Malicious Prosecution: Essentials and Defence | Overview Introduction Background Evolution of malicious prosecution Essentials of malicious prosecution and Indian courts Prosecution Absence of reasonable and probable cause Malice Favourable termination of the prosecution Damage Defences available to malicious prosecution claims Distinction between Malicious Prosecution and False Imprisonment Conclusion This article deals with the various aspects of malicious prosecution.… Read More »

Malicious Prosecution: Essentials and Defence | Overview Introduction Background Evolution of malicious prosecution Essentials of malicious prosecution and Indian courts Prosecution Absence of reasonable and probable cause Malice Favourable termination of the prosecution Damage Defences available to malicious prosecution claims Distinction between Malicious Prosecution and False Imprisonment Conclusion This article deals with the various aspects of malicious prosecution. It starts with...

Malicious Prosecution: Essentials and Defence | Overview

This article deals with the various aspects of malicious prosecution. It starts with the evolution of the tort of malicious prosecution, goes into and explains the various essential ingredients of malicious prosecution with extracts from relevant case laws and finally touches upon the defences available for malicious prosecution.


For the efficient working of the criminal administration of Justice, the law expects every citizen to bring criminals to the courts of justice. But, because of the improper personal motives of the complainant, at times, if an innocent person is hauled up before a court of law, it may result in imprisonment or pecuniary loss to him. Hence, the law has recognised a right in such person to get damages from the person responsible for his prosecution.

The term ‘Malice’ in common parlance means ill-will against a person. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “a proceeding in a court of law charging a person with a crime”.

‘Malicious Prosecution’ means “a prosecution on a charge of crime, which is willful, wanton or reckless or against the prosecutor’s sense of duty and right.”

Definition: Malicious prosecution is the malicious institution against another of unsuccessful criminal or bankruptcy or liquidation proceeding without reasonable and probable cause.


In India, when a person is prosecuted by the criminal justice system or is put through civil litigation, all he can do is defend himself. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court.

The mental stress and agony, the loss of reputation, loss of livelihood and earning, the costs of defending the prosecution, the physical hardships etc. are not accounted for; and the victim of malicious litigation has no legal recourse to protect himself against such abuse of the process of law.

Often while considering malicious prosecution, the ill-effects it has, on the fundamental rights of the aggrieved person, are totally ignored. Even the present provisions of law which vaguely talk about malicious prosecution and punishment thereto, do not consider the violation of fundamental rights like the right to life & liberty, right to reputation, right to work, etc.

Even the Supreme Court of India has said that Right to Reputation is part and parcel of Right to Life and Personal Liberty guaranteed by the Constitution of India[1].

The same was reiterated by the Hon’ble Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh[2]. The person who is aggrieved by malicious prosecution, his various rights are trampled upon by having to face the unnecessary and malicious litigation, his right to reputation is totally destroyed considering the social stigma attached to prosecution in our country, especially if it involves the arrest of a person.

Thus, the aggrieved person can claim compensation for the infringement of his rights under the law of torts. This compensation may not get back his reputation, although, it acts as exemplary damage and has the ability to prevent/ reduce such malicious prosecution.

The Supreme Court while deciding a case observed that instances of police machinery filing malicious charges is increasing day by day, and such cops should be punished. The Supreme Court has observed that there is a rising trend amongst the women to file malicious cases under Sec. 498A of Indian Penal Code, and that the police should not make automatic arrests in such cases as it permanently scars the reputation of the person. [3]

In such a social scenario, it is the need of the hour to address this issue. It is necessary to add detailed legal provisions that act as an effective deterrent for such vexatious and malicious litigation and compensates the people for their loss of reputation, earnings, livelihood, and the trauma.

Evolution of malicious prosecution

The law of malicious prosecution has evolved generously through ages. The basic evolution of the law has taken place in England. The history of the tort can be traced back to the writ of conspiracy, as early as the reign of Edward I. English courts were concerned about the improper use of judicial proceedings as early as the 10th century.[4] In its contours of development, the tort has grown to provide protection and remedy to those who have been wronged by an abuse of the judicial process.

Malicious prosecution has its origin in England and evolved in the 18th and 19th century. This was an outcome of the misuse of due procedure of law, in the 18th and 19th century in England. In those days, England witnessed a trend of misuse of the judicial process, especially criminal prosecutions for personal spite.

However, societal changes played a major role in this evolution. It was, in fact, the perceptions of the society, both towards the menace of malicious cases as well as towards the usage of the justice system which led to its development.

Another important contribution to the menace of unjust prosecution to the English law has been the introduction of the office of the public prosecutor. The action or the remedy of malicious prosecution has long been recognised in American law.[5] The concept of malicious prosecution was formulated in America by Chief Justice Taney. He stated that,

“The tort was initially applied to criminal proceedings; to cases where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he was not guilty.”[6]

America has made the laws against malicious prosecution, to act as effective deterrents against crime and protector of people’s right, but it has gone ahead and given it the status of a federal remedy. In India, where fundamental rights are protected with all its vigour, it is about time that the law of malicious prosecution is also granted constitutional status.

Essentials of malicious prosecution

In order to effectively understand the tort of malicious prosecution, it is necessary to study every ingredient which it is comprised of. In Glinski v. McIver,[7]Viscount Simonds had held that the plaintiff in order to succeed has to prove the following essentials. The English writers[8] on the whole seem to endorse the four essentials laid down by Viscount Simonds viz.,

In malicious prosecution, the plaintiff has to prove the following essentials,

  1. That he was prosecuted by the defendant;
  2. That the prosecution ended in his favour;
  3. That the prosecution lacked reasonable and probable cause;
  4. That the prosecution was malicious.

Essentials of malicious prosecution and Indian courts:

In S.T. Sahib v. Hasan Ghani[9], it was held that,

“The action for malicious prosecution is part of the common law of England. In India, the law on the subject is exactly the same as the law in England and the U.S.A.”

There are five ingredients to the tort of malicious prosecution, namely:

  1. The proceedings must have been instituted, or continued by the defendant;
  2. He must have acted, without reasonable and probable cause;
  3. He must have acted, maliciously, and;
  4. The proceedings must have been unsuccessful.
  5. That the plaintiff has suffered damage.

All the above-mentioned conditions must co-exist before a plaintiff can succeed.[10]

  1. Prosecution

There must be a valid prosecution made by the defendant against the claimant. For the purposes of malicious prosecution, a criminal charge may include ‘all indictments involving either scandal to reputation or the possible loss of liberty to the person.’ The tort also extends to certain forms of abuse of civil process.

A prosecution is said to exist when: “A criminal charge is made before a judicial officer or tribunal and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it, and is called the prosecutor.” [11]

Prosecution is not expressly defined in The Code of Criminal Procedure in India. However, Section 320[12] of the Code must be kept in mind while analysing the definition of ‘prosecution’, to ensure that a wider context is given to the same. It cannot be limited only to the process which starts from the formal act of taking cognizance by the Court. It has been held that the ambit of ‘prosecution’ cannot be extended to the mere filing of a complaint before the police. [13]

Commencement of the prosecution:

To understand when prosecution begins, reference may be made to Madan Mohan Singh v. Bhrigunath Singh[14]. In the said case, when a person who was remanded to jail custody for almost 40 days on a charge of dacoity, although ultimately no cognizance was taken of the offence, the Judges held that there was “prosecution” for the purpose of an action for malicious prosecution.

There was a conflict on the question of whether there is a prosecution of a person before the process, is issued, calling upon him to defend himself. One view was that a prosecution began only when the process was issued and there could be no action when a magistrate dismissed a complaint under Section 203 of the code of criminal procedure. The other view was that a prosecution commenced as soon as a charge was made before the court and before the process was issued to the accused.

The proper test was indicated by the Privy Council in Mohammad Amin v. Jogendra Kumar Bannerjee[15]. It was held that the test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who dismissed it on the ground that it disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that the damage actually resulted.

Who is liable for malicious prosecution?

Ramaswami, J. has stated the law as below:

“The settled law in India is that the defendant is liable as prosecutor, if he filed a complaint himself or through his agent or advocate or, if the prosecution was by the police of the State, at his instance and on his information.”[16]

It is often seen that the entire machinery of the police, witnesses and even the court staff are hands in glove with the prosecutor. Therefore, it is essential to note that not only the actual prosecutor is liable.[17] The police who investigate the matter is equally responsible for knowingly instituting or continuing a malicious case for ulterior motives or economic gains. Also, witnesses play a crucial part in such maliciously instituted proceedings. Thus, a victim of this entire chain of prosecution will be in a position to avail the remedy of malicious prosecution.

Any statement made by a defendant in the course of an investigation, which suggests the names of prosecution witnesses that have been examined, cannot be construed to mean that he influenced the institution of a case against the said witnesses.[18]

  1. Absence of reasonable and probable cause

This is the most important criterion. A suit for malicious prosecution will succeed if the claimant can prove that there was an absence of reasonable and probable cause for the prosecution by the defendant.

Hawkin’s defined ‘reasonable and probable cause’ as,

‘‘An honest belief in the guilt of an accused based upon…reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’’[19]

This definition was approved by the House of Lords in Herniman v. Smith[20]. Based on the above-stated definition, the following conjectures can be arrived at:

  1. Reasonable grounds of the existence of a state of circumstances;
  2. Assuming those circumstances to be true, whether a reasonable man placed in the position of the defendant would have come to the conclusion that the accused might be guilty;
  3. And the defendant must have an honest belief in the guilt of the plaintiff.

In Glinski v. Melver[21] it was stated that reasonable and probable cause means “that there must be cause for thinking that the plaintiff was probably guilty of the crime imputed.”

Burden of proof:

The plaintiff must prove that the prosecution was instituted against him, without any reasonable and probable cause, and that it was instituted with a malicious intention, which was wrongful in point of fact. [22] The Plaintiff must also prove that the facts and circumstances of the case at the time of the offence were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause.

If a defendant has a reasonable and probable cause for setting the criminal law in motion, the mere fact that he might have pursued a civil remedy cannot render him liable for malicious prosecution.

Lack of reasonable and probable cause is to be understood objectively; it does not connect the subjective attitude of the accuser. The test appears to be, as to whether there was reasonable and probable cause for any discreet man to make the charge, complained of. Mere circumstances of suspicion cannot be said to be reasonable and probable cause.[23]

  1. Malice

To justify a suit for malicious prosecution, the plaintiff has to prove that the prosecution was instituted by the defendant due to a malicious intention. i.e. the plaintiff was actuated by malice in prosecution.

The term ‘malice,’ as used in the expression “malicious prosecution” is not to be considered in the sense of ill-spite or hatred against an individual, but of malus animus, and as denoting that, the party is actuated by improper and indirect motives.[24] The concept of malice, is differentiated from the concept of lack of reasonable and probable cause. It is extremely difficult to infer spite from the conduct of a person.

A combination of malice and lack of reasonable and probable cause is essential to prove cause of action. Thus, however wrong-headed a prosecutor maybe, if he honestly and genuinely believes that the accused is guilty of a criminal offence, there cannot be initiation of malicious prosecution proceedings.[25]

The Supreme Court has reiterated the principle in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[26]as,

“Malicious Prosecution – Malice. If the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such, as would operate on the mind of a discreet and reasonable man; ‘malice’ and ‘want of reasonable and probable cause’ have reference to the state of the defendant’s mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.”

It is necessary to prove that:

  1. The defendant was malicious, and;
  2. That he acted without reasonable and probable cause.

Malice has been identified to include wrong or indirect motive, but a prosecution cannot be labelled as malicious if it is only inspired by anger. Malice means, narrowly, a prosecution inspired by some motive of which the law disapproves.[27] Malice includes any other improper purpose motivating the prosecutor, such as, to gain a private collateral advantage[28], and an indirect motive, that is, some motive other than a desire to vindicate public justice, or private right.[29]

Proof of malice:

Malice may be proved either by showing that the motive was, and that it can be wrong, or by showing that the circumstances were such that the prosecution can be only accounted for by imputing wrong or indirect motive to the prosecutor[30].

Malice is an element that can be established by inference from circumstances and cannot be proved by direct evidence.[31] However, this does not mean that if a prosecution ends in acquittal the informant was malicious.

In Ram Lal v. Mahendra Singh[32], 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 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 Rajasthan High Court held that the plaintiff could not prove malicious prosecution as there was no mala fide 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, does not mean that such acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution.”

Malice can be best proven by portraying the wrong motive or by indicating that the circumstances of the case were such that the only causation factor of the prosecution was some wrong or indirect motive of the prosecutor. Malice can be proved by evidence of the conduct and declarations.

Malice may be proved by previously stained relations, unreasonable and improper conduct like advertising the charge or getting up false evidence.

4. Favourable termination of the prosecution:

Unless the proceedings instituted are terminated in his favour, the plaintiff cannot initiate a suit for malicious prosecution. So is the view of Bhagwati, J. :

“No action for malicious prosecution or for any other malicious proceeding which involves a judicial decision of any question at issue between the parties will lie, until or unless the prosecution or other proceeding has been terminated in favour of the person complaining of it. So long as proceedings are pending, no action lies on the ground that they have been wrongfully instituted. It is a rule of law that no one should be allowed to allege, of a still-pending suit as that is unjust.”[33]

It is essential for the claimant to show that the prosecution ended in his favour, or the proceedings eventually are discontinued. It will also suffice if the order is quashed on its appeal, which leads to the acquittal of the claimant. Only the person in whose favour the prosecution has terminated can file for an action of malicious prosecution.

Conversely, if a conviction stands, then the claimant will fail in an action for malicious prosecution. His only remedy, in that case, is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.

Hence, it is immaterial, how the termination came about; whether by the decision of the court or by the discontinuance of prosecution or by some technical defect or want of prosecution. Favourable termination does not signify that the plaintiff is innocent, or he has been acquitted, but that he has not been convicted.[34] The threshold to maintain a suit for malicious prosecution is undoubtedly high, as all of the aforementioned requisites have to be met to ensure success in the suit.

  1. Damage:

It has to be proved that the plaintiff has suffered damages as a result of the prosecution. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. The damages may not necessarily be pecuniary.

Holt C.J. in Savile v. Roberts[35] refers to three types of damages which the plaintiff must prove to have suffered to maintain an action for malicious prosecution. They are

  1. Injury to his reputation – The damage to a man’s fame as where the matter whereof he is accused is scandalous
  2. Injury to his person – The damage done to a person as to where man is put to a danger of losing his life, limb or liberty
  3. Injury to his property – The damage to a man’s property as where is forced to expend money in necessary charges, to acquit himself of the crime of which he is accused.

The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing the damage the court to some extent would have to consider:

  1. The nature of the offence the plaintiff was charged of
  2. The inconvenience to which the plaintiff was charged to
  3. Monetary loss and
  4. The status and prosecution of the person prosecuted

Defences available to malicious prosecution claims

Since the tort of malicious prosecution includes the mental element (malice, reasonable and probable cause) which needs to be proved, there are certain shortcomings. These shortcomings are in the form of numerous defences that can be availed in a suit of malicious prosecution.

There are various types of defences that can be taken when one is charged with a claim of malicious prosecution, such as:

  1. Reasonable suspicion that the plaintiff committed the alleged crime for which he was prosecuted.
  2. An honest belief by defendant in the guilt of the plaintiff.
  3. The existence of a reasonable or probable cause for the prosecution of the plaintiff can serve as a complete defence.
  4. When the prosecution is the discretion or the act of the officers of the law.
  5. Contributory Negligence in a situation where the plaintiff is at fault. Such a situation can arise when the plaintiff, through misleading conduct, creates malicious impression which formed the basis for the reasonable suspicion and prosecution for the alleged crime.
  6. Judicial authority/Judicial Immunity.
  7. Statutory or lawful authority.
  8. Preservation of the security of the state/country.
  9. Statutory Bar, e.g.: Statute of Limitations, which provides a limitation period for legal action. After the expiration of the said period, the claim is invalid and cannot be permissible in court.

However, not all of these defences can be foolproof in their bare form.

Distinction between Malicious Prosecution and False Imprisonment

These two concepts, though talk about violation of certain fundamental rights of a person, do differ primarily on certain aspects.

  1. In case of malicious prosecution, malice is an essential ingredient, whereas in false imprisonment proving malice is immaterial.
  2. Mistake of fact can be a valid defence in malicious prosecution since it absolves the person from the malice part. However, in case of false imprisonment mistake of fact is not a valid defence and the act will still constitute as wrongful confinement.
  3. In the case of malicious prosecution, the actual damage done to the person due to the malicious prosecution needs to be proved. This is not the case with false imprisonment; the act of wrongful confinement is actionable per se without the evidence of damage.
  4. In malicious prosecution, it is necessary to show that the proceeding was without any reasonable and probable cause. However, in the case of false imprisonment absence of reasonable cause is immaterial.


The concept of malicious prosecution plays an important role in the protection of a man’s reputation. Reputation is considered to be the most important facet of any person’s life. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. It acknowledges not just the importance of a person’s reputation, but also the trauma every person has to suffer while dealing with any litigation and the consequent losses thereto.

Making malicious prosecution, a tort is useful in the following ways:

  1. Deterrence is created amongst people against instituting malicious litigation,
  2. Further, this helps the court save its time from wasting on such frivolous litigations and eventually the number of cases in court drops down since only the real legal disputes remain, thereby reducing the pendency of cases in courts.

[1] Deepak Bajaj v. State of Maharashtra and Ors, AIR 2009 SC 628.

[2] 2014 ALL SCR 661.

[3] Arnesh Kumar v. State of Bihar & Anr, (2014) 8 SCC 273.

[4] John T. Ryan, Jr., Note. Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse? 64 Geo. Wash. L. Rev. 776, 778 (1996).

[5] W.Page Keeton et al., Prosser and Keeton on the Law of Torts, 5th Ed., (1984) (providing overview of malicious prosecution in American Tort law and its extension to malicious civil claims); cf. Note, Groundless Litigation and Malicious Prosecution Debate: A historical analysis, 88 Yale L.J. 1218.

[6] Dinsman v Wilkes, 53 U.S. (12 How.) 390, 402 (1851). Chief Justice Taney also mentioned the tort’s extension to maliciously initiated civil cases.

[7] (1962) A.G. 726.

[8] Salmond, Torts, at p.720 (1961): Winfield, Tort, at p.575 (1967);

[9] AIR 1957 Mad. 646 at p. 652

[10] Major Gian Singh v. SP Batra, AIR 1973 (P&H) 400 at p. 408.

[11] Halsbury’s Laws of England, Vol. 22 (2nd Ed. By Halisham) at Page 3

[12] Compounding of Offences.

[13] Bolandarda Pemmayya v. Ayaradara Kushalappa, AIR 1966 Mys. 13 at p. 14

[14] AIR 1952 Pat. 283.

[15] (1948) 51 CWN 723 (PC)

[16] 3 C. Ambalam v Jagannatha, AIR 1959 Mad. 89

[17] Badduri Chandra Reddy v Pammi Rami Reddy, (1954) 2 M.L.J. 189, p.194

[18] Girja Prasad Sharma v. Umashanker Pathak, AIR 1973 MP 79 at p. 82.

[19] Hicks v Faulkner (1878) 8 Q.B.D. 167, at p.171

[20] (1938) A.C. 305.

[21] (1962) AC 726 at p. 767

[22] Darshan Pandey v. Ghaghu Pandey, AIR 1948 Pat. 167 at p. 168

[23] Kapoor Chand & Rikhi Ram Mahajan v. Hakim Jagdish Chand Sripat Rai, AIR 1974 (P&H) 215 at p. 218.

[24] West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976

[25] Raja Braja Sunder Singh Deb v. Ramdeb Das Pattanaik, AIR 1944 P.C. 1.

[26] AIR 2007 SC 976

[27] Salmond, Jurisprudence, at p.374 (1966)

[28] Nurse v. Rustomji, AIR 1924 Mad. 565: 46 MLJ 353.

[29] Mitchell v. Jenkins (1833) 5 B & Ad. 588.

[30] Mitchell v. Williams, (1843) 11 M&W. 205.

[31] Jogendra Garababu v. Lingaraj Patra, AIR. 1970 Orissa 91 at p. 100

[32] AIR 2008 Raj 8, (2008) 2 MLJ 349

[33] Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. 320.

[34] Gilchrist v. Gardner, (1891) 12 N.S.W. Law, p. 184.

[35] (1899) 1 Raym 374

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Updated On 30 May 2020 10:09 AM GMT
Aparna Ramamoorthy

Aparna Ramamoorthy

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