finances.

Proceedings Must Terminate in Favour of Plaintiff

The plaintiff must prove that the proceedings ended in his favour. If the proceedings result in conviction, an action for malicious prosecution generally cannot succeed.

Favourable termination may include:

• Acquittal in criminal proceedings
• Dismissal of complaint
• Withdrawal of charges
• Discharge by court
• Successful appeal

The termination must indicate that the original proceedings lacked merit.

However, mere acquittal does not automatically establish malicious prosecution. The plaintiff must still prove absence of reasonable cause and existence of malice.

Absence of Reasonable and Probable Cause

Another essential ingredient is that prosecution must have been initiated without reasonable and probable cause.

This requirement protects persons who honestly approach courts with genuine complaints. If a person acts on reasonable belief supported by facts, liability for malicious prosecution generally does not arise even if the accused is later acquitted.

The expression “reasonable and probable cause” was explained in Hicks v. Faulkner, (1878) 8 QBD 167.

Hawkins J. defined it 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”.

Thus, reasonable and probable cause means honest belief in guilt based on reasonable grounds.

Courts usually examine:

• Facts known to defendant at the time
• Nature of investigation conducted
• Credibility of available evidence
• Conduct of parties
• Whether a reasonable person would have initiated proceedings

Distinction Between Acquittal on Merits and Benefit of Doubt

The issue was discussed in Jogendra v. Lingraj, MANU/OR/0036/1970 : AIR 1970 Ori 91 : 1970 Cr LJ 819.

The Orissa High Court distinguished between acquittal on merits and acquittal on benefit of doubt.

The Court held that in both situations, the plaintiff must prove absence of reasonable and probable cause. However, where the defendant claimed to have personally witnessed the offence and the trial ended in acquittal on merits, a presumption may arise that there was no reasonable and probable cause.

In such cases, the plaintiff may not be required to independently prove absence of reasonable cause.

Malicious Intention

The plaintiff must further prove that prosecution was instituted maliciously.

Malice in malicious prosecution means improper motive or wrongful intention. It is not confined only to personal hatred.

The court examines whether the defendant used legal proceedings for an improper purpose rather than genuine administration of justice.

In Jogendra v. Lingraj, the Court found that previous hostility existed between parties. The defendant implicated several persons even though they had not participated in alleged acts. Such conduct was considered indicative of wrongful motive and malice.

Similarly, in Abdul Majid v. Harbansh Choube, MANU/UP/0034/1974 : AIR 1974 All 129, the police officer, along with other defendants, falsely implicated the plaintiff in a dacoity case by fabricating recovery evidence.

Although the plaintiff was acquitted on benefit of doubt, the court held defendants liable because the prosecution was based on concocted facts and improper motive.

Thus, malicious intention may be inferred from surrounding circumstances, false allegations, fabricated evidence, personal hostility, or deliberate misuse of legal process.

Damages in Malicious Prosecution

The plaintiff must prove that damage was suffered due to malicious prosecution. Damage is an important element because the tort compensates individuals for harm caused through wrongful legal proceedings.

Damages in malicious prosecution are generally divided into three categories.

Damage to Reputation

False criminal accusations may seriously affect social standing and reputation. Allegations involving immoral or criminal conduct often create stigma in society.

Even after acquittal, reputational injury may continue to affect personal and professional life.

Damage to Person

A person may suffer arrest, detention, mental stress, humiliation, and loss of liberty due to false prosecution.

The emotional and psychological consequences of criminal proceedings can be severe, especially when proceedings continue for long periods.

Damage to Property

A wrongfully prosecuted person may suffer financial losses such as:

• Legal expenses
• Advocate fees
• Loss of income
• Travel expenses
• Other litigation-related costs

Important Judicial Observation on Damages

In Ram Lal v. Mahender Singh, MANU/RH/0300/2007 : AIR 2008 Raj 8, the plaintiffs had been implicated in a murder case but were later acquitted.

The plaintiffs then filed a suit for malicious prosecution.

The court held that mere acquittal or discharge does not automatically establish malicious prosecution. The burden lies upon the plaintiff to prove that prosecution was malicious, mala fide, and intended to harass or defame.

Since such facts were not sufficiently proved, damages were denied.

This case highlights that acquittal alone is not enough. Courts require clear proof of malicious conduct and absence of lawful justification.

Conclusion

Malicious prosecution is an important tort that protects individuals against wrongful and malicious use of legal proceedings. It recognises that false prosecutions can cause serious harm to reputation, liberty, finances, and mental peace. The tort acts as a safeguard against abuse of judicial machinery and ensures accountability for misuse of legal process.

To establish malicious prosecution, the plaintiff must prove prosecution by the defendant, favourable termination of proceedings, absence of reasonable and probable cause, malicious intention, and resulting damage. Courts examine these requirements carefully because the law must protect both genuine complainants and innocent persons wrongly prosecuted.

Note: This article was originally written by Prachi Tandon (Institute of Law, Nirma University) and published on 22 August 2020. It was subsequently updated by the LawBhoomi team on 12 May 2026.