Malicious Prosecution

Malicious Prosecution is a tort maliciously and without reasonable and probable cause to initiate against another judicial criminal proceedings which terminate in favour of that other and which result in damage to his reputation, person freedom or property. For example suppose, ‘A’ makes a false complaint against ‘B’ for having committed burglary with a view to compel ‘B’ to deliver some property to him. ‘A’ in this case may be liable for malicious prosecution.


In an action for malicious prosecution, the plaintiff has to prove the following, essentials:

(1) The defendant prosecuted the plaintiff

The term prosecution means a proceeding in a court of law charging a person with a crime. It includes, in India, a proceeding before a magistrate for preventing crime under Cr. P.C., for compelling a person to give security for keeping the peace or good behaviour, or abstain from
interfering with another immovable properties and thereby causing a breach of peace. But in Akhuriya Naidu v. Venkatswami, it was held that in respect of proceeding under section 145, Cr. P.C. provision is made in section 148 sub-clause (3) for awarding cost on basis of expenses incurred by the successful party. If the Court refuses cost to successful party, a suit by such party for damages for malicious prosecution in such a case would not lie. It is submitted that the view, that no suit for malicious prosecution for proceeding under Section 145 lies, is the correct view.

The defendant must have been actively instrumental in initiating the proceeding. If he merely states the fact as he believes them to be to a policeman or a magistrate he is not responsible for any proceeding which might issue as a result of action taken on his own initiative by such policeman or Magistrate. A person setting the criminal law in motion may either present a complaint to a magistrate or give information to a police officer. In each of these cases it is out of the information given, by the person making the complaint or giving the first information that the prosecution arises. Where a person in the first information report, lodged with the police, does no more than truly relate the story of the loss or destruction of his property or injury to the person, leaving it to the police to make investigation, without further instruction or active participation on his part, in the investigation the police arrests and lays a charge-sheet against the person suspected, it is the police, and not the person who lodged the first information that is the prosecutor. In other words if a person furnishes what he honestly believes to be correct narration of facts and circumstances from which the police or magistrate may or may not infer that the person suspected has committed a crime, he does not set the law in motion and is not a prosecutor. If, however, the story told to the police is untrue to the knowledge of the person lodging the first information report or if he misleads the police in their investigation by bringing in false witnesses then he would be liable as prosecutor. If, in his first information to the police or complaint to the magistrate a person positively asserts that another person has committed the offence and the latter is arrested and on the inquiry by Magistrate is discharged or acquitted, the person lodging the information or making the complaint must be held to have started the prosecution. If all that is furnished in a first information report or a complaint is that on the facts and circumstances truly stated therein, there is an honest suspicion against a person it cannot be said that the person lodging the first information or making the complaint initiated the prosecution, for all that he had done is to give a mere narration of facts and circumstances from which the police or magistrate may not infer that the person suspected has committed a crime.

When the prosecution begins: It is essential to understand as to when a prosecution begins. Some Judges were of the opinion that the prosecution commences as soon as the complaint is made. Contrary to this it was held that it cannot be said that there is a prosecution from the moment a complaint is made even if no process is issued against the person named in the complaint and the complaint is dismissed. Until the process has been issued the person against whom the complaint has been made is not an accused person, neither is he being prosecuted. The Privy Council has expressed its view as follows: “To found an action for damages for malicious prosecution based upon criminal proceeding have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached at a stage at which damage to the plaintiff results. It would not be correct to say that the mere presentation on a false complaint which first sets the said criminal law in motion will per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the plaintiff results.” But where in a case the Magistrate took cognisance of a complaint, examined the complaint on oath, held an enquiry in an open Court under Section, 202, Cr. P.C., which the plaintiff attended, incurred cost in defending him, it was held under the circumstances that the action was well founded and that the prosecutor had begun.

The correct view of the law is that the prosecution cannot be said to have been commenced unless and until a process has been issued for the plaintiff to appear. The case reported in A.I.R. 1947 P.C. 108. is not an authority to the contrary. In that case though the process was not issued yet the accused was allowed to appear and spend money in defending himself. Ordinarily accused are not given any chance to appear before process is issued. In Braj Shundra v. Bandeo Das, it was held that where, in the charge-sheet a person noted as an accused person not sent up for trial, was not prosecuted.

(2) Absence of reasonable and probable cause

At stated above no action will lie for malicious prosecution unless it is proved that the criminal proceedings were initiated without reasonable and probable cause. The term ‘reasonable and probable cause’ can be defined as an honest belief in the guilt of the accused based upon
a full conviction founded upon reasonable grounds of the existence of the state of circumstances, which assuming to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accused, to the conclusion that the person charged guilty of the crime imputed. If the plaintiff proves either that the defendant, did not believe in his guilt or that the belief was not reasonable, it will be proved that the defendant prosecuted him without reasonable and probable cause.

It is impossible to enumerate all the factors which may be relevant in deciding whether there was reasonable and probable cause. Particularly important points would be that the defendant acted in good faith on the advice of counsel, whether the defendant however honest his act, had taken reasonable care to inform himself of true facts.

In Abrath v. North Eastern Railway, Abrath the plaintiff was a surgeon, who had attended one M, for bodily injuries alleged to have been sustained in a collision upon the defendant’s Railways. M brought an action against the defendant Railway company and recovered a large sum against the company. Subsequently, the directors received certain information which they laid before their counsel who advised that Abrath and M should be prosecuted for conspiring to defraud the company. Accordingly the company prosecuted them. Abrath was acquitted. Abrath then sued the company for malicious prosecution.

At the trial in the High Court it was proved that, (1) defendants took reasonable care to ascertain the facts, (2) they honestly believed that the company had been defrauded. The High Court accordingly gave judgment for the defendants.

The House of Lords dismissed the appeal. The laid down that in a suit for malicious prosecution the plaintiff must prove that the defendant, (1) did not take reasonable care to inform himself of the true state of acts and that (2) he did not honestly believe the case which he prosecuted. In the present case as the plaintiff failed to prove want of reasonable and probable cause his suit could not succeed.

Burden of proof: In a suit for damages for malicious prosecution it lies on the plaintiff to allege and prove affirmatively that the defendant had no reasonable and probable cause in having the case instituted. He must establish facts which are inconsistent with such reasonable and probable cause. According to the other view the burden of proving that the prosecution was instituted without any reasonable and probable cause is on the plaintiff initially, but that burden may shift: during the trial. In Surendra Nath Sao v. Bidhi Bhusan, it was held that the onus is not stationary burden. When the plaintiff has given such evidence as if not answered would entitle him to succeed, the burden to proof shifts to the defendant.

It is not required of any prosecution that he must have tested every possible relevant facts before he takes action, his duty is not to ascertain whether there is a defence but to ascertain whether there is a reasonable and probable cause of a prosecution.

(3) Malicious intention

In a suit for damages for malicious prosecution it is necessary for the plaintiff, inter alia, to prove that the defendant acted without reasonable and probable cause, and that the defendant was actuated by malice. In order to make out a cause of action, malice and want of reasonable and probable cause must concur. Either is sufficient without the other. The term malice in ordinary parlance means feeling of ill-will, enmity or spite. But the malice to be proved in an action of tort means something else. Here malice means some improper, indirect and wrongful, motive. One can prosecute a person (launch a criminal proceeding against a person) only with a motive to maintain a public justice or to vindicate a private right. Prosecution of a man with any other motive is malicious. Let us take an example: A assaults B with a lathi B files a complaint in the Court of Magistrate to get A punished only because he has been assaulted. Here the use of proceeding is a proper one. But suppose A is in lawful possession of a plot. B wants to have the plot. So he files a false complaint alleging that he was in peaceful possession of the plot and A assaulted him and took possession of the plot by force only with a motive to harass A so that he may surrender the plot. Here the proceeding is malicious. Thus we see that a malice is some motive other than the desire to vindicate public justice or private right. It may arise from enmity, ill-feeling, spite or it may arise only for a gain. One may falsely prosecute a man because he is one’s enemy or one may do so only to extract some money from him. Malice has been said to be any wrong or indirect motive but however wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence, he cannot be initiator of malicious prosecution.

Malice is the gist of an action for malicious prosecution and must be proved by the plaintiff. The malice may be proved by previous-strained relations. Malice is also proved by proof by proof of want of reasonable and probable cause if it is proved that the plaintiff had no reasonable and probable cause to file criminal case there will be no doubt about the fact that the case was launched maliciously.

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

It is essential to show that the proceeding must have terminated in favour of the plaintiff. Even though the plaintiff has been convicted of a lessor offence, or has had his conviction quashed in appeal or has been acquitted on a technicality or for non-prosecution this requirement
is satisfied. If the conviction of the plaintiff stands even, though there is no right of appeal from it and although he can satisfy the Court in the instant proceeding that the conviction was grossly unjust, there is no cause of action in this tort. The plaintiff seems to satisfy the present requirement if he proves that the defendant has discontinued the proceeding, the plaintiff cannot sue, it seems, while the proceeding are still pending.

The withdrawal of a prosecution due to settlement, bars accused’s claim for damages for malicious prosecution, provided the settlement was between him and the prosecutor, but where the withdrawal was the result of settlement between the prosecution and one of several accused, the other accused are not disentitled to make the claim.

(5) Damage

The person who has been maliciously prosecuted can successfully bring an action against his prosecutor only if he suffers some damage from the prosecution. If he suffers no damage he cannot sue. The damage is the gist of an action for malicious prosecution. The damage may be one of the three kinds :

(a) Damage to person’s fame, e.g., to prosecute a person for a crime which involves some slur on his character.

(b) Damage to his person as when a person is prosecuted with a crime by the punishment of which he may lose his life, limb or liberty.

(c) Damage to his property as when he is forced to spend money in necessary charges to acquit himself of the crime of which he is accused e.g., fees of a lawyer, loss of business during the trial.

It must be borne in mind that damage need not necessarily be proved. It may be presumed. For example, in the case of a prosecution which involves some scandal about the character of a person, damage to his reputation is proved and need not be proved. Again if the crime of which the plaintiff was accused is punishable with loss of life, limb or liberty, the damage to his person is presumed and need not be proved. Damage to property may be proved by showing that the expenses were incurred in conducting the defence.

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