INTRODUCTION

The nominative definition of malicious prosecution is an action for damages based on this tort brought after termination of the proceedings in favor of the party seeking damages for the tort of initiating a criminal prosecution or civil suit against another party with malice and without probable cause[1]

The court defined the term ‘Malicious prosecution’ in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[2]. According to the court, it was “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.”

What are the elements of malicious prosecution?

In Glinski v. McIver[3], Viscount Simonds had held that in suit for damages for  malicious prosecution in order to succeed the plaintiff has to prove

 (1) that he was prosecuted by the defendant;

 (2) that the prosecution has terminated in his favor;

 (3) that the prosecution lacked reasonable and probable cause; and

 (4) that the prosecution was with a malicious motive. But in the current scenario, damage has also to be proved which occurred due to the tort.

Except a few civil proceedings like bankruptcy and winding up proceedings, ordinarily civil proceedings however maliciously brought cannot give rise to a cause of action.[4]

Moreover, the absence of reasonable and probable cause is one the most element, as mere acquittal of the plaintiff does not create the absence of reasonable and probable cause. Because malice can only be proved if conspiracy exists, and for proving conspiracy complete acquittal of the plaintiff becomes compulsory for initiating a proceeding under the mentioned tort.

Sometimes the plaintiff is acquitted due to the lack of evidence, in such cases even after the plaintiff is acquitted no cause of action lies for malicious prosecution even after other elements exist.

Even the mere dismissal of charges by the district magistrate does not amount to proving the innocence of the plaintiff, and so as decided in the case of Nalliappa Goundan vs Kailappa Goundan[5], the suit for malicious prosecution cannot be initiated.

Principle of nolle prose-qui-

in the case of , one judge bench of madras high court observed that to an indictment would not be a sufficient termination of the proceedings in favour of the accused to enable him to bring an action

In America, the question has been discussed and there are conflicting views on the same question whether nolle prosequi should be considered as complete acquittal of plaintiff or not.

Who is liable in the suit of malicious prosection?

A suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced. The question is who was the prosecutor. So the person who initiated the prosecution.

On whom does the onus of proof lie?

The onus of proof in the case of malicious prosecution lies on the plaintiff. The plaintiff has to prove that the defendant instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a tribunal.[6]

More challenging in proving a malicious prosecution is the showing of malice. Malice is the willful and intentional design to harm another.

What comes in the ambit of malice?

Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but on the other hand it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.[7] Spite and ill-will are sufficient but not necessary conditions of malice. Malice means the presence of some other and improper motive that is to say the legal process in question for some other than its legally appointed and appropriate purpose. Anger and revenge may be proper motives if channeled into the criminal justice system. The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice. In Allen v. Flood a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of their lordships in the House of Lords suggested that malicious prosecution was not really an exception to this rule. The settled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of malice i.e the Burden of Proof lies upon the plaintiff.[8]

The role played by the plaintiff should be an active role not a passive role during the proceedings initiated against the defendant for the case to be maintainable.

[1] Definition of malicious prosecution, https://www.merriamwebster.com/legal/malicious%20prosecution#:~:text=Legal%20Definition%20of%20malicious%20prosecution,of%20the%20party%20seeking%20damages

[2] AIR 2007 SC 976

[3] (1926) A.C 726, 742.

[4] Iyer S. Ramaswami, The Law of Torts 256 (6th ed. 1965).

[5] (1901) ILR 24 Mad 59

[6] A comparative analysis of malicious prosecution, https://blog.ipleaders.in/malicious-prosecution-a-comparative-analysis-of-the-position-in-england-and-india/amp/

[7] Malicious prosecution, uditi, http://www.legalserviceindia.com/legal/article-2434-malicious-prosecution.html.

[8] Malicious prosecution, http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html