Malicious Prosecution

• Meaning of Malicious Prosecution

• Institution of a unsuccessful criminal or bankruptcy or
liquidation proceedings without reasonable or probable
cause.
• Plaintiff will need to provide the following essentials:
• A. he was prosecuted by the defendant
• B . That prosecution was termination in favour of plaintiff
• C. absence of reasonable or probable cause for prosecution
• D. Instituted with malicious intention
• E. Suffered damage
• Elements: That Plaintiff was prosecuted & defendant was
the prosecutor
• Prosecute means to set the law in motion done by appealing
to someone clothed with judicial authority
• Who is Prosecutor?
• Balbhaddar Singh v. Badri Sah (1926) 28 BOM. L.R 921
• If a person lodges knowingly false information with the
police accusing the plaintiff and support the accusation by
his false evidence, he will be considered a prosecutor even
though the court take cognizance of the case on police
report.
• Gaya Prasad v. Bhagat Singh[I.L.R(1908) 30
All.525(P.C.]
• 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.
• MARTIN V. WATSON: 3 All ER 559, [1995] UKHL 25
• If the alleged offence were solely within the complainant’s knowledge,
and that as a practical matter the police officer who laid the
information could not have exercised any independent discretion, the
complainant could be sued for malicious prosecution.
• The complainant had ‘in substance procured the prosecution’. The
police officer to whom the complaint was made had no way of testing
the truthfulness of the accusation.
•  
The tort of malicious prosecution can be committed by an informer
knowingly and maliciously laying a false complaint to the police. The
actions taken by the police are insufficient intervention to interfere
with that liability.
• Before charge or after the charge?
• Dattatreya Pandurang v. Hari Keshav (1948) Bom.
• The defendant lodged an information with police
about the commission of cognizable offence and
pointed out suspicion at the plaintiff as offender. The
police started the investigation, arrested the plaintiff,
took remands from a magistrate pending
investigation but released the plaintiff as no evidence
found to support the case against the plaintiff.
 When does Prosecution commence?
• Calcutta H.C, Madras H.C., and the Orissa H.C. have
held that issue of process to the plaintiff to attend
the court is necessary to constitute prosecution.
• M.P. HC, Allahabad H.C., Patna H.C. have held that
where a complaint is made to a magistrate and he
sends the complaint for police investigation and
after receiving the police report he dismisses the
case . A prosecution results even though no
process has been issued to plaintiff to appear .
• At what stage the proceedings initiated before a judicial
authority can be properly described as 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 presentation of
complaint to a magistrate who dismissed it on the ground that
it 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.
Mohammad Amin v. Jogendra Kumar Bannerjee(1948)51CWN
723(PC)
• Termination of proceedings in favour of plaintiff
• The cause of action arises on the date when the
proceeding terminates in favour of plaintiff.
• Plaintiff is required to prove any of the following
to bring the case-
• Absence of judicial determination of his guilt
• Plaintiff has been acquitted or discharged
• Conviction has been quashed in appeal
• Shiv Shankar Patel v. Phulki Bai [AIR 2007]
• After facing criminal prosecution for 8 years
for theft of crops the respondent was
acquitted…Compensation of Rs. 10000 was
awarded for loss of reputation and mental
agony
 Without reasonable and probable cause
Hicks v. Faulkner (1878) - Reasonable and probable cause :
1.Accuser must have an honest belief in the guilt of the accused
- No reasonable & probable cause – if defendant can be shown to have initiated the prosecution
without himself holding an honest belief [Glinski v. McIver, (1962)]
2. Such belief based on honest conviction of the existence of circumstances which led the accuser to
that conclusion
- sufficient grounds for thinking that accused was probably guilty, but no belief in that probability
3.Such secondly mentioned belief must be based upon reasonable grounds
What are reasonable grounds?
Glinski v. McIver, (1962)– mere belief in truth of the charge not sufficient, unless any “ordinary
prudent & cautious man” in the defendant’s situation concludes that accused was probably guilty
4.Such circumstances so believed must be based on reasonable ground for belief in the guilt of the
accused
– Belief that accused is guilty must be based on grounds, all or some of which are arrived after due
inquiry (Jamandas v. Chunnilal, 1920)
Without reasonable and probable cause

Burden of proving lack of reasonable/probable cause

• Plaintiff must give some evidence that no such cause
existed before defendant can be called to prove existence
of such cause [Abrath v. Northern Eastern Ry. Co. (1886)]
• Where plaintiff has given evidence of absence of such
cause, burden of leading evidence shifts to defendant to
establish the existence of such cause [Surendra Nath v.
Bidhu Bhuson, (1943)]
• ABRATH V NORTH EASTERN RAILWAY CO: HL 1886
• The plaintiff had brought an action against the company of malicious
prosecution. It was rejected by the jury and again on appeal.
•  The appeal failed. in an action for damages for the tort of malicious
prosecution one of the elements of the tort is that there was no
reasonable or probable cause for instituting the prosecution – the
plaintiff in such an action bears the onus of proving absence of
reasonable or probable cause.
There are three grounds necessary to form a reasonable & probable
cause:-
• Person complaining took due care to be informed of the facts
• He honestly believed his allegations to be true
• The facts were such as to constitute prima facie evidence.
• Mohanlal Raghunath Prasad v. Diwan Lachhman Singh
and Anr. AIR 1960 MP 397
• A Criminal Court may acquit or discharge a person for
more than one reason. There may not be, in the opinion
of the Criminal Court, enough evidence Or the evidence
may not have been relied upon for some reason by the
Criminal Court Or there may be other technical defects,
which may result in an acquittal or discharge.
• And yet, the prosecutor (defendant) may have good
reason to launch the prosecution.
 Balwant Singh and Tohers v. R. D. Shah, 1969 71 ITR 550 Delhi

• If the grounds on which reason to believe is founded are non-

existent or are irrelevant or are such on which no reasonable person
can come to that belief, the exercise of power would be bad; but
short of that the courts cannot interfere with the reason to believe
bona fide arrived at by defendant. It is also open to the courts to
examine whether the reasons for the belief have a rational
connection or a relevant bearing to the formation of the belief.
• The existence of circumstances is a condition fundamental to the
making of an opinion, the existence of the circumstances, if
questioned, has to be proved at least prima facie. It is not sufficient
to assert that the circumstances exist and give no clue to what they
are, because the circumstances must be such a to lead to conclusion
of certain definiteness
• State of Tripura v. R.K. Desnath [2007]
• Where plaintiff was found to be in possession of illegal materials
which was legally not authorized to keep without license and a case
was instituted under competent authorities for violation of
provisions' under Essential Commodities Act , the criminal case
which was launched was held not to be a malicious prosecution
• Ramlal v. Mahendra Singh [2008]
• Where plaintiff and his father were acquitted from the murder and
criminal prosecution against the murder of Defendants sons. It was
held that no case of malicious prosecution could be held if there is
reasonable and probable ground including absence of malice
• Counsel’s opinion for institution of prosecution – whether a
defence?

• Whether R&P exists in case of acquittal on appeal post

conviction
• General Rule : If plaintiff is convicted by criminal court - it is a
prima facie evidence for defendant to prove existence of R&P
cause for prosecuting the plaintiff – even though later he was
acquitted on appeal- (Niaz Mohd. v. Alfred Morris, 1947)
• Plaintiff’s acquittal is not prima facie evidence that charge
was unreasonable & false (Byne v. Moore, 1813)
• Question of R&P cause to be determined
upon facts known to the prosecutor at the
time of launching the prosecution, therefore
the fact that prosecution ends in acquittal will
not be used to determine the question of R&P
cause (Bishabhkumar v. KC Sharma, 1961)
• Whether acquittal in criminal case sufficient
proof of absence of R&P cause in a civil suit
for MP?
Liability of Investigating Officer
• when evidence of commission of offence is
from apparently credible source - cannot be
made liable
• If police officer acts on advice of superior
officers- is there R&P cause? -
 Malice
• That the prosecution was instituted not in furtherance of
justice, but ill-will
• Bromage v. Prosser (1825) Bayley, J. define malice as “a
wrongful act done intentionally, without just cause or excuse”

• No question of malice arises if there is R&P cause , i.e.

Presence of R&P cause + malice = no cause of action
• Reason : existence of reasonable cause in plaintiff's mind is
sufficient to enable him to justify the prosecution, whatever
his motive
Absence of R&P cause is not per se evidence of malice
• Absence of R&P cause (Honest belief of R&P cause + no such
cause existed in fact) = not a wrongful act
• Absence of R&P is not an evidence of malice - but lack of
honest belief is an evidence of malice
• If def. is proved to honestly belief in the case - it is conclusive
against plaintiff’s right of action
• But , Absence of R&P cause + malicious motive = wrongful &
actionable

Standard test of determination –depends on facts &

circumstances of each case.
• State of Tripura v. Shri Hardhan Choudhry [2006]
• The plaintiff-respondent was arrested under two cases against him,
one under Section 379 of the Indian Penal Code and the other
under Section 33 of the Indian Forest Act by the information provide
by the Forest Officials Plaintiff-respondent instituted malicious
prosecution case launched against him by the appellants. 
• Held- action of the Forest officials suddenly arresting the plaintiff-
respondent from his house and instituting against him two criminal
cases on the allegation that he had felled those trees from the
protected or reserved forest without making proper query whether
he had taken permission or not is mala fide action on their part
leading to a malicious prosecution.
• Can the prosecution become malicious at
such subsequent stage?
• Factors to be considered in determining
existence of malice - Haste, recklessness,
omission to make reasonable enquiries,
antecedent enmity, spirit of revenge
• Can Principal be liable for Agent’s malice?
• Can a corporation or Govt. be liable for MP.
• Whether acquittal of plaintiff implies malice
of defendant?
 SUFFERED DAMAGE
• Justice Holt emphasized that damages need not be always pecuniary..it can be
estate, person , to profession etc.
• Hence damages can be paid under 3 heads: damage to reputation, damage to
person and to property.
• Mohanlal Raghunath Prasad v. Diwan Lachhman Singh And Anr. AIR 1960
MP 397
• A wrong prosecution of a person causes unnecessary harassment and it gives
rise to an actionable claim for damages. The gist of the action is damage
because a wrong prosecution may have three damaging aspects :
• One, it damages a man's fair name; Two, it puts one in jeopardy of his liberty;
and Three, one is forced to spend money in defending one self. An action for
malicious prosecution bears some analogy to an action for defamation,
inasmuch as it is an action in vindication of character, which is necessarily
involved in a criminal charge by throwing a cloud over one's name.
• A charge which does not injure the fame of accused –
whether damage caused?
Shiv Shankar Patel v. Phulki Bai [AIR 2007]
After facing criminal prosecution for 8 years for theft of crops
the respondent was acquitted. Compensation of Rs. 10000
was awarded for loss of reputation and mental agony.
• Rayson v. South London Tramways Co., 1893 - Charge that
plaintiff was travelling without ticket imputes moral stigma
& plaintiff need not prove pecuniary damage as damage to
reputation will sustain his suit for MP
Het Ram v. Madan Gopal [2007]
Defendant allegedly made false accusation that plaintiff
set his house on fire- reasonable cause absent & malice
found- damages of Rs. 55,000 granted.
Antarajyami Sharma v. Padma Beva [2007]
Allegation of outraging the modesty of woman-
claimed to have seen the plaintiff do it- allegation was
unfounded- plaintiff acquitted- files a case of malicious
prosecution- awarded damages.
 MALICIOUS CIVIL PROCEEDINGS
General Rule : No action lies for instituting an ordinary suit maliciously and without
a R&P cause.
Reason : Such cases do not naturally & necessarily involve damage to party sued.
• A civil action which is false will be dismissed at the hearing.
• Defendant’s reputation will be cleared of all imputations made against him & he
will be indemnified against his expenses by the award of costs against his
opponents.
• The law does not award damages for mental anxiety, or for extra costs incurred
beyond those imposed on the unsuccessful party.
• Other torts are capable of giving adequate protection & relief in such cases (for
instance, defamation, malicious falsehood, conspiracy, misfeasance in public
office)
• But in case of a false or vexatious claim the court can award compensatory costs
under S. 35A, CPC
 Malicious Legal Process or Abuse of Legal
Process
An action for malicious legal process lies for setting law into motion :
• Maliciously
• without any R&P cause
• Thereby causing injury to another’s person or loss of property.
Ingredients
Same as in MP ; damage to person or property must be established.
• Roy v. Prior [1971] Defendant alleged with his own evidence that
plaintiff was evading service of summons earlier issued by Court – based
on this allegation he obtained warrant for plaintiff’s arrest to compel his
appearance as a witness in a criminal case – plaintiff arrested, kept in
custody & later released. Held, warrant was obtained maliciously &
without any R&P cause – suit for damages maintainable.
• Grainger v. Hill [1838]
• Fact- Defendants lent plaintiff £80 repayable in 1837, secured by a mortgage
on P’s vessel. P was to be free to continue to use the vessel in the interim
but the law forbade its use if he were to cease to hold its register. In 1836
the Ds became concerned about the strength of their security. They resolved
to put pressure on P to make early repayment.
• They falsely claimed that the loan was already repayable. They swore an
affidavit of debt, which entitled them, without judicial authority, to cause to
be sued out of court a writ of capias ad respondendum directed at P. This
obliged the local sheriff to capture P with a view to his being brought before
the court and made to respond. The sheriff indicated to P that the Ds would
be content for him not to be arrested if he were to surrender the vessel’s
register. He did so.
• Held- that the tort committed by the Ds was not malicious
prosecution but abuse of the process of the law to effect
an object not within the scope of the process which they
had initiated, namely to ‘extort’ the register, to which they
had no right, from P or to obtain it from him by ‘duress’.
• To allow a defendant to order a plaintiff’s otherwise lawful
claim to be stayed as an abuse of process, he has to show
that the defendant has an ulterior motive, that he seeks a
collateral advantage for himself beyond what the law
offers, and is reaching out ‘to effect an object not within
the scope of the process’.
Distinction between Malicious legal process &
Malicious Prosecution
Legal process taken against the plaintiff is short
of prosecution, eg., a process obtained for arrest
of plaintiff or for attachment of his property.
(Premji v. Govindji, AIR 1947 Sind 169)
Remedy under CPC
• S. 95 of CPC provides summary remedy to a defendant to get
compensation where an arrest or attachment before judgment
has affected/temporary injunction has been granted:
i. if such arrest, attachment or injunction was applied for on
insufficient grounds, or
ii. if the plaintiff fails in the suit & there was no reasonable or
probable grounds instituting the same.
Procedure : Defendant has to present application to Court &
the Court can give compensation up to Rs. 1000, subject to its
pecuniary jurisdiction.
Nature of Remedy-
• S.95, CPC – Alternative remedy & does not
interfere with principles regulating suits for
damages for MLP.
• Where compensation awardable under Code
would be altogether insufficient – it would be
in the interest of defendant to file a separate
suit. ( Wilson v. Kanhya Sahoo, 1869)
Filmistan Distributors (India) v. Hansaben Baldevdas Shivlal AIR 1986 Guj.

• The present appellant Filmistan claimed in the lower court that it was
a lessee and on the original lessee (the firm of Liberty Cinema)
surrendering their lease-hold rights to the receivers trustees, the
appellant company became a direct tenant and was entitled to
possession and to exhibit films; and on that basis it prayed for
perpetual injunction against the present plaintiffs (who are
defendants in the suit) regarding possession, disposal, exhibiting any
film whatsoever, alter, demolishing or renovating the theatre, etc
• This case determine what injury, damage and injustice a long lasting
interim injunction can do to who succeeds finally.
• held that the appellant is liable in tort of abuse of process of Court
and has passed a decree against the appellant for a sum of Rs.
3,00,000/-with costs and interest.
 Misfeasance in Public Office
Claims for misfeasance in public office are rarely brought and even more rarely succeeded
on.  Administrative law remedies and the tort of negligence or other intentional torts,
generally provide an easier path for plaintiffs who take issue with the actions of public
servants

Essence
• Person holding public office has been conferred powers for public benefit (source of power
irrelevant*)
• the defendant must have purportedly exercised a power that was an incident of that office
• the defendant's exercise of power must have been invalid/unlawful
• Either with intent to injure another
• Or with knowledge that he was acting ultra vires
• Such act causes damage to plaintiff
*Power exercised need not have statutory origin - Malicious exercise of power under a
contract also causes liability.
• Three Rivers District Council v. Bank of England, 1996 [2000] 3 All
E.R. 1
Issue- whether a claim against the bank framed in the tort in
misfeasance of public office was sustainable?
Fact- The Bank of England had statutory authority over deposit-taking
institutions. One institution, B.C.C.I., collapsed after fraud was
committed on a large scale by senior staff. Several thousand depositors
brought proceedings against the Bank of England for the tort of
misfeasance in public office. The depositors alleged that senior officials
at the Bank acted in bad faith by granting B.C.C.I. a license when they
knew that was unlawful. They further alleged that the senior officials
breached their statutory duty to supervise B.C.C.I. and to take steps to
close B.C.C.I.
The House of Lords laid down six proposition concerning MPO-

1. The defendant must be a public officer.

2. The defendant’s conduct must involve the exercise of power as a public
officer, or the exercise of public functions.
3. The defendant must be shown to have one of two states of mind:
(i) targeted malice - conduct specifically intended to injure someone. This
includes “bad faith” in the sense of exercising public powers for an
improper or ulterior motive; or
(ii) (ii) acting with subjective knowledge that he has no power to do the act
complained of and subjective knowledge that the act will probably injure
the plaintiff; or acting with subjective reckless indifference with respect to
the illegality of the act and subjective reckless indifference to the outcome.
4. The public officer must owe a duty to the plaintiff, which may
be established by showing that the plaintiff has the right not
to be damaged or injured by a deliberate abuse of power.
5. causation - the plaintiff must show that the defendant’s abuse
of power caused him harm as a matter of fact.
6. The plaintiff must show that he has suffered damages that are
not “too remote” from the defendant’s tortious act. The
plaintiff must show not only that the defendant knew his act
was beyond his powers, but also acted in the knowledge that
his act would probably injure the plaintiff or a person of the
class of which the plaintiff was a member
 If the state of mind in (I) & (II) do not amount to
actual knowledge- they amount to
recklessness – which is sufficient to support
liability under malice.
An action for MPO maintainable where plaintiff
can prove that he has suffered loss as a result.
Common Cause , A Regd. society v. Union of
India, 1996