Malicious Prosecution

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Published on : July 05, 2015's Profile and details

Liability of Malicious Prosecution has always had to steer a path between two competing principles- one, freedom of action that everyone should have to set the law in motion and to bring criminals to justice and two, the necessity to check false accusation against innocent people.


The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance supplanted it. The gap was filled by an action on the case which appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts.


Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known as “abuse of process”, that is, abuse of process of law for personal interest.

In Saville v. Roberts, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might ground the action. Malicious prosecution might damage-

a. A person’s fame (i.e. his character)
b. Safety of his person
c. Security of his property by reason of his expense in repelling and unjust charge


In an action for malicious prosecution, the plaintiff must prove the following:
1. The defendant prosecuted him
2. The prosecution ended in his favour
3. The prosecution lacked reasonable and probable cause
4. The defendant acted with malice
5. The plaintiff suffered damage to his reputation or to the safety of person or to security of his property (only under English law). In India, only for aggravated damages.

A. Prosecution

It is not necessary that the defendant has to be the prosecutor. The defendant, though, should in substance be the person responsible for the prosecution being brought. Thus there are two elements involved herein:

a. Plaintiff was prosecuted
b. Defendant was the prosecutor

To prosecute is to set the law in motion by an appeal to some person clothed with judicial authority in regard to that matter, i.e. the defendant should set the Magistrate in motion. An investigating officer will not be liable unless he was party to the falsity of the case. Similarly, no witness or pathologist who acts in good faith can be held liable.

Martim v. Watson (1995) It was laid down that where a person falsely and maliciously gives a police officer information indicating that some person is guilty of a crime and is further willing to give evidence in Court, he is clearly the prosecutor in the case.

B. Favourable termination of the prosecution

The plaintiff must show that the prosecution ended in his favour, which can take place due to various reasons like:
a. A verdict of acquittal
b. By discontinuance of the prosecution by leave of the Court
c. By quashing of the indictment for a defect in it
d. By corum non judice proceedings

There has been significant change in law in this area:
Reynolds v. Kennedy
(1784) there can be no action if the plaintiff had been convicted, even if the conviction was later appealed.

The law does not regard the above principle in today’s scenario.

Shiv Shanker Patel v. Phulki Bai (2007) Plaintiff faced criminal prosecution for 8 years for theft of crops because of wrongful prosecution in fact of point. Rs. 10,000 was paid as damages for loss of reputation and mental agony

C. Lack of Reasonable and Probable Cause

In order for there to be a reasonable and probable cause, following conditions have to be satisfied:
1. An honest belief of the accuser in the guilt of the accused
2. Such belief to be based on an honest conviction of the existence of circumstances which led the accused to that conclusion.
3. Belief is on such grounds as would lead any fairly cautious man in the defendant’s situation to believe so.
4. Circumstances so believed by the accuser must be such as amount to a reasonable ground for belief in the guilt of the accused.

Abrath v. North Eastern Railway (1886) laid down 3 principles necessary to form a reasonable & probable cause:
1. Person complaining took due care to be informed of the facts
2. He honestly believed his allegations to be true
3. The facts were such as to constitute prima facie evidence.

D. Malice

The prosecution was instituted with malice, i.e. with an indirect and improper motive and not in furtherance of justice. The bringing of charge false to the knowledge of the prosecutor imports in law malice usufficient to support a civil action.

Hicks v. Faulkner
. If the defendant has honestly and bona fide instituted the prosecution, he is not liable even though due to a defective memory, he had forgotten the true facts and has gone on with the prosecution.

State of Tripura v. Shri Hardhan Choudhary (2006) Forest officials filed cases against plaintiff for felling trees without any evidence. Plaintiff was acquitted and was rewarded Rs. 25,000 for malicious prosecution.

E. Suffered in person, reputation or pocket

Het Ram v. Madan Gupta (2007) Plaintiff was maliciously charged by defendant for setting fire to his house. Plaintiff was acquitted and rewarded Rs. 55,000 for mental agony, loss of business and litigation expenses.

A. Sharma v. P. Bewa (2007) Plaintiff accused for outraging the modesty of women on unfounded grounds. He was acquitted and the defendant was held liable to pay damages.


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