National Law Institute University

Bhopal

Project
On

MALICIOUS PROSECUTION

Submitted to

Submitted by

Dr. Rajiv Kumar Khare

Deepak kaneriya

professor

2012 B.A.LL.B
76Contents

Statement of problem -------------------------------------------------------------

Introduction.------------------------------------------------------------------------

What is malicious Prosecution?--------------------------------------------------

What is Prosecution?--------------------------------------------------------------

Commencement of Prosecution-------------------------------------------------

Essentials of malicious prosecution---------------------------------------------

Prosecution by the defendant.----------------------------------------------------

Want of Reasonable and Probable Cause.-------------------------------------

The plaintiff must show the proof of malice.---------------------------------

Termination of proceedings in favour of the plaintiff.----------------------

Plaintiff needs to have suffered damage.--------------------------------------

Recent case

Conclusion.------------------------------------------------------------------------

Bibliography.----------------------------------------------------

Statement of problem
I have made a critical study of the tort MALICIOUS PROSECUTION and tried to
understand it as an instrument of abuse of legal process. I chose this topic for my project
because malicious prosecution, being a tort which needs malice as an essential element makes
interesting study.

Introduction

This project deals with the study of the tort of Malicious prosecution. If a person files a
criminal complaint against a person whom he knows to be innocent and then allows the
criminal proceedings to take place or to continue, without informing the State of the other
persons innocence, the tort of malicious prosecution is said to be committed.
It takes into account the essentials which are required to make a particular act, an act of
Malicious prosecution.
This project is an honest attempt to analyze the position of Malicious prosecution as a tort
and its impact on the law and legal system and as to how the law has molded itself according
to the different cases that has come before it. It becomes obvious from the different cases,
which have been dealt with in this project. This project also takes into account the intricacies
involved with this particular aspect of law and tries to answer them as far as possible.

Malicious prosecution
Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously
and without reasonable and probable cause. When such prosecution cause actual damage to
the party prosecuted, it is a tort for which he can bring an action.

The law authorizes persons to bring criminals to justice by instituting proceedings

against them. If this authority is misused by somebody by wrongfully setting the law in
motion for improper purpose, the law discourages the same. To prevent false accusations
against innocent person, an action for malicious prosecution is permitted.
In an action for malicious prosecution, the plaintiff has to prove , first that he was
innocent and his innocence was pronounced by the tribunal before which the accusation was
made; secondly, that there was want of reasonable and probable cause for the prosecution, or,
as it may be otherwise stated , that the circumstances of the case were such as to be in the
eyes of the judge inconsistent with the existence of reasonable and probable cause; and lastly,
that the proceedings of which he complains were imitated in a malicious spirit that is from an
indirect and improper motive, and in furtherance of justice.

Prosecution
The word prosecution means proceedings in a court of law charging a person with a crime.
It includes, in India, a proceeding before a magistrate under the prevention section of the
code of criminal procedure for compelling a person to give security for keeping the peace or
for good behavior, on the question whether there is a prosecution of a person before process
is issued calling upon him to defend himself, there was a conflict of authority in the High
Courts. One view was that a prosecution was begin only when process was issued and there
could be no action when a magistrate dismissed a complaint under s 203, of the code of

criminal procedure. The other view was that a prosecution commenced as soon as a charge
was made before a court and before process was issued to the accused.
In a recent Andhra Pradesh case it has been held that the test as to whether a proceeding is a
prosecution under the Code of Criminal Procedure is to see whether notices have been issued
to the plaintiff and in fact whether he was asked to show cause against the proposed action.
In Nagendra Nath Ray v. Basanta Das Bairagya, after a theft had been committed in the
defendants house, he informed the police that he suspected the plaintiff for the same.
Thereupon the plaintiff was arrested by the police but was subsequently discharged by the
magistrate as the final police report showed that there was no evidence connecting the
plaintiff with the theft. In suit for malicious prosecution, it was held that it was not
maintainable because there was no prosecution at all as mere police proceedings are not the
same thing as prosecution.

Commencement of Prosecution
The prosecution is not deemed to have commenced before a person is summoned to answer a
complaint. In khagendra nath v. Jabob chandra, there was a 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
a summons to the accused on receiving a complaint of defamation and subsequently
dismisses it after hearing both the parties.

ESSENTIALS OF MALICIOUS PROSECUTION

1) Prosecution should be instituted by the defendant.
A prosecutor is a man who is actively instrumental in putting the law in force for prosecuting
another. Although criminal proceedings are conducted in the name of the state but for the
purpose of malicious prosecution, a prosecutor is the person who instigates the proceedings.
In Balbhaddar v. Badri sah, the Privy Council said, In any country where, 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 the
authorities that naturally leads to prosecution is just the same thing. And if that is done and
trouble caused, an action will lie.
A person cannot be deemed to be a prosecutor because he gave information of some
offence to the police. The mere giving of information, even though it was false, to the police
can not give cause of action to the plaintiff in a suit for malicious prosecution if he (the
defendant) is not proved to be the real prosecutor by establishing that he was taking active
part in the prosecution, and that he was primarily and directly responsible for prosecution. In

Dattatraya Pandurang Datar v. Hari keshav, the defendant lodged a first information report
to the police regarding the theft at his shop naming the plaintiff, his servant, as being
suspected for theft. After the case was registered, the police started the investigation, the
plaintiff was arrested and remanded by a magistrate, to police custody. On investigation, the
police could not find sufficient evidence against the plaintiff and at the instance of the police,
the bail bond was cancelled and the accused, i.e., the plaintiff in the instant case, was
discharged. There after, the plaintiff sued the defendant for malicious prosecution. It was held
that the essential element for such an action that the plaintiff had been prosecuted by the
defendant could not be established. The defendant had done nothing more than giving
information to the police and it is the police who acted thereafter. The defendant could not be
deemed to be the prosecutor of the plaintiff.

2) Absence of reasonable and probable cause

The plaintiff has also to prove that the defendant prosecuted him without reasonable and
probable cause. Reasonable and probable cause has been defined as an honest belief in the
guilt of the accused upon a full conviction, founded upon reasonable grounds, of the
existence of circumstances, which assuming them to be true would reasonably lead any
ordinarily prudent man placed in the position of the accused to the conclusion that the person
charged was probably guilt of the crime imputed. There is reasonable and probable cause
when the defendant has sufficient grounds for thinking that the plaintiff was probably guilt of
the crime imputed. The prosecutor need not be convicted as to the guilt or maintainability of
the criminal proceedings before he files the complaint, but he may only be satisfied that there
is a proper case to approach the court. Thus, neither mere suspicion is enough nor has the
prosecutor to show that he believed in the probability of the conviction.
In Wyatt v. White, the defendant, a miller, noticed on the plaintiffs wharf a number of his
sacks, some new which bore his mark and others old from which the mark had been cut off.
Believing the sacks to be his own, the defendant charged the plaintiff for theft before the
magistrate. The plaintiff was acquitted and then he sued the defendant for malicious
prosecution. It was held that since some of the sacks observed by the defendant were new, the
defendant had reasonable and probable cause and was, therefore, not liable.

3) Malice
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him,
that is there was malice of some indirect and illegitimate motive in the prosecutor, that is the
primary purpose was something other than to bring the law into effect. It means that the
defendant is actuated not with the intention into effect, but with an intention which was
wrongful in point of fact. malice means the presence of some improper and wrongful motive
that is to say, an intent to use the legal process in question for some other than its legally
appointed or appropriate purpose.
the prosecution must have been launched with an oblique motive only with a view to harass
the plaintiff. It means a wish to injure the plaintiff rather than to vindicate the law.
In Kamta Prasad Gupta v. National Building Construction Coprn. Ltd. The officer of the
respondent corporation found certain articles missing while preparing inventory and checking
up with the stock register. The plaintiff was prosecuted under S.409, I.P.C, but was given the
benefit of doubt and acquitted. The plaintiff brought an action for malicious prosecution. The
plaintiff could not prove that he had been harassed by the officers. There was held to be
reasonable and probable cause for prosecution of the plaintiff, and the fact that the plaintiff
was not harassed indicated that there was no malice, and hence the plaintiffs action for
malicious prosecution failed.

4) Termination of proceeding in favour of the plaintiff

If the plaintiff was convicted by the court then he cannot, obviously, claim malicious
prosecution because even the court thought he was guilty, implying therefore that the
prosecution was justified and not malicious.
It is also essential that the prosecution terminated
in favour of the plaintiff. If the plaintiff has been convicted by a court, he cannot bring an
action for malicious prosecution, even though he can prove his innocence and also that the
accusation was malicious and unfounded.
Termination in favour of the plaintiff does not mean judicial determination of his innocence;
it means absence of judicial determination of his guilt. The proceedings are deemed to have

terminated in favour of the plaintiff when they do not terminate against him. Thus, the
proceedings terminate in favour of the plaintiff if he has been acquitted on technicality,
conviction has been quashed, or the prosecution has been discontinued, or the accused is
discharged.
If the prosecution results in conviction at the at the lover level but the conviction is reversed
in appeal, the question which arises is:
Can an action for malicious prosecution be brought in such a case?
In Reynolds v. Kennedy, 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 no effect.
This position does not appear to be correct in view of subsequent decision. 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 of the prosecution complained of. Even though the proceedings
terminate in favour of the plaintiff, he may have suffered damage as a result of the
prosecution Damage is the gist of the action and in Mohammed Ammin v. Jogendra Kumar,
the Privy Council said;
To find an action for damages for malicious prosecution based upon criminal proceedings,
the test is not whether the criminal proceedings hace reached a stage at which they may be
correctly described as a prosecution; the test is whether such proceedings have reached the
stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as
some of the courts in India in saying the mere representation of a false complaint which first
seeks to se the criminal law in mktion will per se found an action for damages for malicious
prosecution.
In Wiffen v. Bailey Romfort U.D.C, 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.

Recent case
Appellants: Kanti Jha @ Kanti Devi, Wife of Bhagwan Lal Jha, Bhagwan Lal Jha, Son
of Late Balmukund Jha, Pratima, D/o. Bhagwan Lal Jha and Poonam Devi @ Poonam
Jha, D/o. Bhajan Lal Jha, W/o. Raghvendra Narayan Jha
Vs.
Respondent: State of Bihar and Rachna Jha, D/o. Bihari Jha, W/o. Santosh Jha

Respondent filed a Compliant against the accused-Petitioners named above disclosing

therein that her husband, Santosh Kumar Jha had contested last Bihar Assembly Elecction
from Madhepur Assembly Seat as a party candidate of Lok Janshakti. Her husband sent her
along with her daughter, Karnika aged about 5-6 years and a son aged about 4 years on 4th
January 2005 to her Maika for arranging Rs. 50,000/-. After completion of election, on 17th
February 2005 Petitioners-accused Kanti Jha @ Kanti Devi and Bhagwan Lal Jha came and
took away her both children to Patna on the pretext of providing education and since
thereafter they both are missing. Then it has been submitted that she had telephonic
conversation with her children for 2-3 days but since thereafter they both are missing. She
had served an advocate notice, however, without any response. Further had disclosed that her
husband is in custody in connection with Then, she had disclosed that whenever she insisted
for return of her children, Petitioner- accused, Kanti Jha, Bhagwan Lal Jha and Pratima asked
for putting her signature over divorce paper as well as also demanded ransom of Rs. 5 to 25
lacs.

Decision- according to learned judgeIndian Penal Code which reads as follows:

Kidnapping from lawful guardianship.- Whoever takes or entices any minor under[sixteen]
years of age if a male, or under [eighteen]years of age if a female, or any person of unsound

mind, out of the keeping of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship.
Explanation.- The words 'lawful guardian' in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes
himself to be the father of an illegitimate child, or who in good faith believes himself to be
entitled to the lawful custody of such child, unless such act is committed for an immoral or
unlawful purpose.
This exception gimps the act so alleged committed by the accused out of creel, when the said
act does not disclose to have been committed for an immoral or unlawful purpose while
removing the victim even under illusion of being entitled to have lawful custody over victim.
The child is getting good educational facility at renowned school provided by their father and
further making No. complaint of any sort during the course of their physical presence before
the Hon'ble Court, makes the allegation on its face sketchy as well as its origination under
malicious prosecution apart from further supported with pendency of guardianship case.
. In the aforesaid factual aspect subsisting on record, there happens to be full application of
principle enunciated by the Hon'ble Supreme Court in Bhajan Lal (supra) case as a result of
which, the order impugned is quashed. Consequent thereupon, the petition is allowed.

Conclusion

It is obviously a grievance that an individual that an individual should be harassed by legal

proceedings improperly instituted against him. The tort of malicious prosecution unlike
others requires the element of malice or bad intention as its necessary element.
If a person files a criminal complaint against a person whom he knows to be innocent
and then allows the criminal proceedings to take place or to continue, without informing the
State of the other persons innocence, the tort of malicious prosecution is said to be
committed. Essentially this tort prevents people from deliberately harassing others by abusing
the legal process.
This tort I feel needs not only a theoretical but also an empirical study to know a
proper understanding of the courts trends in handling such cases.
I would also like to suggest that the defendant if proved to be liable should not only be
liable for damages but be given a strict punishment as legal process is a frame work in which
justice should be met to all. A person who tries to misuse this must be severely punished
so that it serves as a deterrent effect.
The tort of malicious prosecution is dominated by the problem of balancing two
countervailing interests of high social importance:

Safeguarding the individual from being harassed by unjustifiable litigation.

And, encouraging citizens to aid in law e. nforcement

Bibliography

1. Reading Material, Law of Law of Torts-2, NLIU, Bhopal

2. Ramaswamy Aiyers LAW OF TORTS
3. LAW OF TORTS by R.K.Bangia
4. http://www.manupatra.com
5. http://www.indlaw.com