ASSIGNMENT ON COMPARATIVE CRIMINAL LAW

“Malicious Prosecution- A comparative analysis of the position in England and India”

SUBMITTED TO:
(MS. SEEMA SHARMA)

(ASSISTANT PROFESSOR)

(FACULTY OF “COMPARATIVE CRIMINAL LAW”)

SUBMITTED BY:

HIMANSHU KUMAR
ROLL NO.-16FLICDDN01030
BATCH (2016-2021)

DATE OF SUBMISSION: 09TH MAY, 2020

THE ICFAI LAW SCHOOL,

ICFAI UNIVERSITY, DEHRADUN

ACKNOWLEDGEMENTS

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I would specially like to thank my guide, mentor, Mrs. Sheema Sharma without whose
constant support and guidance this project would have been a distant reality. This work is an
outcome of an unparalleled infrastructural support that I have received from ICFAI Law
School, ICFAI University, Dehradun. I owe my deepest gratitude to the library staff of the
college.
It would never have been possible to complete this study without an untiring support from my
family, specially my parents. This study bears testimony to the active encouragement and
guidance of a host of friends and well-wishers.

Name: Himasnhu Kumar

Roll no – 16FLICDDN01030

Batch-2016-2021

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Introduction:

With the continuous evolution of various legal systems across the globe, the noxious and
malicious elements have also materialized themselves strongly and have continued. Their aim
of launching attacks to weaken the legal machinery, by embarking upon them. The tort of
malicious prosecution is one such development which has spread its roots into the legal
systems and has at times made it look like it is not the legal system which is good enough to
deal with issues of such magnitude. Even though the adversarial procedure of the court
hearing demands that facts be produced along with justification which in the legal sense
would be deemed as enough for supporting the cause. Even if after scrutiny of such facts the
bench or the magistrate dismisses the claim, measurable damage has already been done.

As it is an established fact that society punishes an individual more than the law, it is
more evidently seen in issues of this nature where the victim of such suit (defendant in
original suit) faces stigmatization in every sphere. Though over the years the courts of UK
have come up with remedies and various provisions, courts in India are still busy dealing with
a backlog of such cases, because of which any concrete, as well as an effective way, has
failed to materialise itself in the legal system.

What do you mean by the term” Malicious 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 wilful, wanton

or reckless or against the prosecutor’s sense of duty and right.”

Concept of Malicious Prosecution:

Settling tools or as to bring someone down to the negotiation table to obtain pecuniary
benefits. The prominent and most common of all the remedies for such a victim are cross
suits claiming damages for initiation of a malicious suit. Such suits have become prominent
and to name a few can be seen in the recognition of the tort of malicious prosecution has been
done to act as a safeguard for individuals, dealings with such claims which are known to the
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complainant as false and are mostly based on wrongful motive. Such suits have commonly
come into play and are mostly seen as score cases of medical malpractice, suits under
criminal offences, punishment for which is penal in nature and a few suits under various other
acts.

A defendant (plaintiff in the original suit) must prove reasonability in filing such suits
and, must provide such facts which would have led any person in his place acting rationally
to come to the same conclusion as he came upon when he filed the suit. A person while
bringing forward a suit claiming damages for suit filed maliciously must prove that he was
acquitted by a competent court and the filing of such suit was done by the original plaintiff
(defendant in this case) without any reasonable and probable cause.

While the question of probable cause arises, a defendant cannot claim that he initiated
prosecution under the order of a competent body which itself was moved by the intel
provided by such individual, for the cause of justice would be defeated and any person
claiming so could evade the law and simply walk away.  However, a person acting upon the
information provided to him by any competitive person, if acts on such advice and files a suit,
he would not be held liable for, the element of malice was absent and anyone in his shoes
would have acted similarly upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, would not be a good
cause of action as suspicion and claim must be differentiated the former being based on facts
which would have led any person to believe in possibility and not outright presence
of guilt. Determination of the fact, who the prosecutor is, essential while bringing a cross suit
claiming damages for such prosecution. A prosecutor is that person who set the law in
motion, it can be an ordinary person, an individual associated with the administration or for
instance police, or even a magistrate but, the rationale isn’t who proceeded but who was it
that instigated or initiated the claim. A judicial authority can only be said to be a prosecutor
when it can be proved without any doubt that he had knowledge that the claims were false or
he had an element of disbelief in relation to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts
which he had reason to believe are not substantially true and based on those facts the
magistrate ordered a probe and the defendant in that suit was prosecuted. A point must be
clearly understood that the mere filing of a complaint viciously would not usually amount to

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the tort of malicious prosecution if, the magistrate dismisses the complaint as disclosing that
to be no offence, this wouldn’t be a prosecution but a failed attempt to set the criminal law
into motion.

As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a
prosecution when the Magistrate takes cognizance of the complaint which then is followed by
an examination of such complaint by means of inquiry in open court under sec 202 of
CrPC the prosecution is deemed to have commenced. Various courts across the globe have
had their views of what can be called as a prosecution which has not been solved but further
added up to the pre-existing ambiguities regarding the same.

The Bombay High Court in Ahmed bhai V. Framji observed the commencement of

prosecution shall be deemed to have begun not when the magistrate takes cognizance and acts
as per the provisions but, when he is approached, and a complaint has been made maliciously
with a view of such a complaint being entertained by such magistrate. However, a
prosecution cannot be said to have been initiated unless there have been processes issued by
the magistrate with respect to such a complaint, which too has been affirmed by the Calcutta
and the Madras High Court.

For a successful claim for damages of malicious prosecution, it has been held by the courts
that the original prosecution must have been for an offence which is criminal in nature and
which is punishable by imprisonment and fine or both. This has been a drawback of the legal
system of India, which has failed to acknowledge the fact that multiple times there is enough
damage caused to the individual’s repute even though the prosecution is for a civil wrong, but
the courts in India have ruled out that possibility in various instances. This development has
been seen in England that irrespective of the nature of the complaint, whether it is one of
criminal or civil nature, a suit for malicious prosecution will be maintainable.

However, for a suit which is demanding damages for malicious prosecution for a civil
complaint, the plaintiff would have to show special damages which were incurred by him in
maintenance of such suit against him. This has again been held in a recent English case that it
would not be just a limitation of law for not being able to maintain such suits claiming
damages for a suit filed maliciously under any civil act, but it would be severely unjust on
behalf of the victim of such suit.

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Time and again the needs have been voiced for the recognition of claims for a suit filed
maliciously under civil laws but, neither the judiciary nor the law-making body has taken
steps to address such problems being faced by the public at large. England has been updating
its laws as per the time demands but, the laws in India are nowhere near what could be called
a competent law to deal with such claim.

What are the essentials required to constitute Malicious Prosecution?

In an action for malicious prosecution, the plaintiff has to prove that –

1. He was prosecuted by the defendant.

2. The defendant acted without reasonable and probable cause.
3. The defendant was actuated with malice
4. He (the plaintiff) was acquitted
5. He (the plaintiff) suffered damage.

 Prosecution– The plaintiff has to prove that the defendant instituted a false
criminal proceeding against him before a judicial, quasi-judicial authority or a
tribunal.
 Without reasonable and probable cause– The plaintiff has to prove that the
defendant prosecuted him without reasonable and probable cause.
 Malice– The plaintiff has to prove that there was malicious intent on the part of
the defendant in instituting criminal proceedings against him.
 Acquittal or Termination of criminal proceedings– The plaintiff has to prove
that the criminal proceedings against him were terminated and he was acquitted.
An action for malicious prosecution cannot be maintained if the plaintiff is
convicted.
 Damage– The plaintiff has to prove that he suffered loss or damage or injury as a
consequence of the prosecution complained of (by the defendant). The damage
may be with reference to the plaintiff’s person or property or reputation.

Illustration- A makes a false complaint against B, alleging that B had committed theft with a
view to compel B to deliver some property to him. Here A is liable for Malicious
Prosecution.

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How Malicious Prosecution can be distinguished from False Imprisonment?

False Imprisonment                                  

It imposes total restraint upon the personal liberty of a person. It is procured by a private
individual or by an authorised official by asserting legal authority and is prima facie, a tort.
There need not be any proof or malice on the part of the defendant.

Malicious Prosecution

It does not impose total restraint upon a person. It is procured by judgment or judicial order.

It is not a tort by itself. Further, in the case of Malicious Prosecution, the plaintiff has to
prove malice on the part of the defendant which is not a case in false imprisonment.

Position in England

Until recently, defendants who were successful in defending a malicious claim, the nature of
which was civil, did not have any redress. The rationale reiterated by the bench while passing
the judgements used to be that the successful defence of a claim merely should not give
someone a cause of action for claiming damages for that suit being malicious in nature and
filed without any reasonable belief, just to make the defendant undergo ordeals. A person
usually has remedies if the suit filed was criminal in nature as such a suit had potential to
cause calculable and graver damages to someone’s goodwill and lower his image in the eyes
of such members of the society who considered such individual a person of good virtue. This
is not something new, rather it has been done on numerous occasions when the ambit of the
tort was widened, one such instance is a suit filed under the Companies Act 1862 which
shall be further reviewed for a better understandin
g of how the tort evolved in England.

In, The Quartz Hill Consolidated and Gold Mining Company, the facts were that the
defendant, a shareholder in the plaintiff company and approached a broker to sell the shares
owned by him for which the deed was duly signed by him and handed over to the said
brokers. The shares could not be sold for some reasons and the defendant was informed of the
same, however, the papers of transfer were not returned to him. Based on this fact he filed a

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suit after waiting for around 10 days for winding up the company and cited reasons of
incompetence. The defendant was an owner of 100 shares of the firm each of whose value
was 1 pound, but the valuation at the time of the sale of the shares fell to approximately 1/3
of I t. The defendant claimed in the London Gazette that the company was offering properties
in Colorado, United States of America for much more than their actual valuation in order to
benefit from it and gain a promotion in the market. It was also alleged that their prospectus
falsely claimed that the mining ventures they were putting up for sale was too valuable and
would be a good investment for someone.

Later, the person was informed that the shares had been sold and hence he ceased to be a
shareholder in that company to which he responded by sending a notice to the court
requesting the dismissal of the suit filed by him which was eventually dismissed by the courts
at no extra cost. This had an adverse effect on the business of the company and it hit a further
low of 30% as the article published by the defendant brought disrepute to the firm and also, it
went on to lose the trust of the investors owing to such articles defaming the company.
Hence, they brought a suit against the defendants for wrongfully and maliciously filing a
claim under the companies act which resulted in loss of business.

This being a suit of civil nature the remedies were limited, and the court held at first that no
damages could be awarded and negated the claim keeping these parameters in mind firstly,
there was no evidence which could show special damages secondly, there was no evidence of
malice on the part of the prosecutor and thirdly, no action of this kind could possibly lie
under any such circumstances. However, a suit would probably lie under a claim alleging a
claim which was brought forward wrongfully but the above-mentioned parameters were not
one of those. It was proved beyond doubt that there was some mismanagement in the affairs
of the company and these circumstances are grounds which are enough as to the situation in
which the defendant was as he bona fide brought forward this claim and not under any ill
will.

It might be argued that mistake of fact is not an excuse under such a claim, but it can also be
argued that there was an absence of an intention to injure the plaintiff company which for a
suit of such nature to succeed is a prime requisite. Under this when a suit is dismissed a judge
might award a company nominal damages as per the act. This claim resembled the want of
adjudication under The Bankruptcy Act 1869 and as it was an analogous claim to one under

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the bankruptcy act, it would be maintainable. Any person who wrongfully sets either criminal
or civil law in motion viciously shall be deemed as liable.

The court said it was vexatious for someone to bring a suit against someone just because the
company had failed in the objective for which it was originally formed. The bench citing
various other reasons dismissed the suit as not good enough to be granted any damages for
maliciously filing a suit for winding up the company. Although the court held the defendant
liable for bringing a suit on unreasonable grounds which injured the credit of the company
the bench in unanimity rejected a claim to award special damages to the firm as they could
not after thorough inspection not conclude that liability to pay any extra cost could be a
ground for legal damage

Position in India:

There are provisions in India for dealing with malicious proceedings of only criminal suits
and a claimant usually has no remedies if such proceedings were instituted under any civil
law other than any Municipality Act. As has been seen in England cases of such a nature are
given a greater degree of importance, the backlog of cases and other drawbacks such as ways
those are not only illegitimate but also draw a calculable degree of mockery on the legal
system itself. Such cases drag for years and sometimes decades and the ordeal of the claimant
turns out to become graver as time passes and he/she is left without a remedy but, must bear
the expenses in maintenance of suit.

The English legal system has been flexible enough as per the changing times but the
conservative approach of Indian lawmakers hasn’t really worked out for the public good as
there are still no remedies for such civil claims which defame the person and one can only
claim for damages when he/she can show such damages which in the eyes of the court would
be called as special damage which should be causa causans of the complained act. The
rationale of prosecution is a bit different than that in England, it is deemed to be a prosecution
when it has reached a stage where calculable damage has been caused to the party defending
that suit. For a detailed insight into the concept, we reviewed a judgement by the Calcutta
High court which later went on to be cited while deciding many other cases.

In Mohamed Amin V. Jogendra Kumar Banerjee and others agreement was entered upon
by the appellant and the first respondent for sale of a few commodities to a company which

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was to be formed by the first respondent. In the process, the first respondent incorporated a
second respondent for carrying out the purchase and half of the agreed goods were transferred
by the appellant. Later it was discovered that the respondent had breached the terms of the
agreement which was entered upon, as a result of which the appellant refused to honour it and
did not transfer the remaining goods. As a result of which the second respondent acting in his
personal capacity and on behalf of the other respondent filed a suit under section
405, 420, and 422 of the Indian Penal Code and demanded that he be answerable to such
charges. The magistrate held an inquiry in an open court attended by the appellant and
dismissed the claim stating there is no cheating committed in this case and breach which
exists is of purely civil nature.

The appellant brought forward a suit for malicious institution of criminal proceedings against
him, to which the judge affirmed but observed the bench must stick to an earlier judgement
by The High Court of Judicature of Calcutta in Golap Jann V. Bholanath khettry where it
was observed that it cannot be deemed as prosecution if there is no issue of any processes or
where the complaint was dismissed by the magistrate upon inspection of the complaint, citing
the above precedent the claim of the appellant was dismissed which the bench observed to be
rightly decided.

How can India deal with malicious suits?

As it has been observed in England, how voids were filled in the landmark case of Willers V.
Joyce, similar steps can be taken in India as well. The judges have the independence of
evolving new laws or filling voids in between the existing laws which might turn obsolete as
time passes. Law is a living entity and like all other living entities, it cannot remain the same
and must go through a state of transition when the society needs it to. In India suits nature of
which are malicious are mostly criminal and an absence of remedies for a suit filed
maliciously under civil laws is of least concern over here but the laws governing the suits of
criminal proceedings are also insufficient. One such example is poorly drafted women laws.
Many women till date have capriciously filed suits to obtain benefits but the victim of such
suits has got no remedy.

The Indian legal system has over the time failed to address actual authentic cases and this can
only be changed if the judges while deciding a case leave their conservative approach behind
and evolve laws of which they have got absolute discretion. The courts must stop revisiting

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the incongruous judgements and turn towards framing new laws as per the changing time
demands. One such instance can be discarding the doctrine which defines what can be called
as a prosecution as it always differs from case to case, for instance in a suit inquiry might
inflict sufficient amount of insult onto someone and successfully bring down their image
whereas, in another case a complaint itself might have a potential to bring harm to someone’s
reputation in the society of which such individual is an inhabitant. Not only should remedies
be a concern for the courts’ measures such as taken by China must be taken wherein a person
filing a suit of which he has knowledge to be false is heavily fined and such individual is also
then barred from appealing to the court for a substantial amount of time.

Indian lawmakers should plan on setting up a Criminal Cases Review Commission as has
been set up by the United Kingdom for review of criminal cases to discover whether there has
been miscarriage of justice. The commission works exclusively for ascertaining if there has
been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario
where there is sufficient proof endorsing a claim where justice has not been delivered in the
way it should be those cases, are then referred for appeal along with their reports.

Though there have been observations made by the apex court on several occasions while
dealing cases of malicious prosecution where justice has not been delivered yet, the
lawmakers have failed over and over again to capitalise on that fact and has miserably failed
to come up with a legislation or for the instance even amendments which would serve for the
cause in the short run and at the same time is used to frame relevant laws by conducting
further research as to what is best suited to the legal system of India. It is often blamed on the
courts when such fiascos occur but, if one analysis carefully it is the authority charged with
carrying out such investigation, neglect on whose part has amounted to perversity and on the
contrary have paved the way for forces which are gaining an upper hand for more such
fiascos.

There has been a flagrant violation of the idea of natural justice as all these attempts to set the
law in motion wrongfully to satisfy their plebeian selves and are going unpunished as the
redresses available to the victims are not only scarce but also outrightly inefficient. The
perpetual instances have been alarming enough and the need is now being felt more than ever
before for competent legislation, which would deal with such acts.

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Conclusion:

The recognition of the tort of malicious prosecution has been done to safeguard individual
interests, dealings with such claims which are known to the complainant as false and are
mostly based on wrongful motive. The malicious suits which have been on the rise, in
absence of a concrete legislative framework which could help arrest, these trends where the
legal procedure is being abused in order to gain wrongful benefit by subjecting parties to suits
which are filed with a capricious intention. As there are no legal provisions which exclusively
deal with such cases where there has been a miscarriage of justice, the article has scrutinized
the legislative framework of England and also the approach of the courts over there, when it
comes to dealing with those suits.

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Bibliography

 Bangia, RK (2017). Law of torts, 24th edition.

 Ratanlal & Dhirajlal (2016). Chapter XIII. Law of torts, 26th edition.
 SCC Online, http://www.scconline.com
 Law Commission of India (2017) report 277: wrongful prosecution (miscarriage of
justice)- remedies.

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