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Malicious prosecution

Updated: Feb 20, 2022

Written By - Divyashree kamana

Malicious prosecution is essentially a malicious misuse of the justice delivery system's operation. It entails starting or proceeding with an unfair court process or trial against the plaintiff currently suing with malice and without fair or probable cause. It is important to remember that the term "prosecution" has a broader definition. Malicious investigation and conviction, as well as malicious bankruptcy and insolvency prosecutions (civil proceedings), malicious execution of process against the land, and malicious search, are all examples of malicious proceedings.

Malicious prosecution is thereby a tort of initiating criminal or bankruptcy proceedings against another (or liquidation proceedings against a company), or procuring the arrest and imprisonment of another by the judicial process, civil or criminal, or causing execution to be issued against the property of a judgment debtor, maliciously and without reasonable or probable cause, by which the other person is deprived of his or her property.[1]

The law of malicious prosecution tries to balance two conflicting interests of high social importance; one, the privilege of every citizen to put the machinery of law in motion for the purpose of assisting and aiding law enforcement, and the other, the desire to safeguard an individual from law enforcement, and the other, the desire to safeguard an individual from being harassed by unjustifiable litigation.[2] The law desires, expects, and encourages a citizen to assist the law enforcement by bringing anti-social elements in society to the bar of justice and grants him immunity for his bona fide efforts in so doing, but when such cases result in favour of the deceased the law is eager to protect the complainant from the inborn wrath and prejudice of the offender and it thus does not allow scandalous litigation to grow because to allow it is to expose a citizen to a serious injury to his self-respect, honour, credit and reputation. The law, therefore, is ultimately concerned with a proper adjustment between two interests and the principle of social policy. This is so important that the action for malicious prosecution is more carefully guarded than any other in the law of torts.


In an action for malicious criminal prosecution, the plaintiff must prove the following:

(a) That the plaintiff was prosecuted by the defendant;

(b) That the prosecution ended in plaintiff’s favour;

(c) That the defendant acted without reasonable and probable cause; and

(d) That the defendant was actuated by malice.

This is so well settled that unless all these elements concur, the suit will fail. To put the same briefly the elements are[3]

(i) Malice;

(ii) The defendant acted without reasonable and probable cause and the entire proceedings against him had wither terminated in his favour, or the process complained of had been superseded or discharged;

(iii) Such proceedings had interfered with his liberty or property, or had affected or were likely to affect his reputation, and finally,

(iv) That the plaintiff had suffered damage.


The cause of action in a suit for malicious prosecution arises not on the date of institution of the proceedings complained of, but on the date of termination of the proceedings in favour of the plaintiff. Under Articles 22 and 23 of the Indian Limitation Act, the limitation for filing a suit for malicious prosecution is one year from the date of acquittal of the plaintiff or the prosecution is otherwise terminated, in other words, the limitation period is one year from the date of the injury or injuries.[4]

Jurisdiction :

Malicious prosecution is fundamentally a malevolent abuse of the court procedure and if such maltreatment of the process of the court is made at a specific place by serving that interaction upon the individual, who was malignantly prosecuted, the jurisdiction could be limited to the place at where the individual was presented with the summons.

[1] Ratanlal and Dhirajlal, Law of Torts Page 297-323 [2] J.N. Pandey, Law of Torts. [3] R.K. Bangia, Law of Torts 242-272 [4] Winfield and Jolowicz, Tort

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