DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM

PROJECT ON

Malicious Prosecution

BY

Prashant Dixit

Roll.no. 2019 B.A L.L.B 110

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 ACKNOWLEDGEMENT

“To write a project is one of the most significant academic challenges, I have faced
ever. This project has been written by me but there are many people who helped me in
research work , who gave their support and helped me to present this project.

I am very thankful to Mrs. Sunita Gadela for her help to write this project, without the
help of whom and support to completion of the project couldn’t have been possible for
me. She gave her precious time from her busy schedule to support me to write this
project and advised me time to time and told me how to collect data from which source.

I am very grateful to the librarian who provided me several books on this topic which
proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was
very useful and could not be ignored in writing the project. I want to convey most
sincere thanks to my seniors, for helping me throughout the project.

Last but not the least, I am very much thankful to my parents and family, who always
stand aside me and helped me a lot in accessing all sorts of resources.”

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 TABLE OF CONTENT

(I) INTRODUCTION ------------------------------------------------- 5

(II) ELEMENTS OF MALICIOUS PROSECUTION ---------- 14

(III) MALICIOUS LEGAL PROCESS --------------------------- 17

(IV) MAINTENANCE ---------------------------------------- 21

(V) CASE LAWS ------------------------------------------------ 23

(VI) CONCLUSION AND SUGGESTION---------------------------- 27

(VII) BIBLIOGRAPHY---------------------------------------------------- 29

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AIMS AND OBJECTIVES

To have a detailed study of law of torts of Malicious Prosecution.

RESEARCH METHODOLOGY

This research project is solely based on doctrinal type of research work.

SOURCES OF DATA

The researcher has used secondary sources to complete his research. The secondary
sources includes books and internet.

HYPOTHESIS

∙ The researcher believes that legal right to sue a person is reasonably restricted through
Tort of Malicious Prosecution.

RESEARCH QUESTIONS

1.) What is Malicious Prosecution and how does it restrict a person’s legal right of
bringing cause of action against another?

2.) What background information is necessary to fully understand the concept of

malicious prosecution?

3.) Does tort of malicious prosecution negatively affect the society?

4.) Who has the burden of proof if a person wants to sue another for malicious
prosecution?

5.) How is tort of malicious prosecution is in accordance with the law and society?

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 INTRODUCTION

Malicious prosecution is the pernicious establishment of fruitless lawbreaker or chapter

11 or liquidation procedures against another without sensible or reasonable
justification. This tort adjusts contending standards, in particular opportunity that each
individual ought to have in carrying offenders to equity and the requirement for limiting
unfounded indictments against blameless people. Malignant arraignment is a
maltreatment of the procedure of the court by unjustly getting the law under way on a
criminal allegation. The establishment lies in the triangular maltreatment of the court
procedure of the court by unjustly getting the law under way and it is intended to
support the corruption of the hardware of equity for a legitimate reason the tort of
noxious position gives review to the individuals who are arraigned without cause and
with noxiousness. In order to succeed the plaintiff must prove that there was a
prosecution without reasonable and just cause, initiated by malice and the case was
resolved in the plaintiff’s favour1. It is important to demonstrate that harm was endured
because of the arraignment.

Vindictive arraignment is a maltreatment of the procedure of the court by unjustly

getting the law under way on a criminal accusation. So as to succeed the offended party
must demonstrate that there was an arraignment with no fair and sensible reason,
started by perniciousness and the case was chosen in the offended party's support.

To prove that damages were incurred by the plaintiff as a result of the malicious
prosecution is necessary. The burden of proof rests on him. He has to prove the
existence of malice2.

“Malicious prosecution is a tort in which intention matters and it flows from an

unjustified prosecution. It is a tort which compensates a victim for malicious,
unfounded and unsuccessful institution of criminal or disciplinary proceedings.
1
RATANLAL & DHIRAJLAL, THE LAW OF TORTS, 340, (26th ed. , Lexis Nexis), (2013)
2
P.S.A. PILLAI, LAW OF TORT367-368 (9thed., Eastern Book Company) (2016)

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Malicious prosecution is an institution with malice against another of unsuccessful
criminal or bankruptcy without a reasonable cause. It has two competing principles,
namely the freedom that every person should have in bringing criminals to justice and
the need for restraining false accusations against innocent persons.”

In 2009, Canada's Supreme Court wrote:

Malicious prosecution is an intentional tort designed to provide redress for losses

flowing from an unjustified prosecution.

In India, the prosecution must prove the guilt of the accused, i.e., it must establish all
the ingredients of the offence with which he is charged. As in England so also in India,
the general burden of proof is upon the prosecution; and if, on the basis of the evidence
adduced by the prosecution or by the accused, there is a reasonable doubt whether the
accused committed the offence, he is entitled to the benefit of doubt.

ESSENTIALS OF MALICIOUS PROSECUTION

Following are the essential conditions that Plaintiff has to prove in an action
for malicious prosecution:

(i) he was prosecuted by the defendant,

(ii) the proceedings complained of terminated in favour of the Plaintiff if from their
nature they were capable of so terminating,

(iii) the prosecution was instituted against him without any reasonable or probable

cause,

(iv) the prosecution was instituted with malicious intention, and

(v) he has suffered damage to his reputation.

ESSENTIALS OF PROSECUTION

There are two elements for the prosecution—

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1. the Plaintiff has been prosecuted and
2. the defendant has prosecuted the Plaintiff. Legal proceedings have thus started with the
judicial authority.

Proceedings may envelope both types of prosecution i.e., criminal as well as civil. Here
we can understand this aspect that at what stage the proceedings start with the
illustration of case of Bolandanda Premayya v. Ayaradara3.—

“Defendant made a complaint with the police that Plaintiff has committed a theft in his
house. Police called both i.e., Plaintiff as well as defendant in the police station and
recorded their statements. The sub-inspector then made a search in Plaintiff’s house.
But the police found the complaint to be false. The Plaintiff filed a suit for damages
against the defendant in the civil court for malicious prosecution. The court rejected
this plea on this ground that mere filing of complaint with the police doesn’t amount
to prosecution. It starts only, when some judicial authority is set in motion as a
consequence of such complaint.” The suit failed.

So, at what stage, the prosecution commences before the judicial authority, there are
two views on this point:

(a) the prosecution starts as soon as the complaint is made or charge is laid before the
judicial authority. In Balbhaddar Singh v. Badri Shah4 it was observed that the charge
should have been acted upon and process issued by the judicial authority.

(b) the prosecution commences not at the stage when the complaint is made or charge is
laid before the judicial authority, but at the stage when some process has been issued by
such authority for the Plaintiff to appear.

In the case of Mohd. Amin v. Jogender Kumar Banerjee5 the Plaintiff agreed to sell
certain property to defendant who was going to form a company, but later on he
backtracked to do so. On a complaint from defendant, the Magistrate after examining it
on oath, held an inquiry in the open court under section 202 of the Criminal Procedure
Code, 1898. The Plaintiff was accordingly summoned and he appeared with his lawyer.
Thereafter, the Magistrate dismissed the complaint as a result of preliminary enquiry.

3
Bolandanda Premayya v. Ayaradara , AIR 1966 Kant 13.
4
Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46.
5
Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108.

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 The Plaintiff brought a suit against the defendant for damages for malicious
prosecution. The Privy Council held—

“the action for damages for malicious prosecution is part of the common law of

England, administered by the High Court at Calcutta. The foundation of the action lies
in abuse of process of the court by wrongfully setting the law in motion and it is
designed to discourage the perversion of the machinery of justice for an improper
purpose.”

After stating the basis for the tort of malicious prosecution, Sir John Beaumont, J; of
the Privy Council laid down the principle of determining the stage at
which prosecution commences. He said—

To find an action for damages for malicious prosecution based upon criminal

proceeding, the test is not whether the criminal proceedings may be correctly described
as prosecution, the test is whether such proceedings have reached a stage at which
damage to the Plaintiff results. In this case the Magistrate took cognizance of the
complaint, examined the complainant on the oath, held an enquiry in open court under
section 202 which the Plaintiff attended, and, at which the learned judge had found he
incurred costs in defending himself. The plaint alleged the institution of criminal
proceedings of a character necessarily involving damage to reputation and gave
particulars of special damage alleged to have been suffered by the Plaintiff. Their
Lordships think that action was well founded, and on the findings at the trial the
Plaintiff is entitled to judgment.

In criminal proceedings, malicious prosecution commences, when such proceedings

have reached a stage at which damage to Plaintiff results.

PROSECUTION BY THE DEFENDANT

“The Plaintiff has to prove that the prosecution against him was instituted by the
defendant. Prosecutor is a person who is actively instrumental in putting the law in
force, as stated in Dandy v. Beardsley6.

If a person does not file a complaint himself but through the instrumentality of an agent
or counsel, he will be termed as a prosecutor.
6
Dandy v. Beardsley, (1880) 43 LT 603.

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 A private person at whose instance and report the prosecution is launched by the police,
is a prosecutor.

A person is not a prosecutor when the defendant has just given an account of honest
suspicion about the Plaintiff to the police and the police without any further enquiry
started a case against the Plaintiff.

PROCEEDINGS TERMINATED IN FAVOUR OF PLAINTIFF

As discussed above, the Plaintiff has to prove that he was prosecuted by the defendant
and if this prosecution results in conviction of the Plaintiff then no suit would lie
against the defendant. A cause of action arises if the prosecution fails to convict the
Plaintiff.”

PROSECUTION WAS INSTITUTED WITH MALICIOUS INTENTION

The Plaintiff has again to prove that the defendant acted maliciously in prosecuting
him. Malice means indirect and improper motive. In the case Jogendra v. Lingraj7, the
Court described ‘malice’ as—

“As already stated, bad blood existed between defendant and members of the Brahmin
Nijog. Therefore, when defendant found that some members of the Brahmin Nijog were
responsible for committing certain acts in relation to his properties, it is not unlikely
that he availed of the opportunity of implicating others even though they were not
present and did not participate in any of the acts....... is in the circumstances indicative
of improper and wrongful motive and the necessary inference is that it was malicious.”

“In Abdul Majid v. Harbansh Choube8, the Police Station Officer, in a conspiracy
hatched by two other defendants concocted a story that the Plaintiff was involved in a
dacoity and the ‘hansauli’ used in the dacoity was recovered from the house of Plaintiff.
The court acquitted the Plaintiff on giving him the benefit of doubt. The Plaintiff then
brought the action against the defendants. The Court observed that the defendants
adopted improper and wrongful motive to prosecute the Plaintiff on the basis of
concocted story. The Court held defendants liable.”

7
Jogendra v. Lingraj, AIR 1970 Ori 91.
8
Majid v. Harbansh Choube, AIR 1974 All 129.

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 MALICE, MALICE IN FACT AND MALICE IN LAW

“The word “Malice” in common acceptation means and implies “Spite” or “ill-will”.
The legal meaning of “Malice” is “ill-will or spite towards a party and any indirect or
improper motive in taking an action”. This is sometimes described as “Malice in fact”.
Legal “Malice” or “Malice in law” means “something done without lawful excuse”. In
other words, “it is an act done wrongfully and wilfully without reasonable or probable
cause, and not necessarily an act done from ill-feeling and spite. It is deliberate act in
disregard of the rights of others”.

DAMAGES FOR MALICIOUS PROSECUTION

The Plaintiff has to prove that he has suffered damage as a result of his prosecution.
There are three types of damages—

(i) damage to man’s reputation i.e., if person has been accused of scandalous matter;

(ii) damage to the person i.e., when the person is put in danger of losing his life, liberty
or limb;

(iii) the damage to man’s property i.e., where he is forced to spend money to defend
himself of the crime of which he is prosecuted.”

“In Ram Lal v. Mahender Singh9 the Plaintiff and his father had been implicated in an
offence of murder and they were acquitted by the court. Thereafter, the Plaintiff filed
suit for malicious prosecution. It was held that merely because the Plaintiffs came to be
acquitted or discharged by the criminal court as the prosecution failed to prove the case
beyond doubt as is required in criminal law, it does not mean that such acquittal or
discharge could necessarily boomerang upon the defendant as a case
for malicious prosecution. The burden of proof squarely lied upon the Plaintiffs to
prove that the prosecution was malicious, mala fide and done with an intention to
harass and defame the Plaintiffs. No such case was made out by the Plaintiffs, much
less proved. Therefore, the Plaintiffs were not entitled to claim any damages.”

9
Ram Lal v. Mahender Singh, AIR 2008 Raj 8.

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 “Reasonable and 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 circumstances,
which assuming them to be true, would reasonably lead any ordinary prudent man and
cautious man placed in the position of the accuser to the conclusion that the person
charged was probably guilty of the crime imputed. As laid down in Hicks v. Faulkner10
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 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.”

WHAT IS ‘REASONABLE AND PROBABLE CAUSE’?

Reasonable and probable cause was defined in Basebe v. Matthews11as:

An honest belief in the guilt of the accused based upon… 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 the position of the
10
Hicks v. Faulkner, (1878)8 QBD 167 (171).
11
Basebe v. Matthews (1867) LR 2 CP 684.

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 accuser, to the conclusion that the person charged was probably guilty of the crime
imputed.

“Therefore, if the police do not honestly believe that the individual charged is guilty of
the offence, or if a reasonable person would not honestly believe based on the facts that
the individual was probably guilty of the offence in question, there is no reasonable and
probable cause for bringing the prosecution.”

“The former defendant and now Plaintiff in a malicious prosecution action must
demonstrate that the prior action was brought without probable cause. The probable
cause element requires a determination of whether, on the basis of the facts known to
the filing attorney at the time of the filing of the underlying action, the filing of that
underlying action was legally tenable12. Probable cause is a low threshold designed to
protect a litigant’s right to assert arguable legal claims even if the claims are extremely
unlikely to succeed13. Tenability must be measured in light of both the existing
authorities and the leeway a litigant must be given to argue for an evolution of legal
precedents The existence or absence of probable cause is a question of law to be
determined by the Court, before the case goes to the jury.” The presence or lack of
probable cause is determined as an objective standard; the test is whether any
reasonable attorney would have thought the claim tenable.14 If the underlying
complaint’s causes of action were objectively reasonable, the malicious prosecution
claim must fail15. Only those actions that any reasonable attorney would agree totally
and completely without merit may form the basis for a malicious prosecution suit16.
This less stringent standard is based upon what has become known as the Flaherty for
determining frivolous appeals, and more appropriately reflects the important public
policy of avoiding the chilling of novel or debatable legal claims. The standard is thus
designed to accommodate the requirement that the court “properly take into account the
evolutionary potential of legal principles. Probable cause is established by showing that
the “claim ... is legally sufficient and can be substantiated by competent evidence...”17
“And just as an action that ultimately proves non-meritorious may have been brought

12
Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3rd at page 871.
13
Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.
14
Copenbarger v. International Insurance Company (1996) 46 Cal.App.4th 961, 964.
15
Sierra Club Foundation v. Graham, (1999) 72 Cal.App.4th 1135, 1153
16
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.
17
Ibid. at pg 821.

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 with probable cause, successfully defending a lawsuit does not establish that the suit
was brought without probable cause.”18

“In analyzing the issue of probable cause in a malicious prosecution context, the trial
court must consider both the factual circumstances established by the evidence and the
legal theory upon which relief is sought. A litigant will lack probable cause for his
action either if he relies upon facts which he has no reasonable cause to believe to be
true, or if he seeks recovery upon a legal theory, which is untenable under the facts
known to him. “In determining whether the prior action was legally tenable, i.e.,
whether the action was supported by probable cause, the court is to construe the
allegations of the underlying complaint liberally, in a light most favorable to the
malicious prosecution defendant.”19 Probable cause to commence an action may be
present even where the Plaintiff cannot prevail at trial. “Counsel and their clients have a
right to present issues that are arguably correct, even if it is extremely unlikely that they
will win ... every case litigated to a conclusion has a losing party, but that does not
mean the losing position was not arguably meritorious when it was pleaded.20”

“A litigant will lack probable cause for his action either if he relies upon facts which he
has no reasonable cause to believe to be true, or if he seeks recovery upon a legal
theory which is untenable under the facts known to him.”21 While these occur at the
time of the filing of the underlying actions, the California Supreme Court held that an
attorney may become liable during the course of the litigation, even if he or she had
probable cause to file an action, but the attorney later learned of facts that made its
continued prosecution not objectively tenable”.22

2. ELEMENTS OF MALICIOUS PROSECUTION

2.1  Institution or continuation of Legal proceedings23

“There must have been a prosecution initiated by the defendant. The word ‘prosecution’
means a proceeding in a court of law charging a person with a crime. To prosecute is to

18
Plumley v. Mockett, 164 Cal.App.4th at page 1059.
19
Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.
20
Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 741- 743.
21
Sangster v. Paetkau, supra, 68 Cal.App.4th at pages 164-165.
22
Zamos v. Stroud, (2004) 32 Cal.4th 958, 971.
23
Rebecca Broadbent, Malicious Prosecution, The Student Lawyer, (Oct. 8,2017, 7:00 PM),
http://thestudentlawyer.com/2013/04/12/malicious-prosecutions/

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 set the law in motion and the law is set in motion only by an appeal in court. The
person to be sued is the person who has prosecuted the other person. One view was that
a prosecution began only when process was issued and there could be no action when a
magistrate dismissed a complaint. The other view was that a prosecution commenced as
soon as a charge was made before the court and before process was issued to the
accused. 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.”

2.2  Termination of the prosecution in the plaintiff’s favour24 

The plaintiff must prove that the prosecution ended in his favour. He has no right to sue
before it is terminated and while it is pending. The termination may be by 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. If however his is convicted he has no right to
sue and will not be allowed to show that he was innocent and wrongly convicted. His
only remedy in that case is to appeal against the 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.

2.3 Absence of reasonable and probable cause

 ‘Reasonable and 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
circumstances, which assuming them to be true, would reasonably lead any ordinary
prudent man and cautious man placed in the position of the accuser to the conclusion
that the person charged was probably guilty of the crime imputed.

Prateek Shankar Shrivastav, Malicious Prosecution under Law of Tort, Legal Service India, (Oct. 8,2017, 7:10
24

PM), http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html

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 “It is the responsibility of the plaintiff to show that there was no reasonable and
probable cause for the prosecution of the case. If it can be shown that the defendant has
initiated the prosecution without 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. 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 cause25.”

2.4 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 an evidence of malice but lack of honest belief is an evidence of malice 26. 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.”

2.5 Damage

It has to be proved that the plaintiff has suffered damage as a result of the prosecution
complaint of. Even though the proceedings terminate in favour of the plaintiff, he may
suffer damage as a result of the prosecution. The damages may not necessarily be
pecuniary. Acc to HOLT C.J. ‘ s classic analysis in Savile v. Robert there could be
three sort of damages any one of which could be sufficient to support any action of
malicious prosecution.

25
Id
26
Id

15
1) The damage to a man’s fame
2) The damage done to a person as where man is put to a danger of losing his life , limb or
liberty 
3) The damage to a man’s property as where is forced to expend money to acquit himself
of the crime of which he is accused

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 

1) The nature of the offence the plaintiff was charged of 

2) The inconvenience to which the plaintiff was charged to 
3) Monetary loss and 
4) The status and prosecution of the person prosecuted

3. MALICIOUS LEGAL PROCESS

3.1 NATURE OF

“To put into force the process of law maliciously and without any reasonable and
probable cause is wrongful; and, if thereby another is prejudiced in property or person,
there is injury and loss for which an action will lie.27 This tort of malicious legal

27
supra note 1 at 340

16
 process differs from malicious prosecution. The ingredients to be proved are same as in
malicious prosecution except that damage to person or property must be established.
Absence of reasonable and probable cause for taking legal action in execution or
otherwise is some evidence from which malice may be inferred. Termination in favour
of the plaintiff is essential.”

Section 95 of the Code of Civil Procedure gives a remedy to a defendant to get

compensation where an arrest before judgement has been affected or a temporary
injuction has been granted :

(1) if such arrest, attachment or injuction was applied for an insufficient grounds, or

(2) if the plaintiff fails in the suit and there was no reasonable or probable ground for
instituting the suit.

3.2 MALICIOUS ARREST28

“Malicious arrest is maliciously putting the law in motion leading to the arrest of
another, under judicial, process, without reasonable and probable cause. The foundation
of an action for malicious arrest is that the party has obtained an order or authority from
a judge to make an arrest, by knowingly imposing some false statement upon the judge,
or by stating certain facts as being true within his knowledge, when he knew nothing
about them, or by asserting his belief in the truth of a particular statement when he had
no reasonable or probable cause for his belief. An action for malicious arrest is not
sustainable, if the defendant has placed all the facts before the officer having the
discretionary powers to order such arrest and when such officer with full knowledge of
all the facts, exercised his discretion and ordered the arrest. A suit to recover damages
lies on account of injuries caused by an arrest, in accordance with the execution of
order and later the proof that the arrest was procured maliciously.”

3.3 MALICIOUS SEARCH29

28
supra note 1 at 341
29
supra note 1 at 341

17
 “An action lies for maliciously procuring a house search. It has long been recognized to
be actionable wrong to procure a search warrant without reasonable and probable cause
and with malice.”

3.4 MALICIOUS PROCESS AGAINST PROPERTY30

“Where a person maliciously and without reasonable and probable cause by means of
civil proceedings, procures execution or distress against the property of another, an
action will lie against him for damages. A distinction is drawn between acts done
without judicial sanction and acts done under judicial sanction improperly obtained. If
goods are seized under a writ or a warrant which authorised the seizure, the seizure is
lawful and no action will lie in respect of the seizure unless the person complaining can
establish its remedy by proving malice and want of reasonable and probable cause. If,
however, the writ or warrant did not authorise the seizure of the goods, an action would
lie for damages caused by the wrongful seizure without proof of malice. If a person
causes an attachment before judgment to be levied carelessly and recklessly and
without sufficient or reasonable ground he will be liable in damages. The proceedings
in which the attachment complained of is taken out should have terminated in favour of
the plaintiff or the particular process complained of should have been superseded or
discharged. This is not necessary if from the nature of the proceedings they are
incapable of so terminating. The judgment-creditor is not responsible for the mistake or
misconduct of the officer, unless he or his servants have personally interfered and
directed the action of the officer. It is an actionable wrong to issue execution against
the property of a judgment-debtor, after the judgment-debt has been paid, or to get an
injunction wrongfully issued. Proof of malice is not necessary when the property of a
stranger, not a party to the suit, is taken in execution. Where the plaintiff bringing a suit
for malicious legal process is a party to a suit, proof of malice is necessary. The
plaintiff must prove special damage. As explained by the Supreme Court where the
property belonging to a person not a party to the suit is wrongly attached the action
brought by such a person for damages is really an action grounded on trespass where
the plaintiff is not required to prove malice, absence of reasonable or probable cause or
special damage and it is for the defendant to prove a good cause or excuse. In contrast
30
supra note 1 at 342

18
 where the act of attachment complained of was done under judicial sanction, though at
the instance of a party, the remedy is an action for malicious judicial process where the
plaintiff has to prove malice and absence of reasonable or probable cause on the part of
the defendant. If property wrongfully attached is sold, the owner of the property so
sold is entitled to sue either for the restoration of the same specifically or for damages.
The rightful owner may follow the property in the hands of the purchaser who
purchased it at his own risk and peri1.”

The claim of a person for damages for wrongful attachment of property can fall under
two heads-(1) trespass and (2) malicious legal process. Where property belonging to a
person, not a party to the suit, is wrongly attached, the action is really one grounded on
trespass. But where the act of attachment complained of was done under judicial
sanction, though at the instance of a party, the remedy is an action for malicious legal
process. In the case of malicious legal process of court, the plaintiff has to prove
absence of probable and reasonable cause. In cases of trespass the plaintiff has only to
prove the trespass and it is for the defendant to prove a good cause or excuse. In the
former case plaintiff has to prove malice on the part of the defendant while in the latter
case it is not necessary.

3.5 PROCURING ERRONEOUS DECISION OF COURT31

“No action will lie against any person for procuring an erroneous decision of a court of
Justice. This is so, even though the court has no jurisdiction in the matter and although
its judgment or order is for that or any other reason invalid. A court of Justice is not the
agent or servant of the litigant who sets it in motion so as to make that litigant
responsible for the errors of law or fact which the court commits. Every party is entitled
to rely absolutely on the presumption that the court will observe the limits of its own
jurisdiction and decide correctly on the facts and law. No action will lie against any
person for issuing execution or otherwise acting in pursuance of a judgment or order,
even though it is erroneous. A valid order. however, erroneous in law or fact, is a
sufficient justification for any act done in pursuance of it. The remedy of the aggrieved
party is to appeal and not to bring an action for damages. But if the proceeding or
process causing a person injury terminated in his favour, that person can institute an

31
supra note 1 at 344

19
 action of malicious prosecution or malicious legal process if the conditions for these
actions as mentioned above are satisfied.”

3.6 DAMAGES32

“Damages in awarding damages for malicious arrest the costs and expenses incurred by
the plaintiff by reason of the arrest and in obtaining his discharge must be taken into
consideration. In the case of loss of goods arising from wrongful attachment the
measure of damages will be the value of the goods at the time of the wrongful
attachment. The litigation and delay and also any depreciation of the goods by an
intermediate fall in the market, between attachment and sale, are the natural and
necessary consequences of the unlawful act for which damages are recoverable. If the
defendant's act was without a probable cause and evinced a malicious motive on his
part damages should be in the nature of penalty as well as of compensation.

When a person maliciously and without any probable cause, by means of civil
proceedings, procures execution or distress against the property of another, an action
lies against him for damages.”

4. MAINTENANCE

“Maintenance is the officious intermeddling by pecuniary or other assistance with

another's litigation in which the intermeddler has no concern. Champerty is that form of
it in which the intermeddler renders assistance by bargaining for a share of the profits
of litigation. Champerty is an illegal agreement in which a person with no previous
interest in a lawsuit finances it with a view to sharing the disputed property if the suit
succeeds. In India, the old English statutes against maintenance and champerty have no
32
supra note 1 at 344

20
 counterpart33. Therefore, it has been held that an action for the tort of maintenance can
lie here only on grounds analogous to those for malicious abuse of process. The
plaintiff must prove also his success in the previous suit, want of reasonable and
probable cause, and malice. Malice means some improper motive like a desire to injure
or harass the plaintiff. In England by the Criminal Law Act of 1967, both maintenance
and champerty have ceased to constitute an offence or as furnishing a cause of action in
tort. In view of the restricted scope of the wrong, actions for maintenance can rarely
arise in this country.

The new expression which describes the unethical practice of advocates like champerty
is 'ambulance chasing litigation'. An advocate chasing an accident victim, securing
his signature on the 'brief' and then appropriating a huge amount of share in damages
awarded by the tribunal, is a wrongful practice, denounced by judges as against the
professional code of ethics. To discourage this ‘misconduct’, court refused to release
money in favour of the council, and specifically directed release through fixed deposit
bonds in national banks.”

4.1 SPECIAL DAMAGES34

In an action for the tort of maintenance, the plaintiff should prove special damage. In
Neville v London Newspaper Ltd," the plaintiff was developing his estate in Sussex
into a seaside resort and offered prizes of freehold land for persons who would suggest
a suitable name for the place and send three guineas. A number of persons responded.
The defendants published articles in the newspaper stating that the plaintiff's offer of
lands was fraudulent and was really for sale at a profit and assisted a number of persons
to file suits and recover the moneys paid. The plaintiff who had to pay back the money
and costs, sued the defendants for maintenance. The House of Lords held that the
wrong of maintenance did not belong to the category of invasions of absolute rights for
which nominal damages could be got but was actionable only on proof of damage. As
for the damage complained of, it was the consequence of the plaintiff's own fraud and
not of the defendant's wrongdoing and therefore, the plaintiff's action failed. It cannot

33
RAMASWAMY IYER, THE LAW OF TORTS 441-442 (9th ed., Lexis Nexis) (2006)
34
DR. J.N. PANDEY, LAW OF TORTS 215 (5th ed., Central Law Publications) (2005)

21
 be regarded as damage sufficient to maintain an action that the plaintiff has had to
discharge his legal obligations or that he has incurred expenses in endeavouring to
evade them.

4.2 DEFENCES35

In this action it is open to the defendant to show a lawful justification for assuming
another's suit, e.g. a common interest as between co-owner or between landlord and
tenant, near relation of the person assisted and motives of charity. It is no defence that
the maintained suit resulted in favour of the plaintiff therein. This fact may, however,
disprove the causal connection between the damage and wrong complained of.

5. CASE LAWS

1. Abrath vs. North Eastern Railway36

In this case, Abrath, the plaintiff was a surgeon, who had attented one M for bodily
injuries alleged to have been sustained in a collision upon the defendant’s Railways. M
brought an action against the defendant railway company and recovered a large sum
against the company. Subsequently, the directors received certain information which
they laid before their counsel who advised that Abrath and M should be prosecuted for

35
supra note 12
36
(1886) 11 App Cas 247

22
 conspiring to defraud the company. Accordingly, the company prosecuted them. Abrath
was aquitted. Abrath then sued company for malicious prosecution.

At the trial in the High Court it was proved that:

(1) defendants took reasonable care to ascertain the facts,

(2) they honestly believed that the company had been defrauded.

The high court gave judgment for the defendants as the plaintiff failed to prove want of
reasonable and probable cause, his suit could not succeed.

2. Sunit Kumar vs. Ladu Ram Sulania37

In this case, the respondent/landlord lodged F.I.R. against the appellant/tenant alleging
criminal trespass over open land, near tenanted 'Kothari' and also creating nuisance by
way of stocking empty boxes and other material and throwing rotten vegetables and
garbage. The trial Court acquitted the tenant. The tenant filed a suit against the landlord
for damages for malicious prosecution which was dismissed. Thereafter he filed an
appeal before the High Court. The landlord contended that mere acquittal in criminal
case does not amount that the F.I.R was false one. But the tenant made his submissions
relied upon Satdeo Prasad v. Ram Narayan in which it was held that "accusation against
the plaintiff in respect of offend which defendant claims to have seen him commit and
the trial ends at acquittal on merits, presumption will be not only that plaintiff was
innocent but also that there was no reasonable and probable cause for accusation.
Admitting the submission of the appellant/tenant the High Court held that in view of
the evidence available on record that one `Kothari’ along with open land was given on
rent to the appellant and remaining offences were also found false. The landlord did not
seize any articles or filthy material from the said place and his statement did not find
corroboration. Landlord completely failed to prove any of these allegations by any
positive evidence. It was also evident that both tenant and the landlord filed a number
of cases against each other. Hence malice is well proved. Therefore, the F.I.R. lodged
by the landlord was false to his knowledge and the tenant appellant was prosecuted by
the defendant without reasonable and probable cause.

37
AIR 2004 Rajasthan 30

23
 3. State of Punjab vs. Des Raj38

“In this case, the plaintiff was doing business in foodgrains and was having a very good
reputation. A 'Food Inspector' was having ill-will against the plaintiff as he did not
supply him one bag of rice free of cost. Due to that grudge, he falsely implicated the
plaintiff. The prosecution was launched against the plaintiff on the basis of a false
report made by the food inspector. The trial Court acquitted the plaintiff and held that
the prosecution had failed to prove the allegations levelled against the accused. The
allegations were found to be false. After his acquittal, the plaintiff filed the suit for
recovery of damages for his malicious prosecution. The Court held that the arrest and
detention of the plaintiff was without reasonable and probable cause and his
prosecution was totally malicious. Therefore the plaintiff was entitled for damages. The
appeal, filed by the State of Punjab against the said judgment was dismissed.
Thereafter, against the aforesaid judgments, State of Punjab filed the Second Appeal in
the High Court. The High Court held that the appellant failed to prove illegality in the
findings of facts recorded by the Courts below, hence the prosecution launched against
the plaintiff without proper investigation, was totally malicious.”

4. Madan Mohan Singh vs Bhirgunath39

In this case the appellant lodged information at a police station alleging that he
identified the plaintiff as having taken part in the dacoity in his house. As a result of the
information the police searched the house of the plaintiff and placed him under arrest.
The plaintiff was subsequently produced before the magistrate and an order of remand
was taken. The proceedings ended there and there was no further formal charge. In the
result. the plaintiff suffered imprisonment in consequence for 39 days and his
reputation was also damaged. In the suit for damages for malicious prosecution, it was
held that the defendant must be taken to have actively instigated the prosecution of the
plaintiffs and that the magistrate in remanding the plaintiff acted judicially, and that the
action was well founded and that the appellants were liable to pay damages in tort to
the plaintiff.

38
AIR 2004 Punjab and Haryana 113
39
AIR 1952 Pat 283

24
 Ramaswami. J. said: "The foundation of the action for malicious prosecution lies in the
abuse of the process of the court by wrongfully setting the law in motion and it is
designed to discourage the machinery of justice for an improper purpose. In order to
succeed, the plaintiff must prove that the proceedings were malicious, without
reasonable and probable cause, that they terminated in his favour and that he had
suffered damage. The action lies for the malicious prosecution of certain classes of civil
proceedings, for instance, falsely and maliciously presenting a petition in bankruptcy or
a petition to wind up a company.

5. Herniman vs Smith40

“In this case, a timber merchant had supplied timber from time to time to a builder. On
several of those occasions, deliveries of timber were made accompanied by fraudulent
documents, which induced the builder to pay to the timber merchant money to which
the latter was not entitled. The builder preferred against the timber merchant a charge of
having unlawfully and knowingly conspired with one R to cheat and defraud the
builder. At the trial the timber merchant was found guilty and sentenced to
imprisonment. But in the Court of Criminal Appeal the conviction was quashed. Then
the timber merchant brought an action against the builder for malicious prosecution.
The latter was held not liable by the House of Lords. Their lordships said that in the
circumstances there was reasonable and probable cause for a prosecution and it was the
function of a Judge to decide whether the proved facts amounted to a reasonable and
probable cause or not. Lord Atkin said: "It is not required of any prosecutor that he
must have tested every possible relevant fact before he takes action. His duty is not to
ascertain whether there is a defence but whether there is a reasonable and probable
cause for a prosecution.” Reasonable and probable cause was defined "as an honest
belief in the guilt of the accused based upon a full conviction founded upon 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 the position of
the accuser, to the conclusion that the person charged was probably guilty of the crime
imputed.

40
1983 AC 305

25
 6.CONCLUSION AND SUGGESTION

Malicious prosecution is the malicious institution of criminal proceedings on another

without any just or probable cause. It is an abuse of the process of court by wrongfully
setting the law in motion on a criminal charge. It is necessary for the plaintiff to prove
that some damage has been suffered as the result of prosecution. Malice can also be
proved by establishing the fact that there were some previous conflicts between two
persons or they hold a personal grudge against each other.

26
There are some elements of malicious prosecution which the plaintiff has to prove in
order to claim damages. Like, institution of legal proceedings, termination of
proceedings in favour of plaintiff, absence of reasonable and probable cause, presence
of malice, and damage has been caused as a result. Without the presence of one of these
elements the suit for malicious prosecution shall fail.

In the present case scenario, people files suit against another because they hold personal
grudge against another. So, to defame them or to lower their present status in the
society, they file false cases due to which false proceedings take place. Due to these
proceedings, the time and money of the plaintiff is wasted. The time of court is also
wasted as lakhs of cases are already pending in the courts of India. The courts could
give their time to other cases rather than spending their time on false cases. So, tort of
malicious prosecution gives the plaintiff a chance to recover the losses in terms of
money and time, but for that he has to prove the essentials of the malicious prosecution,
failing to do so will result in acquittal of the defendant. The defendant can also defend
himself by proving the fact that the suit was brought out of probable and reasonable
cause.

The tort of malicious prosecution is also in accordance with the law and society as it
watches over the use or misuse of legal rights of the people. It checks whether the
society and law is going together with each other or not. It gives justice to those who
suffers the damage of reputation through false accusations and proceedings. Law means
Justice. So, the person who suffered gets his justice through tort of malicious
prosecution and this helps in maintaining peace and harmony in the society. The society
keeps its belief in the laws made by the legislature and the judgements of the court.
They faith of getting justice is not broken and the people will keep believing in the
legal system of India.

Thus, malicious prosecution is a tort which reasonably restricts a person’s legal right to
sue a person.

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 BIBLIOGRAPHY

BOOKS REFERRED

 LAW OF TORT by P.S.A. PILLAI

 LAW OF TORTS by J.N. PANDEY
 THE LAW OF TORTS by RAMASWAMY IYER
 THE LAW OF TORTS by RATANLAL & DHIRAJLAL

28
 WEBSITES REFERRED

 WWW.THESTUDENTLAWYER.COM
 WWW.LEGALSERVICEINDIA.COM

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