SUIT FOR MALICIOUS PROSECUTION

A PROPOSAL MADE BY:

NAME: ABHISHEK KUMAR

ROLL NO: 1906

COURSE: B.A., LL.B (Hons.)

FINAL DRAFT SUBMITTED TO:

Dr. B.R.N. Sarma
(FACULTY OF DRAFTING, PLEADINGS & CONVEYANCING)

FINAL DRAFT SUBMITTED FOR COURSE DRAFTING, PLEADINGS AND

CONVEYANCING.

March, 2022.

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur-800001.

 DECLARATION OF STUDENT

I hereby declare that the work reported in the BA LL.B (Hons.) Project Report entitled Suit for
Partition submitted at Chanakya National Law University, Patna is an authentic record of my
work carried out under the supervision of

I have not submitted this work elsewhere for any other degree or diploma and I am fully responsible for
the contents of my Project Report.

ABHISHEK KUMAR
Chanakya National Law University, Patna.
 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who
gave their all support and helped me to complete this project.

First of all I am grateful to my subject teacher Mr. BRN Sarma without the kind support of
whom and help the completion of the project was a herculean task for me. He donated his
valuable time from his busy time to help me to complete this project and suggested me from
where and how to collect data.

I am very thankful 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.

ABHISHEK KUMAR

Roll No. – 1906

RESEARCH METHODOLOGY

The researcher will use Doctrinal Method. The researcher will refer various books, articles various

law journals regarding the project work.

Aims and Objectives:

This research paper looks at the dimensions of suit for malicious prosecution.

Scope and Limitations:

Due to space constraints, the paper is limited to a brief discussion of the points.

Research Questions:

What is the meaning of malicious prosecution?

What is the format of drafting of suit for malicious prosecution?

HYPOTHESIS

The researcher hypotheses that there are certain elements that the plaintiff is required to satisfy in

the suit of malicious prosecution.

Sources of Data:

Secondary sources of data have been used while researching for the paper.

Style of Citation:

A uniform style of citation has been followed throughout the paper.

CHAPTERISATION

1. INTRODUCTION
2. MEANING OF MALICIOUS PROSECUTION
3. ELEMENT OF MALICIOUS PROSECUTION
4. DRAFT FOR THE SUIT OF MALICIOUS PROSECUTION
5. CONCLUSION
BIBLIOGRAPHY
 INTRODUCTION

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.1 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 providesredress for those
who are prosecuted without cause and with malice. 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 favour. Liability of Malicious Prosecution has always had

to steer a path between two competing principles- one, freedom of action that everyone should have to set the
law in motion and to bring criminals to justice and two, the
necessity to check false accusation against innocent people.

Malicious prosecution is a common law intentional tort, while like the tort of abuse of
process, its elements include

(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or
pursued) a legal action (civil or criminal) that is(2) brought

without probable cause and

(3) dismissed in favour of the victim of the malicious prosecution.

In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal
proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.
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. Thetaking of an
appeal, even a frivolous one, is not enough to constitute an abuse of process. The

1
Lossing v. Superior Court (1989) 207 Cal. App. 3d 635, 638-640[255 Cal. Rptr. 18].
mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis foran abuse of
process action.

Origin

The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as
early as Edwards I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance
supplanted it. The gap was filled by an action on the case which
appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious
Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts2. Definition

Malicious prosecution is the malicious institution against another of an unsuccessful criminal,

bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known

as “abuse of process”, that is, abuse of process of law for personal interest.
In Saville v. Roberts3, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might
ground the action. Malicious prosecution might damage-

a. A person’s fame (i.e. his character)

b. Safety of his person

c. Security of his property by reason of his expense in repelling and unjust charge

In an action of malicious prosecution the plaintiff must prove: 1)That he was

prosecuted by the defendant.

2) That the proceeding complained was terminated in favour of the present plaintiff3) 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 mereintention 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.

2
(1738) 90 ER 981 (A)
3
Ibid 2.
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 Chandra4 there was mere lodging of ejahar alleging that the plaintiff wrongfully
took away the bullock cart belonging to the defendant and requested that something shoud be done. The
plaintiff was neither arrested nor prosecuted. It was held that merely bringing the matter before the
executive athourity 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 dismissedit after hearing both the parties.

4
AIR 1977 NOC 207 (Gau).
 ELEMENTS OF MALICIOUS PROSECUTION

1. Institution or continuation of Legal proceedings

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 set the law in

motion and the law is set in motion only by an appeal to some person clothed. The person to
be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the

question whether there is prosecution of a person before process is issued calling upon him to defend himself.
One view was that a prosecution began only when process was
issued and there could be no action when a magistrate dismissed a complaint under section 203 of the code of
criminal procedure. 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.

The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar

Bannerjee5.The defendant had filed a complaint before the magistrate charging the
plaintiff with cheating. The magistrate thereupon examined the complainant an oath and made an inquiry
under s 202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who
attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the complaint under
section 203 of the code. In these circumstances the Privy Council held that there was a prosecution. The test
is not whether the criminal proceedings have reached a stage at which they may be described as a
prosecution, the test is whether such
proceedings have reached a stage at which damage to the plaintiff results. A mere presentationof complaint to
a magistrate who dismissed it on the ground that is disclosed no offence may

not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to
prove that damage actually resulted. In the Gaya Prasad v Bhagat Singh6 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.

5
(1947) 49 BOMLR 584.
6
[1908] 30 All. 525
 2. Termination of the prosecution in the plaintiff’s favour

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.

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. As laid down in Hicks v. Faulkner 7 there must be: an honest belief of the accuser in the guilt of the
accused and such belief must be based on an honest convictionof the existence of circumstances which led the
accuser and 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. 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
factthat the accuser himself thinks that it is reasonable to prosecute does not per se lead to the

7
[1878] 8 QBD 167
conclusion.

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 channeled 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. 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 some of their lordships in the House of Lords suggested that malicious prosecution was
not really an exeption to this rule. The setteled 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 staines 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 qwing 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.

5. Damages

It has to be proved that the plaintiff has suffered damages 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. Robert8 there could be three sort of damages any one of which
could be sufficient to support any action of malicious prosecution.

1) The damage to a man’s fame as where the matter whereof he is accused is scaldalous

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 in neces sary chargesto 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 courtto some extent
would have to consider 9:

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

2) the inconvenience to which the plaintiff was charged to

3) monetary loss

4) The status and prosecution of the person prosecuted.

8
[1795] EngR 3039, (1795) 3 Salk 16 (1795) 91 ER 664.
9
http://law.jrank.org/pages/840/Malicious-Prsecution.html.
MODEL DRAFT NO. 1

In the Court of the Munsif of CIVIL COURT, PATNA

Suit No. of …

SANJEEV KUMAR ................................................................................PLAINTIFF

R/O KANKARBAGH, ROAD NO.5

HOUSE NO.243, PATNA 800001

RADHE SHAYAM .......................................................................................Defendant

R/O BORING ROAD, NAGESHWAR COLONY

ROAD NO.2, PATNA 800003

The plaintiff above-named begs to state as follows: —

1. That on the 13th of May, 2016, the defendant filed a complaint before the Magistrate of

PATNA charging the plaintiff with having burgled the defendant’s house.

2. That a warrant was, in consequence of the complaint, issued for the arrest of the plaintiff,

who was arrested and kept in the lock-up for a period or fifteen days.

3. That after a protracted trial on the said charge the plaintiff was acquitted on the 28 th of

May,2016, on the finding that the complaint was false.

4. That the defendant had made the complaint against the plaintiff maliciously and without a

reasonable or probable cause.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental

pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge.

Particulars of special damage:

Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 3000
Fee paid to his clerk Rs. 300

Expenses incurred in summoning three defence witnesses on two dates Rs. 500

Loss of business as a shop-keeper dealing in clothes Rs. 20000

Total Rs. 23800

6. That the cause of action for the suit arose on the 5th of May, 2016, viz., the date of acquittal.

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction

of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 24800.

Relief:

The plaintiff claims:

1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 23800 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

SANJEEV KUMAR

(PLAINTIFF)

MAHESH VERMA

Pleader.
MODEL DRAFT NO. 2

In the Court of the Magistrate of CIVIL COURT PATNA

Suit No. of …

SIDDHARTH CHAUHAN ................................................................................ PLAINTIFF

R/O MITHAPUR, ROAD NO.5

HOUSE NO.24, PATNA 800001

RADHE SHAYAM ................................................................................................ Defendant

R/O FRAZER ROAD, AG COLONY

ROAD NO.2, PATNA 800003

The plaintiff above named begs to state as follows: —

1. That the defendant’s father, namely chandrabhushan singh was killed by some misceants on

13th of May, 2016. The defendant made a report to the police station at shastri nagar police
station.(being FIR 546 Of 2016) wherein the defendant out of malice and without any
reasonable and probable cause included the plaintiff;s name as of the assailiants.

2. That the plaintiff was arrested on a charge under sec 302, IPC for the alleged murder of

defendents father on 16th may 2016 And remain in custody till 30 th may 2016 when he was
acquitted by sessions judge suresh jha in sessions trial no 3546.of 2017 having been committed
for trial by the committing magistrate by his order. A copy of the order of the committing
magistrate dated 16th may 2016 as well as copy of the order of the sessions judge dated
30th may 2016 are appended herewith. The prosecution of the plaintiffs accordingly terminated
on 30th may 2016

3. That the defendant is guilty of malicious prosecution of the plaintiff and is bound to

compensate the plaintiff for the injury caused

I. To the reputation of the plaintiff;

 II. In respect of the incarceration in police and judicial lockups for a period of 15 days;

III. In respect of pecuniary loss incurred in defending the prosecution.

A schedule incorporating the sums due to the plaintiff from the defendant on the above
mention counts is appended herewith which forms the part of the plaint. The plaintiff
made a demand for the above sum of rupees 71500.from the defendant but the defendant
has not pay the same.

4. That the cause of action for the suit arose on the 30th of May, 2016, on the date of acquittal.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental
pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge

Particulars of special damage:

Fee paid to Sri ramakant jha, Pleader for defence Rs. 10000

Fee paid to his clerk Rs. 1000

Expenses incurred in summoning witnesses on two dates Rs. 500

Loss of business as a shop-keeper dealing in motorbikes Rs. 50000

Total Rs. 61500

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction

of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 71500.

Relief:

The plaintiff claims:

1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 61500 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

Siddharth chauhan

(PLAINTIFF)

SURESH VERMA

Pleader.
MODEL DRAFT NO. 3

IN THE HIGH COURT OF JUDICATURE AT PATNA

Suit No. of …

SUBODH KUMAR ................................................................................ APPELLENT

R/O AGAMKUA, CITY COLONY ROAD NO.5

HOUSE NO.43, PATNA 800001

RADHE MOHAN .......................................................................................... RESPONDANT

R/O BORING ROAD, NEAR CHILDREN PARK

ROAD NO.2, PATNA 800003

The plaintiff above-named begs to state as follows: —

1. That this first appeal is directed against the judgment and decree dated 30-10-2016 of the

District Judge,Patna

2. The facts leading to this appeal, briefly stated are that plaintiff appellant instituted a suit

for damages for malicious prosecution launched in a criminal case arising out of FIR No.
466/16 lodged by defendant at Police Station Kotwali (Bharatpur) on 22-9-16 for offence
punishable under Section 435,1. P. C. The case of the plaintiff as per the plaint is that aforesaid
FIR was totally false because the defendant had pressurised upon the police by adducing false
evidence which resulted in filing of challan against the plaintiff for offence under Section 435,
I. P. C. and for which he had to apply for anticipatory bail twice before the trial Court and once
before the High Court and whereupon he had incurred expenses for advocates fees, and the
launching of such false prosecution by the defendant culminated into acquittal in his favour
by Judgment dated 26-1-17 in Sessions Case No. 26/87. The plaintiff therefore pleaded that his
acquittal is the outcome of malicious prosecution which was launched by the defendant in
order to wreck vengeance which caused physical as well as mental agony for which he is
entitled to damages for such malicious prosecution by way of a decree for amount given later
in the draft against the defendant.
3. That after a protracted trial on the said charge the plaintiff was acquitted on the 26 th of

jan,2017, on the finding that the complaint was false.

4. That the defendant had made the complaint against the plaintiff maliciously and without a

reasonable or probable cause.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental

pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge.

Particulars of special damage:

Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 5000

Fee paid to his clerk Rs. 500

Expenses incurred in summoning three defence witnesses on two dates Rs. 1500

Loss of business as a shop-keeper dealing in clothes Rs. 50000

Total Rs. 57000

6. That the cause of action for the suit arose on the 26th of Jan, 2017, viz., the date of acquittal.

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction

of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 67000.

Relief:
The plaintiff claims:

1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 57000 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

SUBODH KUMAR

(PLAINTIFF)

MAHESH VERMA

Pleader.
 CONCLUSION

An action for damages brought by one against whom a civil suit or criminal proceeding has
been unsuccessfully commenced without PROBABLE CAUSE and for a purpose other than
that of bringing the alleged offender to justice.

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is
not limited to criminal prosecutions but may be brought in response to any baseless and
malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil
respondent in a baseless and malicious case may later file this claim in civil court against the
parties who took an active role in initiating or encouraging the original case. The defendant in
the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or
prosecutor in the original case becomes the defendant. In most states the claim must be filed
within a year after the end of the original case.

A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to
recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit
seeks to win money from the respondent as recompense for the various costs associated with
having to defend against the baseless and vexatious case.

The public policy that supports the action for malicious prosecution is the discouragement
of VEXATIOUS LITIGATION. This policy must compete against one that favors the
freedom of law enforcement officers, judicial officers, and private citizens to participate and
assist in the administration of justice.

In most jurisdictions an action for malicious prosecution is governed by the COMMON

LAW. This means that the authority to bring the action lies in case law from the courts, not
statutes from the legislature. Most legislatures maintain some statutes that give certain
persons IMMUNITY from malicious prosecution for certain acts. In Colorado, for example, a
merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has
occurred, may detain and question the suspect without fear of liability for slander, false
arrest, FALSE IMPRISONMENT, unlawful detention, or malicious prosecution.

An action for malicious prosecution is distinct from an action for false arrest or false
imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest,
the proper remedy is an action for false arrest. If a person is confined against her or his will,
the proper remedy is an action for false imprisonment. An action for malicious prosecution is
appropriate only when the judicial system has been misused.
 BIBLIOGRAPHY
WEBSITE

1. hhttttpp::////llaaw
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Maalliicciioouuss--PPrroosseeccuuttiioonn..hhttm
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2. hhttttpp::////w
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m//aarrttiicclleess//nnoolloo//ppeerrssoonnaall--iinnjjuurryy//llaaw
wssuuiittss--m
maalliicciioouuss--pprroosseeccuuttiioonn-- abuse-
process.html
3. hhttttpp::////w
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w..lleeggaalliinnddiiaa..ccoom
m//ssuuiitt--ffoorr--ddaam
maaggeess--ffoorrm
maatt//

CASES
1. Saville v. Roberts
2. Khagendra Nath v. Jacob Chandra
3. Mohammad Amin v. Jogendra Kumar Bannerjee
4. Gaya Prasad v Bhagat Singh