NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

LAW OF TORTS – II

Trimester : II

Malicious Prosecution

Submitted To: Submitted By:

Prof. (Dr.) Rajiv Khare Ekansh Arora

2017BALLB01
 Acknowledgement

I would like to express my sincerest gratitude to our professor of Torts, Prof. (Dr.) Rajiv Khare,
for instilling in us the spirit of inquiry and curiosity, and the will to study not just this subject, but
all subjects, with the utmost care, meticulousness and the desire to learn.

I would also like to express my thanks to this marvellous university for giving me the
opportunity to make this project and take away valuable lessons after its completion. My
gratitude also goes to the library staff for providing the requisite books, internet resources and
time for making this project, and also to my friends and seniors for guiding me along the way.
Table of Contents

Contents
Acknowledgement ...........................................................................................2
Introduction ................................................................................................... 4
Landmark Cases .............................................................................................17
In the Kamta Prasad v. National Buildings Constructions Corporation Pvt Ltd, the officer of
the respondent corporation found certain articles missing while preparing inventory and
checking up with the stock register. The plaintiff was prosecuted under sec. 403 of the
I.P.C. but was given the benefit of doubt and hence acquitted. The plaintiff brought an
action for malicious prosecution. The plaintiff could not prove that he had been harassed
by the officers. There was held to be reasonable and probable case for prosecution of the
plaintiff and the4 fact that plaintiff was not harassed indicated that there was no malice
and hence the charge was not held. ..................................................................17
In Girija Prasad v. Uma Shankar Pathakthe plaintiff was a practicing advocate at Panna in
M.P. he was also a Jan Sangh leader and had started an agitation on the question of food
scarcity in the city and one Jan Sangh worker had gone to a hunger strike. On Jan 2 1965
Girija Singh a sub inspector was deputed outside the collectorate to control the crowd that
had collected there to support the agitation. Then there were some bullet shots made from
the revolver of the sub inspector. He stated that while he was grappling with some person
who was assaulting him the revolver got fired mistakenly. On that date Girija Singh had
lodged an FIR stating that he was assaulted by some person. His watch snatched and also
the plaintiff Uma Shankar Pathak was present at the scene and was instigating the crowd
against him. The case was investigated and the plaintiff was arrested on 15th January and
released on bail on 18th January. He was finally acquitted on June 30th, 1965. The plaintiff
then sued 4 persons for malicious prosecution, the sub inspector Girija Prasad who lodged
the F.I.R, the S.H.O. of that area who entertained the report and two others involved with
the case. ..................................................................................................18
It was found by the M.P. High court that the report prepared by Girija Prasad was false and
at that relevant time the plaintiff was not present there but was appearing in front of a
civil judge Justice Verma. Eventually Girija Prasad was held for malicious prosecution and
others acquitted of the charge and not held liable for malicious prosecution. ................18
Gangadhar Padhy v Prem Singh ........................................................................19
Case Analysis - Relevance of Malice ...................................................................22
Sita Ram v. BhimSen .....................................................................................22
Bharat Commerce and Industries v. SurendraNathShukla and Ors................................23
Bibliography .................................................................................................27
 Introduction
Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional,
invasion of a claimant’s interest in either his person, his land or his goods. Trespass was one of
medieval forms of action, the second being “trespass on the case” or simply “case” case covered
injury which was consequential to a wrong but the wrong was neither forcible nor direct. The
distinction can still be seen in the law of torts today; torts which are actionable per.se, such as
trespass to land and trespass to person originate from old forms of trespass, while those torts
which require prove of damage such as negligence and nuisance.
Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or
liquidation proceedings against another without reasonable or probable cause. This tort balances
competing principles, namely freedom that every person should have in bringing criminals to
justice and the need for restraining false accusations against innocent persons. Malicious
prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a
criminal charge. The foundation lies in the triangular abuse of the court process of the court by
wrongfully setting the law in motion and it is designed to encourage the perversion of the
machinery of justice for a proper cause the tort of malicious position provides redress for those
who are prosecuted without cause and with malice.
There are certain essential conditions that need to be fulfilled in order to prove the tort of
malicious prosecution. This can be explained with the help of an example. Suppose A
maliciously and without any reasonable cause, prosecuted B for theft. B was acquitted by the
court as an innocent person. Now B has a remedy against A. In a suit for damages for malicious
prosecution, the defendant must prove the following essentials

1) That he was prosecuted by the defendant.

 2) That the proceeding complained was terminated in favor of the present plaintiff.

3) That the prosecution was instituted against without any just or reasonable cause

4) That the prosecution was instituted with a malicious intention, that is, not with the mere
intention of getting the law into effect, but with an intention, which was wrongful in fact.

5) That he suffered damage to his reputation or to the safety of person, or to security of his
property.

1. Institution of proceedings

The proceedings complained of by the plaintiff must have been instituted by the defendant i.e. he
must be the person who put the law in motion against the plaintiff. The word ‘proceeding’ means
a proceeding in a court of law charging a person with a crime. It is not however necessary,
however, that he (the defendant) should be a party to the proceedings. Thus an action for
malicious abuse of legal process will lie against the solicitor who in his client’s name has set the
law in motion against the plaintiff.

When does prosecution commence?

The Prosecution is not deemed to have commenced before a person is summoned to answer a
complaint. In KhagendraNath v. Jacob Chandra 1 there was mere lodging of ‘ejahar’ alleging that
the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that
something should be done. The plaintiff was neither arrested nor prosecuted. It was held that
merely bringing the matter before the executive authority did not amount to prosecution and
therefore the action for malicious prosecution could not be maintained. There is no
commencement of the prosecution when a magistrate issues only a notice and not summons to

1KhagendraNath v. Jacob Chandra A.I.R. 1977 N.O.C. 207(Gau)

the accused on receiving a complaint of defamation and subsequently dismissed it after hearing
both the parties.2

The prosecution doesn’t begin when a complaint is made to the police authorities and the police
starts its proceeding, it starts when some judicial authority is set in motion as a consequence of
such complaint. If a charge is made to the police constable and he thereupon makes an arrest, the
party making the charge, if liable at all, will be liable in an action for false imprisonment, on the
ground that he has directed that arrest and it is therefore his own act and not the act of law. But if
he goes before a magistrate who thereupon issues his warrant, then his liability if any, is for
malicious prosecution.

What constitutes a prosecution? Who is a prosecutor?

To prosecute is to set the law in motion by an appeal to some person clothed with judicial
authority in regard to the matter in question, and to be liable for malicious prosecution a person
must be actively instrumental in so setting the law in motion.

In the Gaya Prasad v.Bhagat Singh3 the privy council pointed out that the conduct of the
complainant before and after the complaint has to be seen to decide whether he was the real
prosecutor or not. If the complainant knowing that the charge is false tries to mislead the police
by procuring false evidence for the conviction of the accused, he would be considered to be the
prosecutor.

It is for the plaintiff to prove that the defendant instituted the prosecution against him. It is
different from the act of giving information on the basis of an honest suspicion. 4 However if the
story told is false to the knowledge of the teller, and the prosecution is launched by the police, he
will be prosecuted.

2Legal Service India

3Gaya Prasad v Bhagat Singh I.L.R(1908) 30 AII.525(P.C.)
4RaghubarDayal v. KalluAllahabad (1940) AIR 213
 2. Termination of the proceedings in favor of the plaintiff

The plaintiff must prove that the prosecution was terminated in his favour. He has no right to sue
before it is terminated and while it is pending. It is a rule of law that no one shall be allowed to
allege of a still pending suit that it is unjust. The termination maybe an acquittal on the merits
and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-
prosecution. What the plaintiff requires for his action is not a judicial determination of his
innocence but merely the absence of any judicial determination of his guilt.

If however, the person has been convicted of a criminal charge then he can’t sue for malicious
prosecution even though we can prove he is an innocent man and that the accusations were
malicious and unfounded one. His only remedy in that case is to appeal against his 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.

The prosecution ends in plaintiff’s favour when he can show that:

• He was acquitted by court either on merit5 or technical grounds6.

• His conviction was quashed or set aside by the appellate court.7

• His prosecution was discontinued or withdrawn by the defendant.

3. He
either
1. was
on acquited
merit by quashed
the court
435
or
2. His
set
court conviction
aside byorthe
prosecution
discontinued
the defendant was
appellate
was
withdrawn by

5Berry v. B.T.C, (1962) 1 QB 305

6Wicks v. Fentham, (1791) 4 TR 247

7Herniman v. Smith, 1938 AC 305

 3. Want of reasonable and probable cause

Though the line of distinction between “reasonable” and “probable” is very fine, they have been
used interchangeably. Reasonable and probable cause has been defined by Hawkins J. in Hicks
v. Faulkner8 in these words: “an honest belief in the guilt of the accused based upon a full
conviction, founded on 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 that position of the accuser, to the conclusion that the person charged was probably guilty of
the crime imputed.”

Basically it means honest belief in the guilt of the accused based upon reasonable ground. No
action lies for the institution of legal proceedings, however malicious, unless they have been
instituted without such cause.Normally the burden of proof to prove want of reasonable and
probable cause by the defendant lies on the plaintiff. Further, if the defendant denies it, it is not
the practice to require him to give particulars of his denial.

Four points must be noted here:

i. An honest belief of the accuser in the guilt of the accused.

ii. Such belief must be based on an honest conviction of the existence of circumstances
which led the accuser to that conclusion.

iii. Such secondly mentioned belief as to the existence of the circumstances must be based
upon reasonable grounds that is such grounds , as would lead any fairly cautious man in
the defendant’s situation to believe so

iv. The circumstances so believed and relied on by the accuser must be such as amount to a
reasonable ground for belief in the guilt of the accused.

The fact that the plaintiff has been acquitted is not prima facie evidence that the charge was
unreasonable and false. Lack of reasonable and probable cause is to be understood objectively, it

8Hicks v. Faulkner, (1878) 8 QB 167

does not connote the subjective attitude of the accuser. The fact that the accuser himself thinks
that it is reasonable to prosecute does not per se lead to the conclusion that he had a reasonable
and probable cause for the prosecution.

In the case Girija Prasad Shankar v. Umanshankar Pathak9, the plaintiff Umashankar was an
advocate and also a Jan Sangh leader. Jan Sangh started an agitation due to food security in
Panna district. Girija Prasad, a sub inspector, was deputed to control the crowd. Girija Prasad
stated while he was being assaulted, his revolver got fired. The same day he lodged an FIR that
he was assaulted, his wristwatch was snatched and that Umashankar was present at the scene and
was instigating the crowd. The court found that the complaint was false and at that time
Umashankar was not there but in a case before the civil judge.

Girija Prasad was, therefore, acting without reasonable cause and trying to use the machinery for
an improper purpose of falsely implicating the plaintiff. He was held liable for malicious
prosecution.

Reasonable and probable cause means that there are sufficient grounds for thinking that the
accused was probably guilty but not that the prosecutor necessarily believes in the probability of
conviction; he is only concerned with the question whether there is a case fir to be tried. Ifthe
defendant can be shown to have initiated the prosecution without himself holding an honest
belief in the truth of the charge, he cannot be said to have acted upon reasonable and probable
cause. Further, mere belief in the truth of the charge is not sufficient if the circumstances before
the defendant would not have led “an ordinary prudent and cautious man” to conclude that the
person charged was probably guilty of the offence.

With regards to an investigating officer who files charge sheet, reasonable and probable cause
means whether the investigation showed existence of facts from which it could be said that there
was a case proper to be laid before the court.

9GirijaPrasad Shankar v. Umanshankar Pathak, AIR (1975) MP 79

The term 'reasonable' shows that the causes must conform to the standards of a reasonable and
prudent man and the term 'probable' shows that the causes may result in the proof of the guilt.
Therefore, a reasonable and probable cause can only mean that the grounds for the plaintiff’s
guilt are reasonable according to a reasonable and prudent man and that there are materials
which might result in the conviction of the accused
 4. Malice

Malice means “indirect and improper motive” as defined in Jogendra v. Lingraj10. The
proceedings complained off by the plaintiff must be initiated in a malicious spirit that is from an
indirect or improper motive and not in furtherance of justice.11Spite and ill will are sufficient but
not necessary conditions of malice. It is to be established from interference in the circumstances
and cannot be proved by direct evidence. The lack of objective and reasonable cause is not an
evidence of malice but lack of honest belief is an evidence of malice. In fact the gist of the action
of malicious prosecution is malice.

In Allen v. Flood 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 an unlawful act doesn’t become
lawful because of the good motives of the actor. Burden of proof to prove malice in the
defendant’s action lies on the plaintiff. Therefore it is necessary to distinguish between honesty
of belief and honesty of motive; the former is relevant to the question of reasonable and probable
cause, the latter to the question of malice.

In Abdul Majid v. HarvanshChoubey12, the station officer conspired with two other defendants
concocted a story that the plaintiff was involved in a dacoit and the ‘hansuli’ used in dacoit was
recovered from plaintiff’s house. The court acquitted the plaintiff on the benefit of doubt. The
plaintiff brought an action against the defendant. The court found that the defendants were
actuated by improper and wrongful motive to prosecute the plaintiff on concocted story. The
court held that the defendants were liable

Thus it may be stated that any motive other than that of simply instituting a prosecution for the
purpose of bringing a person to justice is a malicious motive on the part of the person who acts in
that way13 . It may be added that it is not necessary that there should be malice at the time of

10Jogendra v. Lingraj, AIR (1970) ORI 91

11Abrath v. N.E Rly. Co., (1886) 11 App Cas 247
12 Abdul Majid v. HarvanshChoubey, AIR 1974 AII 129
13 M.L AhirGayawal v. Sahai P. Dhami, (1990) ILR 27 Cal 532
launching the prosecution. Even at the subsequent stage if the prosecution become malicious, he
may be liable for malicious prosecution.

Clarke and Lindsell have rightly said in their book on Law of Tort, 11th Edition. Article 1444 at
page 870:

"The term 'malice in this form of action is not to be considered in the sense of spite or hatred
against an individual, but of malice animus and as denoting that the party is actuated by an
improper motive. The proper motive for prosecution is of course a desire to secure an end to
justice."

ProfessorWinfield has also made similar observations in his book on the Law of Torts (3rd
Edition) at page 604:

"Judicial attempts to define malice have not been completely successful. 'Some other motive than
a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty", seems
to overlook the fact that motives are often mixed. Moreover anger is not malice; indeed, it is one
of the motives on which the law relies in order to secure the prosecution of criminals, and yet
anger is much more akin to revenge than to any desire to uphold the law, perhaps we are nearer
the mark if we suggest that malice exists unless the pre-dominant wish of the accuser is to
vindicate law."
Evidence of malice

Malice may be proved either by showing what the motive was and that it was wrong, or by
showing that the circumstances were such that the prosecution can only be accounted for by
imputing some wrong or indirect motive to the prosecutor: for example, prosecuting a person for
theft in order to deter others from committing similar depredations. But a prosecution isn’t
merely malicious because it was inspired by anger; and however wrong-headed a prosecutor
maybe, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be
initiator of a malicious prosecution.14

When there is absence of some reasonable cause owing to defendant’s want of belief in the truth
of his charge is the conclusive evidence of malice. However the converse proposition is not true
because a person may be inspired by malice and also has a reasonable belief in the truth of his
case. There may be malice either in commencing a prosecution or continuing one, honestly
began. If when he instituted criminal proceedings the prosecutor knew he had no reasonable
grounds for the step he was taking, the definition of malice given by BAYLEY, J., In Bromage v.
Prosser15, viz., ‘a wrongful act, done intentionally, without just cause or excuse’, would
distinctly apply and no further proof of malice would be required; but if he really believed he had
such reasonable cause, although in fact he had it not, and was actuated not by such belief alone,
but also by personal spite or a desire to bring about the imprisonment of, or other harm to the
accused, or to accomplish some other sinister object of his own, that personal enmity or sinister
motive would be quite sufficient to establish the malice required by law to complete a cause of
action.16

14BrajSundar Deb v. Bamder Das, AIR 1944 PC 1=47 Bom LR 566 (PC)
15Bromage v. Prosser, (1825) 4 B&C 247 (255)
16Sutton v. Johnstone, (1786) 1 TR 493 (544)
The malice necessary to be established isn’t malice in law such as maybe assumed from a
wrongful act, done intentionally, without any just cause or excuse but malice in fact malus
animus- indicating that the party was actuated either by spite or ill will towards an individual or
by indirect or improper motives. 17


17Hicks v. Faulkner, (1878) 8 QBD 167 (175); BhimSen v. Sita Ram, (1902) ILR 24 All 363
 5. Damage

It has to be proved that the plaintiff suffered damages as a result of such proceedings even
though they were terminated in his favour. The damages may not necessarily be pecuniary.
According to Holt C.J.’s classic analysis in Savile v. Robert18there could be three sorts of
damages any one of which could be sufficient to support any action of malicious prosecution.

i. The damage to a man’s fame as where the matter whereof he is accused is scandalous.

ii. The damage done to a person as where man is put to a danger of losing his life, limb or
property.

iii. The damage done to a person as where man is put to a danger of losing his life, limb or
liberty.

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

i. The nature of the offence the plaintiff was charged of

ii. The inconvenience to which the plaintiff was charged to

iii. Monetary loss and

iv. The status and prosecution of the person prosecuted

In Sova Rani Dutta v Debabrata Dutta19the defendant logged a false FIR against the plaintiff and
his sister alleging theft of her ear rings. The defendant knew that the complaint was false and that
the police would handcuff the plaintiff. The defendant was held liable for malicious prosecution
and the humiliation suffered by the plaintiff due to handcuffing.

18Savile v. Robert, (1899) 1 Raym 374

19Sova Rani Dutta v.DebabrataDutta, AIR 1991 Cal 185
 Landmark Cases

In the Kamta Prasad v. National Buildings Constructions Corporation Pvt Ltd20, the officer of
the respondent corporation found certain articles missing while preparing inventory and checking
up with the stock register. The plaintiff was prosecuted under sec. 403 of the I.P.C. but was given
the benefit of doubt and hence acquitted. The plaintiff brought an action for malicious
prosecution. The plaintiff could not prove that he had been harassed by the officers. There was
held to be reasonable and probable case for prosecution of the plaintiff and the4 fact that plaintiff
was not harassed indicated that there was no malice and hence the charge was not held.

20Kamta Prasad v. National Buildings Constructions Corporation Pvt Ltd, AIR 1992 Delhi 275
In Girija Prasad v. Uma Shankar Pathak 21the plaintiff was a practicing advocate at Panna in
M.P. he was also a Jan Sangh leader and had started an agitation on the question of food scarcity
in the city and one Jan Sangh worker had gone to a hunger strike. On Jan 2 1965 Girija Singh a
sub inspector was deputed outside the collectorate to control the crowd that had collected there to
support the agitation. Then there were some bullet shots made from the revolver of the sub
inspector. He stated that while he was grappling with some person who was assaulting him the
revolver got fired mistakenly. On that date Girija Singh had lodged an FIR stating that he was
assaulted by some person. His watch snatched and also the plaintiff Uma Shankar Pathak was
present at the scene and was instigating the crowd against him. The case was investigated and the
plaintiff was arrested on 15th January and released on bail on 18th January. He was finally
acquitted on June 30th, 1965. The plaintiff then sued 4 persons for malicious prosecution, the sub
inspector Girija Prasad who lodged the F.I.R, the S.H.O. of that area who entertained the report
and two others involved with the case.

It was found by the M.P. High court that the report prepared by Girija Prasad was false and at
that relevant time the plaintiff was not present there but was appearing in front of a civil judge
Justice Verma. Eventually Girija Prasad was held for malicious prosecution and others acquitted
of the charge and not held liable for malicious prosecution.

21Girija Prasad v. Uma Shankar Pathak, AIR 1973 M.P 79

Gangadhar Padhy v Prem Singh

Facts

The plaintiff was introduced to the defendant’s daughter by an acquaintance of the defendant.
The two developed intimacy which converted into a love affair. Fearing that the two may get
married, the defendant got a false complaint made in the name of his daughter to the Police
Station against the plaintiff alleging that the plaintiff had written unsigned and signed letters to
his daughter threatening her and also linking the plaintiff with a notorious terrorist and gangster.
On the said complaint, the plaintiff was arrested. The appellant was forced to face trauma of trial
in a Criminal Court in the company of hardcore criminals and which trial went on for ten long
years. The cause of action accrued to the plaintiff on 23rd September, 1999 when false First
Information Report (FIR) No. 88/99 was registered against the plaintiff and on 9th September,
2009, the appellant was acquitted. Accordingly, a claim for Rs. 5 lakhs was made.

The learned ADJ, after framing issues and recording evidence dismissed the suit, holding:

• That the daughter of the respondent appeared as a witness and denied any relationship
with the appellant and supported the complaint by her father.

• That the appellant had been acquitted in the prosecution giving benefit of doubt to him.

• That the appellant had failed to prove the complaint against him, was malicious or
initiated without reasonable or probable cause.

• Relying on the judgment of the Division Bench of the Court in Radhey Mohan Singh v
Kaushalya Devi laying down that there are a variety of reasons for which an accused is
given benefit of doubt and this by itself cannot lead to a conclusion that the complaint
was based on extraneous consideration leading to entitlement of damages, it was held that
else the appellant had been unable to base his claim for damages on the ground of
malicious prosecution as he had merely been acquitted for want of any definite
conclusion arrived at by the Court in which the appellant was prosecuted.

This is an appeal by the defendant in the High Court of Delhi.

Holding

The appellant urged the impugned judgment to be wrong inter alia on the ground that the
appellant having been prosecuted at the instance of the respondent and having been acquitted, it
is obvious that the prosecution of the appellant was false and damage to the appellant from such
prosecution for ten years is implicit/inherent. The Court held that acquittal giving benefit of
doubt per se is not a cause for claiming damages for malicious prosecution. The whole premise
of the case of the appellant before the Trial Court as well as before the High Court was, that
merely on account of his acquittal, he is entitled to damages against the respondent and which as
aforesaid, is not the position in law. It was held, that to be successful in a suit for mailicious
prosecution, it is imperative for the plaintiff to show that the proceedings had been instituted
against him by the defendant ‘without probable cause’ and from ‘malicious motives’ i.e. for
indirect and improper motive. The onus lies heavily upon the plaintiff. It was yet further held that
in a suit for malicious prosecution, the important question is whether the facts as known to the
defendant or reasonably believed by him at the material time, constituted a reasonable cause for
the prosecution. The Court quoted with approval Ramaswamy Iyer’s Law of Torts opining, that
to show that there was no reasonable and probable cause, it has to be shown that the defendant
did not believe in the plaintiff’s guilt. It was further observed that police is an impartial agency
constituted by the State, on their being satisfied by their enquiries that the case is truthful and
merits prosecution; therefore, if such an agency prosecuted the offender, it would certainly be a
factor in favour of the complainant having reasonable and probable cause. The Court also held
that the concept of malice is to be kept distinct from the concept of lack of reasonable and
probable cause; malice denotes spite or hatred against an individual and prosecution can be held
to be malicious only if it is found to be vindictive, initiated to malign the plaintiff before the
public or guided by purely personal consideration. It was reiterated that if there is an honest
belief that the accusation is true, then even though the belief is mistaken, the charge may still be
reasonable and probable.

Applying the aforesaid principles, the Court failed to find any merit whatsoever in the case of the
appellant and held that the learned ADJ was correct in concluding that the appellant utterly failed
to prove his prosecution, though at the instance of the respondent, to be malicious. The Court
held that the appellant failed to prove the necessary ingrediants for malicious prosecution.
Case Analysis - Relevance of Malice

Sita Ram v. BhimSen 22

Facts

The defendant BhimSen lodged a complaint against the plaintiff, Sita Ram, of an offence
under Section 215 of the Indian Penal Code, in the Court of the Magistrate of Bulandshahr, the
charge being that the plaintiff stole cattle, and then restored the cattle to the owners on receipt of
rewards. In his plaint the plaintiff alleges that there was enmity between him and the defendant
arising out of a dispute about a plot of land which was formerly under the cultivation of the
father of the defendant, and was then in the possession of the plaintiff and his brothers, and that
the false complaint was lodged against him in consequence of this enmity, that the charge was
malicious and made without reasonable or probable cause.

In the Court of first instance (the Munsif) found that the defendant did not institute the
prosecution of the plaintiff maliciously. On appeal the Additional Subordinate Judge reversed the
finding of the lower Court, holding upon the evidence that the defendant did prosecute the
plaintiff, and that he did so maliciously" and without reasonable or probable cause.

Issues involved

This is an appeal by the defendant from an order of the Additional Subordinate Judge of Aligarh,
reversing the decision of the Munsif upon certain questions of fact, and remanding the case for
the trial of the remaining issue in the case under Section 562 of the Code of Civil Procedure, the
suit was brought to recover damages for alleged malicious prosecution.

Legal principle explained

The mere absence of reasonable and probable cause does not of itself justify the conclusion, as a
matter of law, that an act is malicious. It is not identical with malice; but malice maj', having
regard to the circumstances of the case, be inferred from it. Whether malice should be inferred

22Sita Ram v. BhimSen, (1902) ILR 24 All 363

from the want of reasonable and probable cause or not, is a question which depends upon the
circumstances of each case.

Decision

We accordingly affirm the judgment of the lower appellate Court on the merits with costs;and
proceed to try the issue as to the quantum of damages to which the plaintiff is entitled and give a
decree accordingly.

Bharat Commerce and Industries v. SurendraNathShukla and Ors23

Facts

The plaintiff-respondent SurendraNathShukla was appointed as a Clearing Clerk on a salary of

Rs. 125 per month by Bharat Airways Ltd., having its registered office at Calcutta sometime in
1948. In or about 10th January, 1950 the name of the said Bharat Airways Ltd. has been changed
to M/s. Bharat Commerce and Industries Ltd. (the appellant), but the registered office of the
appellant retained the same address. The said Surendra Nath Shukla was first posted at the Head
Office of Bharat Airways Ltd. at No. 4, Chittaranjan Avenue, Calcutta and was thereafter
transferred to its Dum Dum Office in 1949.

Bharat Airways Ltd. used to indent and purchase various airplane parts and other accessories
connected with airplanes from foreign countries, At the material time, i.e. in 1951 and 1952 the
said Surendra Nath Shukla was working in the clearing Department of the office of Bharat
Airways Ltd. and his duty was, inter alia, to clear the consignments of the said goods on payment
of heights, custom charges, etc. and to deliver the same after such clearance to the Stores
Department of Bharat Airways Ltd. In pursuance of the said duty Mr. Shukla used to clear the
consignments of Bharat Airways Ltd., with the money advanced to him from time to time by the
latter. According to Mr. Shukla, there were occasions when he had to meet the expenses by
advancing money himself for the aforesaid purposes subject to future adjustment with Bharat

23Bharat Commerce and Industries v. SurendraNathShukla and Ors., AIR 1966 Cal 388
Airways Ltd. On September 24, 1952 Mr. Shukla admitted in writing after adjustment of
accounts upto 31st July, 1952 that a sum of Rs. 4,762-14 is payable by him to Bharat Airways
Ltd.

On 22nd December, 1952 he applied for leave on the ground that he was suffering from cold and
fever. On 26th December, 1952 be wrote a letter demanding his salary for the month of
November, 1952 and threatened that he would take recourse to legal proceeding unless his salary
was remitted within three days. On the same date, that is, 26th December, 1952 he wrote a letter
stating that a sum of Rupees 28,857 was due to him as he paid the same out of his own pocket for
clearing goods of Bharat Airways Ltd. On 27th December, 1952 he again applied for leave for a
month from 29-12-52 to 29-1-53 and informed the company that he would intimate his address if
it would go out for a change.

On 31st December, 1952 Bharat Airways Ltd. filed a petition to the Deputy Commissioner of
Police, Detective Department alleging that Mr. Shukla committed offence of criminal breach of
trust and cheating in respect of a sum of Rs. 4,881/18/3p under Section 408 and also
under Section 420 of the Indian Penal Code respectively. On the same day the company post-ad a
registered letter stating that it could not sanction leave as no medical certificate was sent. The
company, however, withdrew the letter from the post office on the same date.

On 2nd January, 1953 the company replied to the plaintiff's letter dated 26th December, 1952
denying that any money was due from the company to Mr. Shukla. On the same date the
appellant dispensed with the services of Mr. Shukla from the date of his absence, i.e. 22-12-52,
on the ground that he has committed breach of trust and cheating in respect of Rs. 4,381/13/3p.
On 29th January, 1953 Mr. Shukla made another application for leave and towards the end of
February, 1953, according to Mr. Shnkla, he received the said letter of dismissal dated 2-1-53
when he was at Benares. On 26th February, 1953 Shri Shukla appeared before the Calcutta
Police Court for obtaining bail.

In the criminal case No. G. R. 716 of 1953 (State v. S. N. Shukla) the plaintiff was acquitted of
the charge under Section 408 but convicted under Section 420. On 29th March, 1954 a Division
Bench of the Calcutta High Court acquitted the plaintiff of the charge against him under Section
420. On 4th May, 1954 the plaintiff wrote to Indian Airlines Corporation to reinstate him in
service but he got no response from the said Corporation. On 6th February, 1956 the plaintiff
instituted Suit No. 366 of 1957 (SurendraNathShukla v. Indian Airlines Corporation and Anr.) in
this Court challenging the order of dismissal. On 14th May, 1956 he filed the present suit for
malicious prosecution. On 23rd March, 1961 Mr. Shukla's First suit for wrongful dismissal was
dismissed with costs by Datta, J. The present appeal was filed on 15th February, 1962 against the
judgment and decree of Datta, J. dated 20th April, 1961.

Issues involved

This is an appeal against the judgment and decree of Datta, J., delivered on 20th April, 1961
whereby he has granted a decree for Rs. 14,685 with interest at the rate of 6 per cent against the
appellant in a suit for malicious prosecution.

We should, therefore, try to find out whether the appellant commenced the prosecution without
any honest belief of the plaintiff's guilt and whether it failed or neglected to take reasonable care
to inform itself of the true facts before commencing or proceeding with the prosecution.

Legal principle explained

In the past, "malice" was identified with "lack of reasonable and probable cause" and often
malice was inferred from lack of reasonable and probable cause and vice versa. But the present
state of law seems to be that the concept of malice is to be kept distinct from the concept of lack
of reasonable and probable cause. Ordinarily, malice denotes spite or hatred against an individual
but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the
devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be
determined by any subjective standard.

Decision

Therefore, to conclude that in view of the findings, namely, the defendant had reasonable and
probable cause in commencing the criminal proceeding and there was no malice in such
prosecution.
 Conclusion
Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in
motion on a criminal charge. It is a common law intentional tort. In order to succeed the plaintiff
must prove that there was a prosecution without any just and reasonable cause, initiated by
malice and the case was decided in the plaintiff’s favour. It is necessary to prove that damages
were incurred by the plaintiff as a result of the prosecution. The burden of proof rests on him. He
has to prove the existence of malice.

Criminal prosecuting attorneys and judges are protected from tort liability for malicious
prosecution by doctrines of prosecutorial immunity and judicial immunity. Moreover, the mere
filing of a complaint cannot constitute an abuse of process. The parties, who have abused or
misused the process, have gone beyond merely filing a lawsuit. The taking of an appeal, even a
frivolous one, is not enough to constitute an abuse of process. The mere filing or maintenance of
a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.

Thus there is enough procedural law and firmly laid down principles that protect and individual
from malicious prosecution as well as the fear of filing complaint thinking they would be
charged of malicious prosecution.

Malice may be proved by previously stained relations, unreasonable and improper conduct like
advertising the charge or getting up false evidence. Though mere carelessness is not the per se
proof of malice, unreasonable conduct like haste, recklessness or failure to make enquiries would
be some evidence.
 Bibliography

Books

1. The Law of Torts, Ratanlal and Dhirajlal, 23rd edition 1997

2. Law of Torts- II Module edited and compiled by Prof. (Dr.) Rajiv Khare

Websites

• www.indlaw.com

• www.manupatra.com

• www.indiankanoon.org

• www.legalserviceindia.com