Malicious Prosecution

By | May 21, 2018


Malicious Prosecution is a civil as well as criminal wrong which brings a civil suit as well as a criminal proceeding. Malicious Prosecution is firstly described under Law of Torts and it is also mentioned under Indian Penal code.


Malicious Prosecution is an institution of a civil or criminal proceeding by a person against another person without any actual cause, just to harm the reputation of that person. It is basically filing of an unnecessary case against any person to trouble him. Malicious Prosecution is an abuse of Judicial System as it aims to provide justice to innocent people but under Malicious Prosecution, innocent people are convicted.

Under malicious prosecution, the defendant becomes the plaintiff and plaintiff becomes the defendant. The case of Malicious prosecution must be filed within a year of the malicious suit. For the execution of malicious proceeding, it is essential it should be initiated by a criminal proceeding against an innocent person without any reasonable cause. The person filing the case of malicious prosecution must have suffered damages and harm and he has to prove the same in the court to initiate the proceeding.


As explained in Riegel Vs. Hygrade Seed Co., [47F. Supp. 290, 293 D.N.Y. 1942] – Malicious Prosecution is for the recovery of damages to person, property, or reputation, shown to have approximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with malice, and which has terminated unsuccessfully.

Elements of Malicious Prosecution

In order to succeed in the proceeding against malicious prosecution, it is essential for the plaintiff to prove these elements in the court.

  • Prosecution by the defendant.
  • Absence of reasonable and probable cause.
  • Prosecution with malicious intention.
  • Termination of the proceeding in the favour of the plaintiff.
  • The plaintiff has to prove that he has suffered in person, reputation, or pocket due to the initial proceeding. Even though the proceeding was terminated in his favour, but due to the charges he has suffered damage.
1. Prosecution by the Defendant

The word prosecution defines proceeding in the court of law. The malicious proceeding which are initiated in the court of law and is accepted by the magistrate for trial are only taken into consideration. The plaintiff who was a defendant in the initial case should be charged by a criminal proceeding under the court of law.

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

In this case, after the theft has been committed in the defendant’s house, he informed the police that he suspected the plaintiff for the same. Thereupon, the plaintiff was arrested by the police but was subsequently discharged by the magistrate as the final police report showed that there was no evidence connecting the plaintiff with the theft. In a suit for malicious prosecution, it was held that it was not maintainable because there was no prosecution at all as mere police proceedings are not the same thing as prosecution

2. Absence of reasonable and probable cause

The plaintiff is under the burden to prove that he is prosecuted without any reasonable cause. The defendant must act as a reasonable and prudent man. There will be reasonable cause when the defendant thinks that there are sufficient grounds to prove that the plaintiff is guilty of the crime. When the defendant knows that there is no reasonable cause and has intentionally prosecuted the plaintiff, gives rise to malicious proceeding.

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

This case has laid down three principles which are necessary to form a reasonable and probable cause:

  1. The person making the complaint has taken due care to be informed of the facts.
  2. He honestly believes that the facts on the basis of which he is making allegations are true.
  3. The facts were such as to constitute as prima facie evidence.
3. Malice

Malice under malicious prosecution is a wrong intention or malafide intention which can be the result of anger or jealousy to prosecute someone wrongfully to cause him harm and damage to his reputation. The plaintiff has to prove the wrong intention of the defendant for prosecuting him.

But if the defendant honestly believes belief that the plaintiff is guilty and he has honestly prosecuted him, in that case, he will not be charged with malicious prosecution.

In Allen Vs. Flood [(1898) AC 1] a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of their Lordships in the House of Lords suggested that malicious prosecution was not really an exception to this rule. The settled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of malice i.e. the Burden of Proof lies upon the plaintiff.

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

In this case, plaintiff worked as a maid in the house of the defendant. Plaintiff filed a complaint against defendant stating that when she was working in his house, he tried to rape her. Due to this complaint, defendant was charged by the court of law and this caused harm to him and his reputation. But, due to no proper evidence, he was acquitted. He then filed a suit of malicious prosecution against the plaintiff.

The court, in this case, held that the plaintiff made a false statement against the defendant and was liable for compensating the damages.

4. Termination of proceeding in favour of Plaintiff

The plaintiff, who is wrongly charged of an act should be acquitted by the court of law to initiate the case of the malicious proceeding. The plaintiff can file a case for malicious prosecution only when he was acquitted by the court of law and he has to prove it in the court that the initial case was terminated in his favour.

“The plaintiff cannot initiate malicious proceeding if he was convicted by the court of law.”(Reynolds Vs. Kennedy [1784 1] wils. 232)

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

In this case, the son of Ram Lal committed suicide for which Ram Lal has filed a criminal complaint against the defendant that he was the reason behind his son’s death. The proceeding went on over three years. The defendant was even kept in a custody for three months and then acquitted due to lack of evidence. The defendant then filed a suit of malicious prosecution against the plaintiff.

The plaintiff had even made an appeal against the acquisition in the Rajasthan High court. Though he died during the proceeding, his legal representatives continued the proceeding in which, Rajasthan High Court held that the plaintiff could not prove malicious prosecution as there was no malafide intention. The court observed:

“Merely because the plaintiff came to be acquitted or discharged by the criminal court as the prosecution failed to prove the case beyond doubt as is required in criminal law, it does not mean that such acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution.”

5. Damage has to be proved

For the execution of malicious prosecution, the plaintiff has to prove in the court of law that he has suffered damage due to the initial proceeding. Even though the proceeding was terminated in his favour, but due to the charges he has suffered damage.

Plaintiff can claim damage on the following grounds:

  • That the prosecution has caused damage to his property.
  • That the prosecution has affected his reputation in the society.
  • That it has caused him inconvenience and monetary loss also.

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

Plaintiff was the Sarpanch of the village Shirputi and defendant no. 1 was in the service as Gram Sevak under Zila Parishad and defendant No. 2 was a teacher in a school run by Zila Parishad. The plaintiff contended that he made several reports against the defendants for their misconduct. The report was made against defendant No.1 for his misbehavior, defalcation and forgery of accounts and also against defendant no.2 for his absence from duties and other irregularities.

It is contended that both the defendants then hatched a conspiracy to involve the plaintiff in a criminal conspiracy and such that the defendant No.1 had lodged an F.I.R. with the police that was assaulted by the plaintiff while he was discharging his duties. On the basis of the F.I.R and investigation by the police, criminal proceedings were launched against the plaintiff. The plaintiff was acquitted of the charges against him. The prosecution was launched without any reasonable cause and due to the false prosecution, there was a loss to his prestige and reputation and his status was lowered down in the society being a sarpanch and a politician.

The court has held that prosecution made by defendants was without any reasonable and probable cause and with a malafide intention and it has caused harm to the plaintiff’s reputation. The court held that both the defendants are liable to compensate the plaintiff for damage.


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 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 plaintiff. For the initiation of malicious prosecution, the plaintiff should be acquitted by the court.

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.

By – Anusha Vijayvargiya

New Law College, Bharti Vidyapeeth Deemed  University – Pune


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