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Malicious Prosecution

Updated: Feb 20, 2022

Written by - Khushi Maheshwari

Cases that lack sufficient evidence are rarely pursued in criminal or civil court. Criminal charges or civil cases are periodically filed deliberately in order to intimidate, harass, defame, or otherwise harm the other party. Whether it's an unscrupulous prosecutor pursuing false charges against a political competitor or a corporation suing a tiny business to drive the competition out of business, such actions are referred to as hostile prosecution. This tort serves as an important check on potential abuses because prosecutors have substantial discretion over which cases are pursued and private persons are free to file lawsuits. Malicious prosecution is a civil and criminal offence that results in both a civil and criminal case. Malicious prosecution is originally described in tort law and then mentioned in the Indian Penal Code.

Malicious prosecution is a deliberate "dignitary" tort that can be claimed by someone against whom a criminal or civil action has been brought without probable cause and with malicious intent. A plaintiff claims injury to his or her human dignity in a dignitary tort, which also involves imposition of emotional distress and abuse of process.


When one party brings a frivolous lawsuit against another with malicious intent, it is known as malicious prosecution. This contains both criminal accusations and civil claims, which have virtually the same basis of action. The most significant distinction between claims based on criminal and civil conduct is evidence. For example, in a claim based on intentional criminal prosecution, mental anguish is frequently regarded an element of general damages, and no particular proof is necessary. However, in civil lawsuits, the plaintiff must be able to demonstrate quantitative losses. Most states allow claims based on civil proceedings to be recovered as long as the plaintiff (the original defendant) can show malicious intent and a lack of probable cause. However, some states, in addition to the inconvenience of responding to a civil complaint, need some actual interference with or injury to the plaintiff. Defamation as a result of a malicious lawsuit, such as lost business as a result of a tarnished reputation, is often regarded a compensable injury.


In a complaint for damages for malicious prosecution, the plaintiff must prove the following fundamental factors –

  • Prosecution by the defendant.

  • Absence of reasonable and probable cause.

  • Defendant acted maliciously.

  • Termination of proceedings in the favour of the plaintiff.

  • Plaintiff suffered damage as a result of the prosecution.

1. Prosecution by the defendant

The plaintiff must prove that he (plaintiff) was prosecuted by the defendant as the first necessary element in a claim for damages for malicious prosecution. The term "prosecution" refers to a legal proceeding. Only hostile proceedings that are initiated in a court of law and accepted for trial by the magistrate are taken into account. A criminal prosecution should be brought against the plaintiff, who was a defendant in the original case.

Nagendra Nath Ray Vs. Basanta Das Bairagya ( AIR 1930 Cal 392)[1]

In this case, after the defendant's residence was broken into, he alerted the police that he suspected the plaintiff with the theft. The plaintiff was then arrested by the police, but was later released by the magistrate after the final police report revealed that there was no evidence linking him to the theft. It was decided that a suit for malicious prosecution could not be maintained because there was no prosecution at all, as police processes are not the same as prosecution.

2. Absence of reasonable and probable cause

The complainant has the burden of proving that he is being pursued without justification. The defendant must conduct in a prudent and reasonable manner. When the defendant believes there are adequate reasons to prove that the plaintiff is guilty of the crime, he or she will have reasonable cause. Malicious proceeding occurs when the defendant knows there is no legitimate cause and has purposefully prosecuted the plaintiff.

It doesn't matter if there was reasonable and probable cause if the prosecutor didn't know about it. The withdrawal of a prosecution or the acquittal of an accused person does not imply the absence of reasonable and probable cause. If a man chooses an indictment with various accusations, some of which have probable cause and others do not, his guilt for malicious prosecution is entire.

Abrath Vs. North Eastern Railway ([1883] 11 QBD 440)[2]

This case established three principles that must be followed in order to develop a reasonable and plausible cause:

1. The complainant has gone to great lengths to ensure that he or she is fully informed of the facts.

2. He honestly feels the facts on which he is basing his accusations are correct.

3. The circumstances were such that they may be used as prima facie evidence.

Another crucial factor in a lawsuit for damages for malicious prosecution is that the plaintiff must show that the defendant prosecuted him intentionally rather than with the sole goal of carrying out the law.

3. Malice

Another crucial factor in a complaint for damages for malicious prosecution is that the plaintiff must show that the defendant acted deliberately in prosecuting him rather than with a legitimate motive.The objective is to put the law into force. Malice does not have to be a sentiment of hatred, spite, or ill will, nor does it have to be a spirit of vengeance, but it can be any inappropriate motive that motivates the prosecutor, such as gaining a private collateral advantage. Malice under malicious prosecution is a bad purpose or malafide intention to prosecute someone unlawfully to cause him harm and damage to his reputation, which can be the consequence of wrath or jealously. The plaintiff must show that the defendant prosecuted him with the incorrect intent. If, on the other hand, the defendant honestly believes the plaintiff is guilty and has prosecuted him fairly, he will not be charged with malicious prosecution.

Allen Vs. Flood [(1898) AC 1][3]

In this case, a general rule was proposed that an act that is lawful in and of itself does not automatically become unlawful due to the actor's ill motives, and some Lordships in the House of Lords stated that malicious prosecution was not an exception to this rule. The accepted norm is that the gist of a malicious prosecution action is malice, which must be proven by the plaintiff in the first instance. The plaintiff bears the burden of proving the existence of malice, i.e. the plaintiff bears the Burden of Proof.

Antarjami Sharma Vs. Padma Bewa (AIR 2007 Ori 107)[4]

Plaintiff worked as a maid in the defendant's home in this case. Plaintiff filed a complaint against defendant, alleging that he attempted to rape her while she was working in his home. The defendant was charged by the court of law as a result of this allegation, which resulted in him and his reputation being harmed. He was acquitted, however, due to a lack of proper evidence. He subsequently filed a lawsuit accusing the plaintiff of malicious prosecution. In this instance, the court determined that the plaintiff made a false statement against the defendant and was liable for damages.

4. Termination of proceeding in favour of Plaintiff

The plaintiff, who has been wrongfully accused of an offence, should be acquitted by a court of law in order to start a malicious proceeding lawsuit. Only after the plaintiff has been acquitted by a court of law may he bring a lawsuit for malicious prosecution, and he must show in court that the original case was dismissed in his favour. It is necessary to establish that the proceedings complained of ended in the plaintiff's favour in order to recover damages for malicious prosecution. Termination in the plaintiff's favour does not imply a judicial decision of his innocence; rather, it implies that no judicial determination of his guilt has been made. Malice does not have to be a sentiment of hatred, spite, or ill will, nor does it have to be a spirit of vengeance, but it can be any inappropriate motive that motivates the prosecutor, such as gaining a private collateral advantage.

Ram Lal Vs Mahendra Singh ( AIR 2008 Raj 8, (2008) 2 MLJ 349)[5]

Ram Lal's son committed suicide in this case, and Ram Lal has filed a criminal complaint against the defendant, alleging that he was the cause of his son's death. The case dragged on for three years. The defendant was even detained for three months before being found not guilty owing to a lack of evidence. The plaintiff was then sued for malicious prosecution by the defendant. The plaintiff had even filed an appeal in the Rajasthan High Court against the acquisition. Even though he died in the middle of the case, his legal representatives maintained it, and the Rajasthan High Court ruled that the plaintiff could not prove malicious prosecution because there was no malafide intent. The plaintiff had even filed an appeal against the acquisition in the Rajasthan High Court, according to the court. Even though he died in the middle of the case, his legal representatives maintained it, and the Rajasthan High Court ruled that the plaintiff could not prove malicious prosecution because there was no malafide intent. “Merely because the prosecution failed to prove the case beyond a reasonable doubt as required by criminal law, the plaintiff was acquitted or discharged by the criminal court, it does not mean that such acquittal or discharge could necessarily boomerang on the defendant as a case for malicious prosecution,” the court said.

5. Damage has to be proved

For malicious prosecution to be carried out, the plaintiff must show in a court of law that he has experienced harm as a result of the initial procedure. Despite the fact that the case was settled in his favour, he has experienced losses as a result of the charges.

Damages can be claimed on the following grounds:

  • That the prosecution has caused him property damage.

  • His reputation in society has been harmed as a result of the prosecution.

  • That it has cost him inconvenience as well as financial loss.

Vishveshwar Shankarrao Deshmukh and Anr Vs. Narayan Vithoba Patil ( 2005 (2) Bom CR 491)[6]

Plaintiff was the Sarpanch of the village of Shirputi, and defendant No. 1 was a Gram Sevak in the Zila Parishad's service, and defendant No. 2 was a teacher in a Zila Parishad-run school. The plaintiff claimed that he filed many reports alleging the defendants' wrongdoing. The report was filed against defendant No. 1 for misconduct, defalcation, and account forgery, as well as a misdemeanour. It is alleged that both defendants then devised a scheme to entrap the plaintiff in a criminal conspiracy, and that defendant No. 1 had filed an F.I.R. with the police after being assaulted by the plaintiff while performing his duties. Criminal procedures were initiated against the plaintiff based on the F.I.R. and police investigation. The petitioner was found not guilty of the charges levelled against him. The case was begun without any valid grounds, and as a result of the fraudulent prosecution, his prestige and reputation were harmed, and his stature as a sarpanch and politician was diminished in society. The court found that the defendants' prosecution was made without reasonable and probable grounds and with a malafide motive, causing harm to the plaintiff's reputation. Both defendants are obligated to compensate the plaintiff for damages, according to the court.


The institution of a proceeding by a person against someone who has begun a hostile proceeding against him in order to do him pain and damage is known as malicious prosecution. Plaintiff must show that he was falsely prosecuted by the defendant without any reasonable and probable grounds, and that the defendant has a malafide purpose to harm plaintiff in order to bring the malicious prosecution. The plaintiff must be discharged by the court before malicious prosecution can begin.

A malicious prosecution claim can arise from any malicious criminal procedure that lacks probable cause, regardless of whether the claimant was tried or even indicted.

The cases of malicious proceeding are increasing in our country as it is mainly done by political leader and businessmen to clear their path to success and to bring an end to their opponents. Malicious proceeding is an abuse of the judicial system.

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