January 23, 2022

Malicious Prosecution under Law of Torts

Law of torts

Meaning of Malicious Prosecution under Law of Torts

Malicious prosecution under Law of Torts refers to the institution of false criminal/bankruptcy/liquidation proceedings against an individual that are motivated out of malice and are not supported by any element of reasonable reasonability or probability.[1]

Essential Components of Malicious Prosecution under Law of Torts

To assert the contention of malicious prosecution, the plaintiff has to establish that the act by the defendant has all the components that are imperative to establish liability in such cases. They are enumerated below:

1. The defendant must have instituted a false proceeding against the plaintiff.

2. The proceedings so instituted were as a result of sheer malice and must not have any element of reasonableness or probability.

3. The end result of such proceedings must necessarily be in the favour of plaintiff, be it acquittal or suspension of the suit.

4. It is for the plaintiff to prove that these proceedings have arbitrarily interfered with his liberty and has led to adverse ramifications on his/her reputation in the society.

Civil proceedings– In the case of Genu Ganapati v. Bhalchand Jivraj[2], the Bombay High Court laid down the similar ground rules for establishing civil liability in case of malicious prosecution.

1. Prosecution by the defendant:

The foremost requirement to establish the case of malicious prosecution by the plaintiff. It has to be presented that the prosecution was initiated against the plaintiff as a result of arbitrary proceedings by the defendant. The term ‘prosecution’ hasn’t been aptly defined in the Code of Criminal Procedure, 1974 however with the help of various precedents set by the judicial courts, we can infer the essence of the term and its scope.

Contrary to the generic notion, prosecution is not limited to the initiation of proceedings against the plaintiff or a formal trial before a court. In the case of Mohammed Amin v. Jogendra Kumar Banerjee[3], the privy council laid down the test for contending such a prosecution. For the same, the council emphasised on the damage caused to the plaintiff as a result of proceedings rather than ascertaining the time when a proceeding took the form of prosecution. It was held that the plaintiff will have the burden to prove that despite the dismissal of the defendant’s complaint by the magistrate, the same did result in causing damage to him.

What is not a prosecution?

It is a commonly held principle that any disciplinary action by an authority cannot be regarded as prosecution by a judicial authority thus it cannot be subjected to the suit of malicious prosecution

Further, in the case of Khagendra Nath v. Jacob Chandra[4], the court ruled that prosecution cannot be said to have begun at the stage where the complaint was made before a competent (executive) authority.

2. Presence of malice and the lack of reasonability or probability in plaintiff’s prosecution:

This requisite lays its emphasis on the intention of the defendant while instituting a suit for action against the plaintiff , which must be determined on a factual and evidential basis as stated in the case of Jogendra Garababu v. Lingaraj Patra[5]. It is imperative that in such cases, the complaint made must lack the intent of bringing justice to the defendant and that the defendant must have acted out of malice without any substance in the allegations. It must be noted here that the term ‘malice’ is not limited to mere ill- feelings or hatred towards a person but also covers any immoral/improper cause that can result in causing wrongful damage to the plaintiff such as to gain leverage. The same principle can be traced to the case of Bank of India v. Lakshmimani Das and Ors[6].

Such an assessment must be made from the point of view of a reasonable man. It is also crucial to state that even if at the beginning of the proceedings, the defendant was unaware of plaintiff’s innocence, malice in such cases can be deemed to be present since the moment, the defendant comes to know of the innocence of the plaintiff and still he/she continues with the proceedings which are false in nature. The onus to prove such malice would lie on the prosecution.

Furthermore, if it is proved in due course of trial that the even though the defendant possessed hard-feelings towards the plaintiff, the complaint was reasonable on the basis of it being probable that the plaintiff had indeed wronged the defendant, then in such a scenario no suit for malicious prosecution can be made possible.

3. Termination of the prosecution in the favour of Plaintiff:

The case of malicious prosecution under Law of Torts can only be pleaded in successful termination of the proceedings in the favour of the plaintiff. It can be in the way of either the plaintiff’s acquittal or the suspension of any further proceedings against him. It is must also be noted that the termination of such proceedings against the plaintiff doesn’t necessarily represent his innocence but merely states that he/she hasn’t been convicted in lieu of the charges brought him/her. This position was stated in the case of Gilchrist v. Gardner[7].

Exception to this rule:

There are two exceptions to the aforementioned requirement which are as follows:

a) When the plaintiff and the defendant have reached a settlement resulting in withdrawal of the allegations made against the plaintiff.

b) A plea bargain in criminal cases cannot be termed as a termination in the favour of the plaintiff.

4. Damages to be accrued by the plaintiff as a result of the wrongful prosecution:

The last requirement to fulfil all the components of malicious prosecution under Law of Torts is that the plaintiff must have accrued certain harm/injury (damage) as a result of the prosecution that terminated in his/her favour. This harm must be foreseeable and should not be extremely remote. The categorisation of this harm was first stated by Holt CJ in the case of Savile v. Roberts[8] which was later opined by the Calcutta High Court in the case of C.M. Agarwalla v. Halar Salt and Chemical Works[9]. The categorisation goes as follows:

a) Damages in respect of harm to the plaintiff’s reputation – If the suit has led to tainting of the reputation of the plaintiff in the eyes of the right-thinking members of the society through unnecessary allegations then the damages for the same can be demanded.

b) Damages in respect of harm to the plaintiff’s body – When the proceedings have hampered the liberty of the plaintiff or have led to fear of injury then the damages for the same are recoverable.

c) Damages in respect of harm to the plaintiff’s property – The charges borne by the plaintiff to fight a suit for his acquittal are recoverable if the proceedings terminate in his favour and on the ground of arbitrary complaint.

Difference Between Malicious Prosecution and Abuse of Power

The distinction between prosecution inspired by malice and the act of abuse of power is of considerable significance so as to ascertain the liability. This distinction was dealt in case of West Bengal State Electricity Board v. Dilip Kumar Ray[10] wherein the Apex Court (Supreme Court of India) held that the former refers to instituting a process out of malice while the latter refers to process to obtain one’s motive by legal means for purpose other than the one it was intended for.

Defences against Malicious Prosecution under Law of Torts

The defences that can be pleaded in the suit of malicious prosecution are:

  • When the plaintiff is at fault – As stated supra, if the proceedings instituted against the plaintiff result in conviction based on his/her being guilty of the charged levied then such a person loses the right to sue the defendant. The only remedy the plaintiff has will be of appeal against the verdict.
  • When the defendant is possession of some privilege– The privilege may be in the form of judicial or statutory immunity.


The suit of malicious prosecution serves two purpose. The first being that it enables the plaintiff to sue the defendant, the person who had wrongfully instituted case with no probable cause. The Second purpose is that it leads to protection of one’s liberty and reputation not only through way of damages but also through creating a deterrent effect on the wrongdoer. This preservation is in coherence with the Fundamental rights enshrined in the Constitution of India.

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[1] Prateek Shanker Srivastava, “Malicious Prosecution under Law of Tort”, available at http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html,

[2] AIR 1981 Bom 170, (1981) 83 CALLT 1 NULL

[3] (1947) 49 BOMLR 584

[4]1976 Assam L.R. 379

[5]AIR 1970 Ori 91, 1970 CriLJ 819

[6] (2000) 3 SCC 640

[7] 54 N.J. 37 (1969)

[8] [1795] EngR 3039, (1795) 3 Salk 16, (1795) 91 ER 664 (B)

[9] AIR 1977 Cal 356

[10] SCI Appeal (civil) 5188 of 2006

Author Details: Prachi Tandon (Institute of Law, Nirma University)

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