Malicious Prosecution is defined as a judicial proceeding instituted by one person against the another, from wrongful or improper motive, without any reasonable and probable cause to justify it. Malicious Prosecution consists in instituting unsuccessful criminal proceedings maliciously without reasonable and probable cause. When such prosecution causes actual damage to the party prosecuted, it's a tort for which he can bring an action.

Difference between Malicious Prosecution & Malicious Use of Process (or Malicious Abuse of process)

Malicious Prosecution means process to be issued maliciously, whereas, Malicious use of Process means using a legal process for some purpose other than than it was issued by the law. When malicious prosecution through criminal or civil proceedings cause actual damage to the party prosecuted, or when the proceeding has ended in the favor of the defendant, he or she may sue for tort damages, known as malicious use of prosecution.

Essentials in a suit of Malicious Prosecution:

1. Prosecution by the defendant
2. Absence of reasonable and probable cause
3. Malice
4. Termination of the proceeding in the favor of the plaintiff
5. Damage

1. Prosecution by the Defendant

   Two essential ingredients of prosecution by the defendant are:
   
   • Proceedings before the police is no Prosecution:
     The same was instituted by the defendant.
     Case law: Nagendra Nath Ray V. Basanta Das Bairagya
     A theft had been committed in the defendant's house. He called the police and told that he had a doubt on the plaintiff. Police arrested the plaintiff, but he was discharged by the magistrate due to lack of evidences in police reports. Defendant then sued Plaintiff for Malicious Prosecution, but it was rejected as mere police proceedings are not prosecution .Damage has to be proved.
     
     Case Law: Khagendra Nath V. Jacob Chandra:
     Merely bringing a matter before an executive authority doesn't amount to prosecution. Therefore there is no prosecution when a magistrate issues only a notice and not summon to the accused on receiving a complaint and subsequently dismisses it after hearing the both sides.
      
   • Proceedings before a Quasi-Judicial Authority:
     Case law: Kapoor Chand V. Jagdish Chand
     Plaintiff sued the defendant falsely that defendant has obtained a false degree of Hakim from Board of Ayurvedic & Unani System of Medicines. Plaintiff also stated that defendant is illiterate. On further investigation, it was found that plaintiff was prosecuting the defendant maliciously. Since the Malicious Prosecution is there, case was presented before quasi judicial authorities.
     
     Prosecution should be instituted by the defendant.
     A prosecutor is a person who is actively instrumental in putting a law in force for prosecuting the other person.
     A person can't be deemed to be a prosecutor merely because he gave some information or evidences about some offence to police. Even though they were false to the police, can't give cause of action to the plaintiff in a suit for Malicious Prosecution. If defendant is not proved to be real prosecutor by establishing that he was taking active part in prosecution, and that he was primarily and directly responsible for the prosecution.
     
     
     Case Law: Dattatraya Pandurang Datar V. Hari Keshav
     Defendant lodged a FIR to police regarding theft at his shop, naming the plaintiff ( servant ) being suspect. After investigation, it was cleared that plaintiff has nothing to do with the theft. Plaintiff sued defendant for malicious prosecution, but the plea was rejected as the essential element, Plaintiff must be prosecuted by the defendant could not be established. The defendant has done nothing more than giving information to the police.
     
     Case Law: Gaya Prasad V. Bhagat Singh
     Privicy council stated that the conduct of the complainant, before and after the complaint has to be seen to decide whether he is really a prosecutor or not. If information given by him is false and he know that, and done just to misguide the police, he will be considered as prosecutor.
      

2. Absence of reasonable and probable cause

   Plaintiff also need to prove that defendant prosecuted him without any reasonable grounds and probable cause. Mere honest belief is not enough, it is also necessary that defendant must act as a reasonable and prudent man. There is a reasonable and probable cause when the defendant has sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed.
   
   Case Law: T.S. Bhatta V. A.K. Bhatta
   Defendant filed a complaint against plaintiff. The defendant knew that the charge was false and was acting with reasonable and just cause. It was held that the defendant was real prosecutor and was liable for malicious prosecution.
   
   Case Law: State of Tripura V. hardhan Chowdhury
   Plaintiff was reputed timber merchant of the area. Defendant sued him under two criminal cases for cutting trees from protected or reserved area with a malafide intention. Court found it a malicious prosecution and awarded Rs. 25000 as compensation to the plaintiff.
   
   Case Law: Hetram V. Madan Gopal ( 2007 )
   Defendant made false allegation on plaintiff for setting their house on fire, no remote evidence was found. Compensation of Rs. 55,000 was awarded to the plaintiff due to malicious prosecution.
    

3. Malice

   Malice in malicious prosecution means having an ill-motive in prosecuting someone. Usually that wrongful intention or ill-motive comes out of the revenge and anger. Here also, the burden of proof is on plaintiff. It means that plaintiff needs to prove that defendant acted maliciously in prosecuting him. In other words, it means, using the legal process for some other purpose, rather than the purpose it is used for, due to some improper and wrongful motive.
   
   Case Law: Antarjami Sharma V. Padma Bewa
   Servant prosecuted the master maliciously for outraging her modesty. Even other servants had given the false statement and false evidences. Court held that along with plaintiff, the other persons who gave false statement, knowing that the facts were not true, will also be liable for compensating for the damage.
   
   Case Law: Bhogi Lal V. Saroj Behan
   A agreed to buy house from B from Rs. 15,000 and even paid the advance payment of Rs. 2,000. Later on, he discovered that the house is already mortgaged and B even didn't disclose this fact. A believing that B is deceiving him sued him for cheating under section 420 and B was discharged. B sued A for malicious prosecution.
   
   Since, A wasn't acting maliciously, he wasn't made liable to pay the damages and no malicious prosecution was there. Acquital of a plaintiff is no evidence of malicious prosecution. Prosecution doesn't becomes malice, if it is inspired by anger.
    

4. Termination of proceedings in the favor of the plaintiff

   The plaintiff must prove that prosecution ended in his favor. He can only sue for malicious prosecution when he is acquitted or by the dismissal of complaint. If the plaintiff is convicted, he has no right to sue for malicious prosecution, but can appeal against the conviction. The plaintiff can only sue the defendant for malicious prosecution only when he is acquitted.
   
   Case Law: Ram Lal V. Mahendra Singh
   Son of Ram Lal committed suicide. Ram Lal filed a criminal suit against the defendant in which the proceeding went over 3 years. Even the defendant was kept in special custody for 3 months, and then acquitted. Then, the defendant filed a suit for malicious prosecution. Lower court decreed the suit in the favor of the defendant. But, Ram Lal appealed against the decision. Though he died during the proceeding, his legal representatives continued the proceeding in which, Rajasthan High Court held that the plaintiff could not prove malicious prosecution as there was malafide intention.
    

5. Damage has to be proved

   It has to be proved that due to the malicious prosecution, plaintiff has suffered damage. Even though, the proceeding terminates in the favor of the plaintiff, still he may suffer damage as a result of that malicious prosecution.
   Therefore, plaintiff can claim damages on grounds of:
   
   1. Damage to plaintiff's reputation.
   2. Damage to plaintiff's property.
   3. Damage to plaintiff's person.
   
   Also, deprivation of his liberty, mental stress, inconvenience, status and position, monetary loss and fees of legal action are taken into consideration while deciding damages.
   
   Case Law: Sova Rani Dutta V. Debabrata Dutta
   Defendant filed a false FIR against the plaintiff and his sister alleging theft of her earring. Since, they know that information provided by them isn't correct, malicious prosecution is there. Plaintiff claimed damages. Rs. 5,000 were awarded as compensation for the mental agony and pain suffered by him. Also, Rs. 1,500 were awarded to the plaintiff as special damages.

Written By: Shubham Parashar