The history of malicious prosecution may be traced back to Edwards I’s reign, when the writ of conspiracy was in use. The writ of maintenance superseded it in the 16th century, and it fell into disuse. An action on the case, which first emerged during Elizabeth I’s reign and became known as action for Malicious Prosecution, filled the void. In the case of Saville v. Roberts in 1698, the tort was finally established.

Malicious prosecution is described as a malicious institution brought against a person who has failed in bankruptcy, liquidation, or criminal procedures for no reason. Malicious prosecution is also known as ‘abuse of process,’ which is a legal term that refers to a misuse of the legal system for personal gain.

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Court defined the term “malicious prosecution” in the following words:

“A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution.”

In the case of Saville v. Robert, Halt CJ stated that “there are three kinds of damages caused due to malicious prosecution which are to:

• A person’s fame or character in simple terms means their reputation in the eyes of the members of the society. When a person is maliciously prosecuted, their reputation in the eyes of the other members of society is affected and harmed because people begin to view them as a person who has committed some wrong because of which they are being prosecuted.

In State of Punjab vs Des Raj, the plaintiff was doing business in food grains and was having a very good reputation. Then a food inspector was having ill-will against the plaintiff as he did not supply him one bag of rice free of cost. And due to that grudge, he falsely implicated the plaintiff. The prosecution was launched against the plaintiff on the basis of a False report made by the food inspector. The court subsequently acquitted the plaintiff on the grounds that the allegation was found to be false. After the acquittal the plaintiff filed a suit for recovery of damages for his malicious prosecution. The court held that the plaintiff was entitled to damages as the prosecution launched against the plaintiff was based without proper investigation and was totally malicious and the reputation of the plaintiff had been affected by the prosecution as it was made by a food inspector.

In the case of Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil the plaintiff was a sarpanch of a village whereas defendant number 1 was working as a Gram Sewak under the Zila Parishad and defendant number 2 was a teacher in a school under the Zila Parishad. The plaintiff had made various complaints about the two regarding their bad behaviour, misconduct, dereliction of duty, etc. In order to teach him a lesson and take revenge on him, both plotted against him and defendant number 1 filed a FIR claiming that the plaintiff had assaulted him. A criminal proceeding started and he was arrested. Later he was acquitted on the grounds that the complaint was made with malicious intent. The plaintiff initiated a case of malicious prosecution wherein he claimed that being a politician and sarpanch, he had suffered a loss of prestige and reputation and also his status was marred.

• The second sort of damages, which would support such an action, are such as are done to   the person; as where a man is put in danger to lose his life, or limb, or liberty, which has been always allowed a good foundation of such an action

Such as in the case of Grainger v. Hill, where the defendant was held liable for getting plaintiff arrested apparently for non-payment of debt. It was found out that he did it with the malicious intention to coerce him illegally to surrender the register of a vessel without which vessel could not have been taken to sea. In this case the plaintiff was offered damages for the loss of liberty which occurred when he was arrested because of the malicious prosecution.

Even in the case of Roy vs Prior, where the defendant claimed with his own evidence that plaintiff was avoiding service of a summons previously issued by the Court; based on this claim, he obtained a warrant for plaintiff’s arrest in order to compel his appearance as a witness in a criminal case; plaintiff was arrested, held in custody, and later released. It was also held that the plaintiff could file a suit for damages as he had faced a loss of liberty during the time for which he was arrested and had faced a loss of liberty.

• The third sort of damages, which will support such an action, is damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused, which is the present charge. That a man in such case is put to expenses is without doubt, which is an injury to his property

In the case of Het Ram v. Madan Gupta, the plaintiff was maliciously charged by defendant for setting fire to his house. Plaintiff was acquitted and rewarded Rs. 55,000 for mental agony, loss of business and litigation expenses which were the financial interests of the plaintiff in the case

Going back to an earlier mentioned case. In State of Punjab vs Des Raj, the plaintiff was doing business in food grains and was having a very good reputation. Then a food inspector was having ill-will against the plaintiff as he did not supply him one bag of rice free of cost. And due to that grudge, he falsely implicated the plaintiff. The prosecution was launched against the plaintiff on the basis of a False report made by the food inspector. The court subsequently acquitted the plaintiff on the grounds that the allegation was found to be false. After the acquittal the plaintiff filed a suit for recovery of damages for his malicious prosecution. The court held that the plaintiff was entitled to damages because the false prosecution affected his business since consumers generally believe the word of a food inspector such as the defendant when looking to buy a product and hence this loss of business constituted a financial interest of the plaintiff for which he could file a suit for damages.

It is clear that Holt, C.J. considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution. The tort of malicious prosecution was evolved from the recognised need to protect a person from facing the above-mentioned damages caused due to malicious prosecution and it has now been established in such a manner as to protect these interests of the person.

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