Malicious Prosecution

INTRODUCTION

<The tort of initiating a criminal prosecution or civil suit against another party
with malice and without probable cause
also, an action for damages based on this tort brought after termination of the
proceedings in favour of the party seeking damages
4 called also malicious use of process
4 compare ABUSE OF PROCESS= 1

OR

<Malicious prosecution is the malicious institution of unsuccessful criminal or

bankruptcy or liquidation proceedings against another without reasonable or
probable cause.= 2

For instituting a suit for malicious prosecution some essentials are required, they are:

1. The Prosecution should be instituted by the defendant.

2. Prosecution that a instituted without any valid reasonable and probable cause.
3. The Defendant acted maliciously or with ill intention and
without a mere intention of taking law into effect.
4. The Proceeding of terminated in favour of the present plaintiff.
5. The plaintiff suffered damages due to the prosecution commenced.

1. Prosecution by the Defendant

The first essential element which the plaintiff is required to prove in a suit for
damages for malicious prosecution is that he (plaintiff) was prosecuted by the
defendant.3 The word <prosecution= carries a wider sense than a trial and
includes criminal proceedings by way of appeal, or revision. In the case of Musa
Yakum v. Manilal,4 it was held that it is no excuse for the defendant that he
instituted the prosecution under the order of a Court, if the Court was moved
by the defendant’s false evidence to give the order.

(i) Prosecution
It should be a criminal prosecution rather than a civil action.
Prosecution means criminal proceedings against a person in a
court of law. A prosecution is there when a criminal charge is
made before a judicial officer or a tribunal.
When does Prosecution Commence?

The Prosecution is not deemed to have commenced before a person is summoned

to answer a complaint. In Khagendra Nath v. Jacob Chandra,5 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 the accused on receiving a complaint of defamation and
subsequently dismissed it after hearing both the parties.6

(i) Prosecution should be instituted by the defendant

A prosecutor is a man who is actively instrumental in putting law in force for

prosecuting another. Although criminal proceedings are conducted in the name
of state but for the purpose of malicious prosecution, a prosecutor is the
person who instigates the proceedings. In Balbhaddar v. Badri Shah,7 the privy
council said, <In any country as in India, prosecution is not private, an action
for malicious prosecution in the most literal sense of the word could not be
raised against any private individual. But giving information to authorities
which naturally leads to prosecution is just the same thing.
And if that is done and trouble caused, an action will lie.=

2. Absence of Reasonable and Probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to
prove that the defendant prosecuted him without reasonable and probable
cause. The question relating to want of reasonable and probable cause in a suit
for malicious prosecution should be decided on all facts before the Court.8 In
the case of Antarajami Sharma v. Padma Bewa,9 it has been said that law is
settled that in a case of damages for malicious prosecution, onus of proof of
absence of reasonable and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor

prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the
accused does not create any presumption of the absence of reasonable and
probable cause. If a man prefers an indictment containing several charges,
whereof for some there is, and for others there is
not, probable cause, his liability for malicious prosecution is complete.10 As laid down in
Hicks v. Faulkner,11 there must be:

(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.

(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. It is the responsibility of the plaintiff to show that
there was no reasonable and probable cause for the prosecution of
the case. If the defendant can be shown to have initiated the
prosecution without the himself holding an honest belief in the
truth of the charge, it cannot be said that he acted upon
reasonable and probable cause. 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 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.
In Shiv Shankar Patel v. Smt. Phulki Bai,12 the respondents were to face
criminal prosecution for 8 years for alleged theft crops, which revealed to have
been harvested and sown by the respondents belonging to the husband of the
respondent. Prosecution ended in acquittal. It was said to have been launched
not with the intention of carrying law into effect, but the with an intention
which was wrongful in point fact, the respondents were awarded compensation
of Rs. 10,000 /- for the suffered loss of reputation in their society and also
mental agony.

3. Malice

Malice for the purposes of malicious prosecution means having any other
motive apart from that of bringing an offender to justice. Spite and ill-will are
sufficient but not necessary conditions of malice. Malice means the presence of
some other and improper motive that is to say the legal process in question for
some other than its legally appointed and appropriate purpose. Anger and
revenge may be proper motives if channelled into the criminal justice system.
The lack of objective and reasonable cause is not evidence of malice but lack of
honest belief is evidence of malice.

In Allen v. Flood13… 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
some of their lordships in the House of Lords suggested that malicious
prosecution was not really an exception to this rule. The settled rule is that
malice is the gist of the action for malicious prosecution and must be proved by
the plaintiff in the first instance. It is for the plaintiff to prove that there was an
existence of malice i.e., the Burden of Proof lies upon the plaintiff.
Evidence of Malice: -

Malice may be proved by previously stains relations, unreasonable or

improper conduct like advertising of the charge or getting up false evidence.
Though mere carelessness is not per se proof of malice unreasonable conduct
like haste, recklessness or failure to prove enquiries would be some evidence.
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. The mere fact that criminal prosecution resulted in acquittal
or discharge of the accused will not establish that the defendant had acted
with malice.

4. Termination of proceedings in favour of the plaintiff

In a suit for damages for malicious prosecution, it is essential to show that the
proceedings complained of terminated in favour of the plaintiff. Termination in
favour of the plaintiff does not mean judicial determination of his innocence; it
means absence of judicial determination of his guilt.14 Malice need not be a
feeling of enmity, spite or ill will or spirit of vengeance but it can be any
improper purpose which motivates the prosecutor, such as to gain a private
collateral advantage.

No action can be brought when the prosecution or the proceedings are still
pending. It is a rule of law that no one shall be allowed to allege of a still
pending suit that it is unjust.15

In Reynolds v. Kennedy,16 it has been held that the original conviction was a
bar to an action for malicious prosecution and subsequent reversal of
conviction, an appeal was of no effect. This position does not appear to be
correct in view of subsequent decisions.17

Thus, if on appeal, the proceedings terminate in favour of the plaintiff, he has

a cause of action.

5. Damage

It has also to be proved that the plaintiff has suffered damage as a consequence
of the prosecution complained. Even though the proceedings are been
terminated in favour of plaintiff, he may had suffered damage because of
prosecution. Damage will be provided.

In a suit for damages for malicious prosecution, it is another essential element

which the plaintiff is required to prove that the plaintiff suffered damage as a
 result of the prosecution.

As observed by Holt, C.J. in Savile v. Robert,18 threefold damage may be

caused to the plaintiff as a result of the prosecution:

First, damages to man’s fame as if the matter whereof he is accused is

scandalous; second, damage to the person, as where a man is put in danger to
lose his life, or liberty; and third, damage to his property, as where he is forced
expend is money in necessary charges to acquit himself of the crime of which
he is accused.

In a claim for malicious prosecution, the plaintiff can thus claim damages on
the following three counts19:

(1) Damage to plaintiff’s reputation;

(2) Damages to plaintiff’s person;
(3) Damage to plaintiff’s property.
Case:- Wiffen v. Bailey Romfort U.D.C.16

The plaintiff having failed to comply with its notice requiring him to clean the walls of some rooms in
his house was prosecuted by the defendants, and on acquittal, he sued for malicious prosecution. It
was held that there was no ground for action, since the failure of the prosecution did not damage his
reputation.

Conlusion

In conclusion, malicious prosecution is a serious legal matter that requires several essential elements
to be proven in order to succeed in a lawsuit seeking damages. These elements include:

1. Prosecution initiated by the defendant: The plaintiff must demonstrate that they were subjected
to criminal proceedings or similar actions instigated by the defendant.

2. Absence of reasonable and probable cause: The plaintiff needs to establish that the prosecution
lacked reasonable and probable cause, meaning there was no valid reason or basis for initiating the
legal action.

3. Malice: Malice refers to the defendant's improper motive in initiating the prosecution, which
could include spite, ill will, or any other improper purpose beyond seeking justice.
4. Termination of proceedings in favor of the plaintiff: It is essential that the legal proceedings
terminate in favor of the plaintiff, indicating the absence of a determination of guilt or wrongdoing.

5. Damage: The plaintiff must demonstrate that they suffered damages as a result of the
prosecution, which could include harm to reputation, person, or property.

Proving these elements can be challenging, as the burden of proof typically rests with the plaintiff.
Evidence of malice may include prior strained relations, unreasonable conduct by the defendant, or
the absence of reasonable cause due to lack of belief in the truth of the charges. It's also important
to note that the mere fact of acquittal or dismissal of charges does not automatically establish
malicious prosecution.

Ultimately, successful claims for malicious prosecution can result in compensation for damages
suffered by the plaintiff. However, each case is unique and must be evaluated based on it