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Important components of Malicious Prosecution

This article is on the Essential ingredients of Malicious Prosecution written by Pooja Ganesh student of SASTRA Deemed University


When a person with a malicious intention institutes wrongful criminal proceedings against someone without probable cause or reasonable ground, then it is known as malicious prosecution. The charges which are filed maliciously harass, defames, or injures the innocent person. The baseless litigation against the person causes malicious prosecution. A wrongful conviction takes place due to malicious prosecution. Malicious prosecution abuses the process of the court by filing a wrongful suit. The Supreme Court has defined malicious prosecution as “A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it.”[1]

In a suit of malicious prosecution, the plaintiff should prove that he was wrongfully convicted without any reasonable cause and has suffered damage because of the prosecution. Under the suit of malicious prosecution, the defendant becomes the plaintiff and the plaintiff becomes the defendant. Malicious prosecution includes malicious arrest also, the victim can sue the police officers for the damage they have done to him. The tort of malicious prosecution balances two things:

  1. Every criminal should be punished by law.
  2. Every innocent should be protected against false accusations.

Ingredients of malicious prosecution

The prosecution has been initiated by the defendant

Prosecution means initiating a legal proceeding against a person in the court of law for a crime. Malicious prosecution should satisfy these two conditions:

  • Plaintiff has to be prosecuted
  • The defendant was the prosecutor who had prosecuted the plaintiff.

It is the duty of the plaintiff to prove that he was prosecuted by the defendant.[2] A suit of malicious prosecution cannot be maintained if there is no prosecution initiated. If the plaintiff has been discharged by the magistrate after the arrest by police, then only police proceedings cannot be considered as prosecution.

In Mohammad Amin v. Jogendra Kumar Bannerjee[3], it was held that if a Magistrate dismisses a complaint under Section 203 of the criminal procedure code, then a mere presentation of a complaint cannot be considered as prosecution. It was further held that the plaintiff has not reached the stage to incur damage as per the test for determination. Therefore, merely bringing the issue before an executive authority cannot be regarded as for prosecution.[4]

The Supreme Court held that departmental proceedings cannot be taken as prosecution because the element of malice is missing and the plaintiff was not prosecuted before a judicial authority.[5]

In the case of Madan Mohan Singh v. Bhrigunath Singh[6], a person was in jail custody for 40 days and there was cognizance taken of the offence, it was held that prosecution has been initiated in the case, therefore there is a purpose to file a suit for malicious prosecution by the plaintiff.

The liability of malicious prosecution does not rest only upon the actual prosecutor. The prosecutor includes the person who causes the prosecution and also who proceeds with the malicious case.[7] The police, witness, court staffs are equally responsible to the plaintiff or victim of a malicious case.

The prosecution was baseless without any reasonable cause

The person who initiates prosecution should have an honest belief in guilt and reasonable ground to accuse a person. In the matter of malicious prosecution, there is no such reasonable ground, the accuser dishonestly summons a person as guilty. The test for reasonable cause should satisfy these conditions:

The plaintiff or the victim has the responsibility to show that reasonable cause was absent, and the test of the reasonable ground is not satisfied. In order to recover damages, the plaintiff has the onus of proof to show that there was no reasonable or probable ground.[8] The court decided that the probable cause depends on the case, it differs from the facts of the case.[9]

In the case of Girija Prasad Shankar v. Umashankar Pathak[10], a sort of agitation on the issue of food scarcity in Panna District was started by Jansangh. The plaintiff was an advocate and a Jansangh leader. Girija, the sub-inspector was on duty to control the crowd.  Some shots were fired accidentally in the crowd from the revolver of Girija Prasad.

He filed an FIR on the same day stating that he was assaulted by the crowd and his watch was also snatched. He also stated that Umashankar, the plaintiff was present in the crowd and was instigating the crowd to beat him. The court found that the plaintiff was not present that day in the crowd and the complaint made by him was false.

Therefore, Girija Prasad was acting falsely implicating the plaintiff without any reasonable ground for accusation and he was held liable for malicious prosecution. In a few cases, the court has held that both malice and the absence of reasonable cause has to be proved in a malicious prosecution case.[11]

The prosecution has been ended in his favor

If the proceedings terminate in the favor of the plaintiff, then he can initiate a suit of malicious prosecution. The burden of proof is on the plaintiff to show that the proceedings ended in his favor. If the prosecution against the plaintiff ends in the favor defendant then no sit can lie against him. The prosecution terminates in the favor of the plaintiff when:

  • The plaintiff or victim is acquitted.
  • The prosecution initiated by the defendant was discontinued or withdrawn by him.
  • The court quashes or passes an order to set aside the conviction against the plaintiff.

The plaintiff does not have the right to initiate a suit for malicious prosecution when the prosecution against him is pending. . In the case of Dhanjishaw Rattanji v. Bombay Municipality[12], it was stated that “It is a rule of law that no one shall be allowed to allege of a still depending suit that is unjust”.

If the plaintiff has been convicted then he fails to initiate a malicious prosecution suit. But he can appeal against such a conviction. If the appeal results in favor of the petitioner then he initiates a suit of malicious prosecution.

The defendant acted with malicious intent

The defendant should have acted with malice to cause injury to the plaintiff. Malice is a deliberate unlawful intention that may cause damage or injury to a person. There should be an improper motive behind the initiation of prosecution by the defendant against the plaintiff.

The absence of reasonable ground cannot be the sole reason for malice, lack of honesty by the defendant should be present. The burden for proof lies on the plaintiff to show the malicious intent of the defendant. The act of malice should be proved in the prosecution initiated against the victim. Anger or revenge are the causes of this malicious intent.

In the case of Kamta Prasad v. National Buildings Constructions Corporation Pvt Ltd,[13] the plaintiff was prosecuted for dishonest misappropriation of property, but was given the benefit of doubt and was acquitted. He filed a suit for malicious prosecution. But the court held there was reasonable ground for prosecuting the plaintiff and there was no malice.

It is not compulsory to prove that malicious intent was present from the beginning of prosecution, it can be developed during the pendency of the criminal prosecution also. Mere acquittal or discharge of the plaintiff does not prove the defendant’s malicious intent.[14] Malice has to be inferred from the circumstances of the case, and it cannot be proved directly by any evidence.[15]

Damage or injury to the plaintiff

Even though the prosecution initiated by the defendant ends in favor of the plaintiff, he would have suffered damage due to the prosecution led against him. It doesn’t need to be pecuniary. The damage can be caused to his reputation or his property. The plaintiff may have incurred injury that would have put his life in danger. The damage can be any other physical injuries also.

There should not be remoteness between the malicious prosecution and the damage incurred by him. Social non-acceptance or deprivation of fundamental rights can also be considered as damage to initiate a suit of malicious prosecution. So damages can be categorized as:[16]

  • A Damage to reputation
  • Damage to a person
  • A Damage to the property.

The plaintiff has to prove that he has incurred such damage or injury due to the prosecution. The plaintiff faced humiliation due to handcuffing as a result of a false FIR filed by the defendant, therefore he was held liable.[17]

Effect of wrongful prosecution on the rights of the citizens

Section 211 of the Indian Penal Code punishes a person who institutes a criminal proceeding against another person without any lawful ground. Section 499 and 500 of the Indian penal code talks about criminal defamation and its punishment for it.

Even though they are certain legal provisions to protect the victim of malicious prosecution, the right of the person is severely damaged by the wrongful prosecution initiated against him. Article 21 of the Indian Constitution confers the right to life and liberty to every person.

The fundamental right of the victim under Article 21 is violated due to malicious prosecution. The innocent people are projected as criminals and their reputation his immensely affected. The right to privacy of the individual is also violated due to these wrongful implications.
The malicious prosecution does not affect the victim alone, the family and friends of the victim also suffer equally. The wrongful convictions results in miscarriage of justice and the sanctity of individual rights are lost.


Every person has the right to set the judicial machinery in motion by initiating prosecution in order to protect his rights or for the public interest. But such a right should not affect the rights of other people. Such rights should not be misused by instituting improper legal proceedings. It would harass the other person with unjustifiable litigation and the process of court is abused.

The victim can recover damages by proving that the prosecution was initiated by malice, absence of reasonable ground, and the prosecution was decided in the favor of the plaintiff. To protect the fundamental rights of the people and to prevent the law from being misused, a deterrent form of justice is the only way.

[1] West Bengal State Electricity Board v. Dilip Kumar Ray, A.I.R. 2007 S.C. 976.

[2] Ganga Din v. Krishna Dutt, A.I.R. 1972 All 420.

[3] Mohammad Amin v. Jogendra Kumar Bannerjee, (1947) 49 B.O.M.L.R. 584.

[4] Khagendra Nath v. Jacob Chandra, A.I.R. 1977 N.O.C. 207(Gau).

[5] D.N. Bandopadhyaya v. Union of India, A.I.R. 1976 Raj. 83.

[6] Madan Mohan Singh v. Bhrigunath Singh, A.I.R. 1952 Pat 283.

[7] Badduri Chandra Reddy v. Pammi Rami Reddy, A.I.R. 1955 A.P. 229.

[8] Antarajami Sharma v. Padma Bewa, A.I.R. 2007 Ori. 107.

[9] Niaz Mohammad Khan v. Deane, (1948) I.L.R. 2 Cal 310.

[10] Girija Prasad Shankar v. Umashankar Pathak, A.I.R. 1973 M.P. 79.

[11] Sheo Singh v. Ranjit Singh, A.I.R. 1983 All 105.

[12] Dhanjishaw Rattanji v. Bombay Municipality, A.I.R. 1945 Bom. 320.

[13] Kamta Prasad v. National Buildings Constructions Corporation Pvt Ltd, A.I.R. 1992 Delhi 275.

[14] Ram Lal v. Mahendra Singh, A.I.R. 2008 Raj 8.

[15] Jogendra Garabadu v. Lingaraj Patra, A.I.R. 1970 Ori 91.

[16] Savile v. Roberts, (1899) 1 Raym 374.

[17] Sova Rani Dutta v. Debabrata Dutta, A.I.R. 1991 Cal 186.

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