Malicious Proceedings

or
abuse of legal proceedings
•Malicious prosecution by defendant with malicious
intention
•Termination of proceedings in favour of plaintiff
•Reasonable and probable cause
•Malicious civil proceedings
•Malicious legal process
Malicious prosecution consists in instituting unsuccessful
criminal proceedings
maliciously and without reasonable cause. Malicious
prosecution is malicious institution against another of
unsuccessful criminal or bankruptcy or liquidation proceedings
Malicious Prosecution
•Prosecution by the defendant
•Without any reasonable cause
•With malicious intention
•Proceedings terminated in favour of the present
plaintiff
•Plaintiff suffered damages as a result
Prosecution by the defendant Proceedings
The plaintiff was prosecuted
The defendant was the prosecutor
To prosecute is to set law in motion which is done by an appeal
to some person clothed with judicial authority.
Mere giving information to police or giving complaint to police
does not give right to institute malicious prosecution.
The private person must support the case with action like
producing evidence attend the case as witness. He would be called
as prosecutor
Where the magistrate takes cognizance of the complaint under
sec 190 of crpc, examines the complainant on oath under sec 200,
Holds an inquiry in open court under sec 202 which the plaintiff
attends and dismisses the case under sec 203 of crpc, the prosecution
deemed to have commenced so as to found an action for
malicious prosecution
Proceedings before police authorities is no
prosecution
Nagendra Nath ray v Basanta Das Bairagya,
1929
Boladanda Pemmayya v Ayaradara, 1966
Kajendranath v Jabob chandra, 1977
Proceedings before a quasi judicial authority
Kapoor Chand v Jadish chand, 1974
D.N. Bandopadyaya v Union of India, 1976
prosecution must be instituted by the defendant
In any country as in India, prosecution is not private ,
an action for malicious prosecution in the most literal
sense of the word could not be raised against any
private individual. But giving information to the
authorities which naturally leads to prosecution is just
the same thing
Dattatreya Pandurang Datar v Hari Kesav, 1949
Pannalal v Shrikrishna, 1955
Gayaprasad v Bhagat Singh, 1908
t.s. Bhatta v A.K. Bhatta, 1978
Absence of probable cause and probable cause
Satyakam v Dallu, 1983
Abrath v north Eastern railway Co, 1886
If there is reasonable cause and probable cause for prosecution, malice is
immaterial because existence of reasonable cause in the plaintiff’s mind is
sufficient defence.
The question is not whether the facts believed by the prosecutor are true or not.
The question is whether the prosecutor honestly believes in those facts. The
defendant can claim to be judged not on real facts but on those which he
honestly and however erroneously believes. If he acts honestly upon fiction , he
can claim to be judged on that. Mere honest belief is not enouigh. It is also
necessary that he must act like a reasonable prudent man.

Girija prasad Sharma v Umashankar pathak, 1973

Smt. Manijeh v Sohrab Peshottam Kotwal, 1949
Malice
Apart from showing of Absence of reasonable cause and probable
cause , it is also to be proved that the proceedings were initiated
with a malice spirit, that is, from an indirect and improper motive
and not in furtherance of justice. Hatred or enemity not necessary
to establish malice.

Kamata Prasad Gupta v National Buildings Construction corpn Ltd,

1992
Abdul Majid v Harbansh Chaube, 1974
Bhogilal v Sajojbahen, 1979
Absence of reasonable cause does not necessarily mean the
existence of malice. Both should be seperately proved.
A person may be actuated by malice and yet he may have a
reasonable cause.
Acqittal of plaintiff also is of no evidence of malice. He
cannot sue if he is acquitted for lack of evidence
Some of the items of evidence usually relied upon for
proving malice are haste, reckelessness, ommission to
make due and proper enquiries, spirit of retaliation and
long standing enemity
It is not necessary that the defendant should be acting
maliciously right from the moment the prosecution was
launched. If the plaintiff during the pendency of criminal
proceedings gets the knowledge of the innocence of
defendant, from that moment onwards if he continues the
case, it is malicious.
Termination of proceedings in favour of plaintiff
if the plaintiff has been convicted by the court, he cannot bring an
acton for malicious prosecution, even though he can prove his
innocence and also that the accusation was malicious and
unfounded.
Termination in favour of plaintff 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.
If he has been aquitted on technicality
If the conviction has been quashed
If the prosecution has been discontinued
Or the accused is discharged
Reynolds v kennedy, 1867

If on appeal the proceedings are

terminated in favour of the
plaintiff, he has a cause of action.
Where there is no appeal against
the decision of a court, the action
for malicious prosecution would
not be affected by the fact that, if
an appeal were allowed, the
conviction or aquittal might have
been reversed.
When the proceedings are in
pending, no action can be brought
Damage
Damage to the plaintiff’s reputation
Damage to plaintiff's person
Damage to plaintiff’s property
Wiffen v Bailey Romfort U.D.C, 1915
Sova Rani Dutta v Debabratab Dutta, 1991
Shiv Shankar Patel v Smt. Phulki Bai and others. 2007
Damages for malicious prosecution
Lambodar Sahu v Laxmidhar Panigrahi, 1972
Malicious civil Proceedings

Maintenance and champerty

British cash parcel conveyors Ltd v Lamson
Services Ltd, 1908
Bradlaugh v newdegate, 1883