Law

of Torts including MV Accident and Consumer Protection Laws II

Chapter I: Torts Against Person and Personal Relations:

Part IV: Malicious Prosecution

¡  Both torts, False Imprisonment and Malicious Prosecution, focus on loss
of liberty.

¡  Malicious prosecution means the institution, against an innocent person,
of unsuccessful criminal proceedings without reasonable and probable
cause and in a malicious spirit and not in furtherance of justice and
causing damage to the plaintiff in person, pocket or reputation.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  To make one liable for tort of malicious prosecution, the plaintiff need to
prove the following essential conditions:

¡  Prosecution by the defendant

¡  Termination of proceedings in plaintiff’s favour

¡  Prosecution should have been started without any reasonable and

probable cause

¡  Prosecution must have been initiated with a malicious intention

¡  Plaintiff must suffer damage.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  The requirement of prosecution by the defendant involves two elements:

¡  First that the plaintiff was prosecuted and

¡  Secondly, that the defendant was the prosecutor.

¡  To prosecute means to set the law in motion, which is done by an appeal

to some person clothed with judicial authority in regard to that matter.
The gist of the action is that the defendant set the Magistrate is motion.

¡  Illustration: An investigating office is not liable unless he was a party to

the falsity of the case or a pathologist preparing a post mortem report or
a person appearing merely as a witness cannot be held to be a
prosecutor.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  D.N. Bandopadhyaya v. Union of India, AIR 1976 Raj 83
¡  Prosecution means the law should be set in motion by making a
complaint before an authority exercising judicial powers.

¡  Kapoor Chand v. Jagdish Chand, AIR 1974 P & H 215

¡  The Punjab High Court held that the proceedings before Punjab
Ayurvedic and Unani Medical Council is prosecution and a suit for
malicious prosecution can be lodged for such proceedings.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Hazoor Singh v. Ganga Singh, AIR 1973 Raj 82
¡  The Rajasthan High Court considered a person as a prosecutor in the
following circumstances:
¡  The defendant’s information was false in his own knowledge;
¡  The defendant brought false evidence;
¡  The defendant tried to influence police for involving innocent person;
¡  The police was influenced to start prosecution.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh, (1907-08) 35 IA
189

¡  In an action for damages for malicious prosecution, it is not in all cases

necessary to show that the defendant is the person who actually
prosecutes.

¡  Where the defendant has given to the police a report which is false to his
knowledge, and results in a prosecution by them, and has taken a
principal part in the conduct of the case both before the police and the
Magistrate, the remedy provided by this form of action is available to an
innocent plaintiff aggrieved by an unfounded charge.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  No action for malicious prosecution lies until the prosecution has
terminated in favour of the person complaining of it.

¡  State of Bihar v. R.P. Baidya, AIR 1980 Pat 267

¡  Where the High Court orders quashing of the criminal case at the
cognizing stage being frivolous in nature, it puts an end to the criminal
proceedings launched against the plaintiff.

¡  Issardas v. Acissudomat, AIR 1940 Ker 230

¡  Where proceedings were withdrawn by the complainant as a result of

settlement with one of the several persons complained against, the other
persons are entitled to bring an action for malicious prosecution.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  ‘Reasonable or probable cause’ is an honest belief in the guilt of the
accused based on a full conviction, founded upon reasonable grounds,
of the existence of a state of circumstances, which, assuming them to be
true, would reasonably lead an 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Sailaja Kaur v. Lallu, AIR 1983 Raj 193
¡  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 suit was not
motivated by malice, the court turned down the plea for malicious
prosecution.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Three Rivers DC v. Bank of England (No.3), [2003] 2 A.C. 1

¡  The House of Lords found that liability in the tort of misfeasance in public
office arose where the action of a public officer were carried out in the
knowledge of, or with reckless indifference to the probability of, injury
being caused to a claimant, or a class of persons of which the claimant
was a member.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Two forms of liability for misfeasance in public office exist at the
common law.

¡  1. Exercise of public power for improper or ulterior motives (“targeted

malice”)
¡  2. Public officer knowingly acting beyond his or her powers and in the
knowledge that such actions would probably result in injury to the
claimant (“untargeted malice”). Reckless indifference is sufficient to
establish liability, but not mere negligence.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  State of Tripura v. Ranjit Kumar Desnath, AIR 2007 Gau. 30

¡  The plaintiff was found in possession of illegal materials, which he was
not legally authorised to keep under license. Case was instituted by the
competent authority for alleged violation of provisions of Essential
Commodities Act.

¡  The criminal case launched against the plaintiff was held to be not a
malicious prosecution.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Ramlal v. Mahendra Singh, AIR 2008 Raj 5

¡  The plaintiff and his father were implicated in the offence of murder of
the son of the complainant and were acquitted.

¡  It was held that such acquittal or discharge cannot boomerang upon

defendant in a case for malicious prosecution. The burden of proof lies on
the plaintiffs to prove that the prosecution was malicious and was done
with the intention to harass and defame the plaintiffs.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Sheo Singh v. Ranjit Singh and Others, AIR 1983 All 105

¡  In order to succeed in a suit for damages for malicious prosecution,

existence of malice and absence of reasonable and probable cause have
to be established as separate facts. It cannot be inferred from the mere
absence of reasonable and probable cause for a prosecution that it is
malicious or vice-versa.

¡  Bank of India v. Lekhimoni Das, (2000) 3 SCC 640

¡  It was held by the Court that in cases of damages for malicious legal
process, existence of malice and absence of a probable and reasonable
cause must be proved.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Absence of reasonable and probable cause will not alone create liability,
there must be malice.

¡  Padmanabhan Gangadharan v. Matheram Gangadharan, AIR 1976 Ker

49

¡  In a suit for damages for malicious prosecution, the wilful behaviour of

lodging of a false complaint raises a presumption of existence of malice.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Martin v. Watson, [1996] 1 A.C. 74

¡  The defendant maliciously made a groundless accusation of indecent
exposure against the plaintiff, who was subsequently prosecuted. Lord
Keith held that: “Where an individual falsely and maliciously gives a police
officer information indicating that some person is guilty of a criminal offence
and states that he is willing to give evidence in court of the matters in
question, it is properly to be inferred that he desires and intends that the
person he names should be prosecuted.”

¡  Lord Keith further held that: “Where the circumstances are such that the
facts relating to the alleged offence can be within the knowledge only of the
complainant, as was the position here, then it becomes virtually impossible
for the police officer to exercise any independent discretion or judgement,
and if a prosecution is instituted by the police officer the proper view of the
matter is that the prosecution has been procured by the complainant.”
Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA
¡  Lord Keith further held that:

¡  “Where the circumstances are such that the facts relating to the alleged
offence can be within the knowledge only of the complainant, as was the
position here, then it becomes virtually impossible for the police officer
to exercise any independent discretion or judgement, and if a
prosecution is instituted by the police officer the proper view of the
matter is that the prosecution has been procured by the complainant.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  C. Dakshin Moorthy v. K.K.B. Chettiar, AIR 1976 Ker 49
¡  A frivolous complaint for cutting a tree was lodged by the defendant
although he had knowledge that it is a false complaint. The Court
inferred malicious intention with other elements.
¡  Sona Rani Dutta v. Debarata Dutta, AIR 1991 Cal 186
¡  The defendant filed FIR against the plaintiff and his sister alleged that her
ear ring was snatched away from her person whereby she had sustained
bleeding injury to her ear. Thus in order to set police machinery and law
into motion, the defendant added the offence of theft with the offence
of assault knowing well that plaintiff had not snatched away her ear ring,
the FIR was clearly lodged out of malice.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Vishweshwar Shankarrao Deshmukh v. Narayan Vithoba Patil, (2004)
4 Mah LJ 12

¡  Both the defendants hatched a conspiracy to involve plaintiff in a false

criminal prosecution out of sheer enmity and only to suppress their
misconduct.

¡  Plaintiff though was acquitted by criminal court suffered mental torture

and agony for long period of four years and incurred expenses. Plaintiff
was awarded damages of Rs. 12, 500.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  State of Tripura v. Shri Hardhan Choudhry, AIR 2006 Gau. 101

¡  Two criminal cases were filed by the forest officials against the plaintiff
for illegal felling of trees. The records showed that the plaintiff had
applied for extracting trees from his ‘jote land’ of others to the forest
Authority. No evidence was given that the seized trees were found on
‘khas land’ or in the protected forest.

¡  The prosecution was held to be malicious prosecution and Rs. 25, 000/0
were granted as damages to the plaintiff.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Ravinder Kumar Sharma v. State of Assam, (1999) 7 SCC 435

¡  The appellant’s stock of paddy and rice was seized and the appellant was
arrested for allegedly violating the Assam Food grains (Licensing and
Control) Order, 1961. The seized stock was sold. The criminal prosecution
launched against the appellant ended in discharge on the ground that the
Assam Control Order of 1961 was not in force at the time of search,
seizure and arrest of the appellant.

¡  The appellant filed a suit against the State and certain officers for
damages towards mental pain, social and public humiliation, wrongful
confinement and expenses incurred in defending the criminal cases as
well as for the value of the seized stock.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  The High Court held that the defendants to be guilty of malicious
prosecution, abuse of power and unauthorised action and granted relief
only in regard to pecuniary damages but, on the ground of vagueness of
pleadings and evidence, dismissed the suit in respect of non-pecuniary
damages.

¡  The plaintiff filed the instant appeal for non-pecuniary damages. The
Supreme Court overruled the High Court judgment. It observed
“Prosecution launched by police officers under instructions from the
State Government, even though ultimately failing, held, could not be said
to be malicious or without reasonable or without probable cause.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Het Ram v. Madan Gopal, AIR 2007 (NOC) 351

¡  The defendants allegedly made false allegations of setting their house on

fire against the plaintiff. The statement was made without any
reasonable and probable cause and was actuated by malice.

¡  The plaintiff was held entitled to compensation of Rs. 55, 000/- for
mental agony, loss of future business and for litigation expenditure.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Antarajyami Sharma v. Padma Bewa, AIR 2007 Ori. 107

¡  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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Malicious prosecution is not a tort actionable per se i.e. damages needs
to be proven.

¡  Savile v. Roberts (1698) 1 ld. Raym. 374; 91 E.R. 1147

¡  Holt C. J. gave classic definition of damage 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  C.M. Agrawala v. Halar Salt and Chemical Works, AIR 1977 Cal 386

¡  The Calcutta High Court held that the plaintiff can claim damage on the
following counts: damage to reputation, to the person, to the property.

¡  Mohammed Amin v. Jogendra Kumar, AIR 1947 PC 103

¡  To found an action for damages for malicious prosecution based upon

criminal proceedings the test is not whether the criminal proceedings,
the test is whether the proceedings have reached a stage at which
damage to the plaintiff results.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Jagdish Sahai v. Raunak Ram, AIR 2012 P & H 142

¡  Charges of forgery were leveled against the plaintiff. The Trial Magistrate
clearly stated that the vice president or other members of the society and
not the plaintiff, who committed the offence.

¡  The complainant was not an expert so as to know by himself that the

resolution was forged or that it was forged to the plaintiff. The FIR was
lodged without seeking opinion of a handwriting expert. Persons
involved in the process through which truth could be known were even
not talked with. The FIR was lodged without collecting any evidence on
the point of forgery.

¡  The court found that the plaintiff had sufficient criminal trial for a
number of years only due to the vengeance of the complainant. Grant of
compensation of Rs. 1, 00, 000/- was held to be proper.
Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA
¡  1. False imprisonment is wrongfully restraining the personal liberty of the
plaintiff, malicious prosecution is wrongfully setting the criminal law
against him.

¡  2. In false imprisonment, it is the act of the defendant itself or its agents

which has caused the injury to the plaintiff; whereas in malicious
prosecution, it is the act of the Court, although at the instance of the
defendant which has caused the injury complained of to the plaintiff.

¡  In other words, Whilst, in false imprisonment, the defendant exercises

direct restraint over the movements of the claimant, malicious
prosecution may be seen as indirect restraint by means of setting the
prosecution in motion.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  3. In false imprisonment, the personal liberty of the plaintiff is wrongfully
restrained by the private individual either personally or by setting a
ministerial officer in motion, while in malicious prosecution, the arrest is
secured under judicial sanction.

¡  4. In false imprisonment, the onus lies on the defendant to plead and

prove affirmatively the existence of reasonable and probable cause as
justification where in action for malicious prosecution, the plaintiff must
allege and prove affirmatively its non-existence.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  5. Malice is an essential ingredient in an action for making malicious
prosecution but in an action for false imprisonment, it is not.
¡  6. Damage is the gist of the action for malicious prosecution, in which it
has to be specially proved that the plaintiff has suffered in person,
reputation or pocket, but not so in an action of false imprisonment.
However, inconvenience and loss of reputation caused to the plaintiff and
the expenses incurred to regain freedom from false imprisonment may
be taken into consideration in awarding damages.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA


THANK YOU!

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA