Malicious Prosecution

Malicious Prosecution

Author: Monazza Sajid, Symbiosis Law School, NOIDA

  • What is the definition of Malicious Prosecution?

The court defined the term ‘Malicious prosecution’ in the case of West Bengal State Electricity Board v. Dilip Kumar Ray. According to the court, it was “ajudicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it, is a malicious prosecution.”[1]

Malicious Prosecution is the tort where the defendant initiates a criminal or civil proceeding against the plaintiff without any reasonable cause or any substantial evidence for the sole motive of injuring the plaintiff’s reputation or defaming him. And the individual suffers an infringement of their inherent rights by another person or entity.

It is a crime under section 211 of the Indian Penal Code (IPC), and both, civil and criminal, cases can be filed against any malicious case once the malicious intent is established.

  • What are the essential elements of Malicious Prosecution?

“In order to succeed in the claims of malicious prosecution, the plaintiff must prove the five essential elements that are needed to be proved in an action of malicious persecution. And they are as follows:”

  1. Prosecution by the defendant.
  2. Plaintiff’s acquittal
  3. The prosecution was without a reasonable and probable cause.
  4. Malicious intention must be present.
  5. Damages must be suffered by the plaintiff
  • Prosecution by the defendant

The first of the five essential speaks of initiation of prosecution by the defendant against the plaintiff. ‘Prosecution’ refers to proceedings in the court of law charging a person for the unlawful or wrongful acts for which he is accused of.

In the case of D.N. Bandopadhyaya v. Union of India, the term ‘Prosecution’ was discussed. And the court held that “Prosecution means the law should be set in motion by making a complaint before an authority exercising judicial powers.”[2]

 Merely lodging a complaint against the plaintiff before the authorities do not amount to prosecution; therefore, no action can be maintained for malicious prosecution.

To maintain the claim of malicious prosecution, it must be proved that there was a prosecution against the plaintiff and that the defendant was the prosecutor.

In the case, Hazoor Singh v. Ganga Singh[3], the court discussed various circumstances where a person was considered as a prosecutor, and they are as follows:

  1. The defendant had the knowledge about the evidence that he was providing was false and was not factual.
  2. The evidence that the defendant brought in the court of law was false.
  3. The defendant tried to influence the authorities for the involvement of the plaintiff who was innocent.
  4. There was influence on the police or the authorities to start prosecution.
  • Plaintiff’s Acquittal

The plaintiff can only file for the claim of Malicious Prosecution only if he proves that he was acquitted in the prosecution started by the defendant and no action can be taken by the plaintiff if the case is still pending in the court of law.

The plaintiff has no right to file a suit if he was found liable or guilty for the offense he was accused of. His only remedy would be to file for an appeal, and if he was acquitted in the appeal, only then can he file for the suit of malicious prosecution against the defendant. The acquittal may be on his merits, innocence, or dismissal on technical defects.

In the case, Issardas v. Acissudomat[4], it was held by the court that in the cases where there were more than one persons against whom the suit or complaint was filed, and the proceedings are withdrawn by the complainant as a result of an understanding between any one of the several other people whom the complainant had complained against, the other persons are entitled to bring a suit against the complainant for malicious persecution.

  • Prosecution was without a reasonable and probable cause

The plaintiff must have to prove that the defendant who filed a suit or complaint against him did it without any reasonable or probable cause for the suit to be maintainable. ‘Reasonable or probable cause’ is an honest belief that the accused had committed an unlawful or wrongful act.

In the case, Ramlal v. Mahendra Singh[5], the court held that the burden of proof lies on the plaintiff where he must prove that the suit filed against the plaintiff by the defendant was to harass and defame the plaintiff, and was without any cause.

In the case, Sailaja Kaur v. Lallu, “an illiterate villager had filed a suit concerning some land and had engaged an advocate for the purpose. In a latter litigation, relating probably to the same matter or connected matter the same advocate appeared against the villager. The villager filed a complaint to the Bar Council against the advocate for professional misconduct. The Bar Council finding some similarity in the land in dispute ultimately came to the conclusion that there were two different lands and gave the benefit of doubt to the advocate.”

“The advocate then sued the villager for malicious prosecution. As there was reasonable and probable cause for the complaint made by the villager before the Bar Council and further the institution of the suit was not motivated by malice, the court turned down the plea for malicious prosecution.”[6]

In another case, Sheo Singh v. Ranjit Singh and Others[7], it was held that the plaintiff must prove the presence of malice, and the absence of a reasonable cause as two different and separate facts, and that the courts will not infer from the mere absence of a reasonable cause, that the complaint was malicious or vice-versa.

  • Malicious intention must be present

The plaintiff has to prove the malicious intent of the defendant which resulted in his prosecution.“Malicious intent could be any ulterior motive on the part of that person, not in furtherance of justice.

It is very important for the plaintiff to prove malice, as the mere absence of reasonable and probable cause will not create any liability alone for the defendant.

The defendant may not be acting with malice, in the beginning, however, if during the proceedings, he comes to know about the innocence of the plaintiff, then the continuance of the proceedings against the plaintiff by the defendant would be considered as malicious.

In the case, Antarajyami Sharma v. Padma Bewa[8], “The plaintiff was prosecuted in a criminal case for outraging the modesty of a woman on allegation of the defendants who claimed to have seen him committing the offence. These allegations were unfounded and the plaintiff was acquitted. The court found that not only the plaintiff was innocent but also there was no reasonable and probable cause for such an accusation. The defendants were held liable jointly and severally, to pay damages.”

  • Damages must be suffered by the plaintiff

Malicious prosecution is not actionable per se, hence, the plaintiff needs to prove the damages that he had suffered in order for his suit to be maintainable. According to Holt C.J, damages can be referred to as ‘damage to a man’s fame (or reputation), person or property’.

“In other words, an unwarranted prosecution may damage a person’s reputation. Further, harm to the person has been interpreted broadly to include the threat of imprisonment and actual imprisonment. Harm to property signifies the costs incurred by the claimant in defending the charges.

In the case, C.M. Agarwalla v. Halar Salt and Chemical Works[9], the court held that there could essentially be three types of damages, and they are as follows:

  1. Damages to one’s reputation or fame.
  2. Damage to one’s life, limb, or liberty.
  3. Damage to one’s property

It must be kept in mind that the damages must not be remote but should be reasonable as a result of the malicious prosecution by the defendant. And the court must have to consider the following points to assess damages.

  1. The nature of the offense that the plaintiff was charged by the defendant.
  2. The problems and inconvenience caused to the plaintiff.
  3. The monetary loss incurred by the plaintiff for hiring a lawyer and various other reasons.
  4. The status of the person prosecuted.
  • What is the difference between false imprisonment and malicious prosecution?

Following are the differences between false imprisonment, and malicious prosecution:

FALSE IMPRISONMENTMALICIOUS PROSECUTION
“False Imprisonment refers to the wrongful refrainment of the plaintiff’s personal liberty.”“Malicious Prosecution refers to the wrongful and malicious prosecution of the plaintiff in the court of law.”  
In false imprisonment, the plaintiff is restraint by the defendant, its agent, or any private individual.In malicious prosecution, the plaintiff is arrested and restricted by the authorities.  
In false imprisonment, the injury is caused to the plaintiff by the defendant himself.In malicious prosecution, the injury is caused by the court, but at the instance of the defendant who filed the complaint.
Here, the plaintiff is directly restraint, and his movements are restricted.Here, the plaintiff is indirectly restrained by the proceedings in the court.
The burden of proof lies on the defendant.The burden of proof lies on the plaintiff.
Malice is not an essential element in false imprisonment.Malice is an essential ingredient in malicious imprisonment.
  • Conclusion

“Malicious prosecution is an institution of proceeding by a person against someone who has initiated a malicious proceeding against him in order to cause him harm and damage. For the institution of the malicious proceeding, it is essential that the plaintiff should prove that he was falsely prosecuted by the defendant without any reasonable and probable cause and the defendant has malafide intention to cause damage to the plaintiff. For the initiation of malicious prosecution, the plaintiff should be acquitted by the court.”


[1]AIR 2007 SC 976

[2]AIR 1976 Raj 83

[3]AIR 1973 Raj 82

[4]AIR 1940 Ker 230

[5]AIR 2008 Raj 5

[6]AIR 1983 Raj 193

[7]AIR 1983 All 105

[8]AIR 2007 Ori. 107

[9]AIR 1977 Cal 356

Certificate Course on Research Methodology with Money-back Guarantee

Apply