Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.

Elements of malicious prosecution

• Prosecution by the defendant – The first essential element which the plaintiff is required to prove in a suit for damages for malicious prosecution is that he (plaintiff) was prosecuted by the defendant. It is significant to note that departmental enquiry by disciplinary authority cannot be called prosecution.

• Termination of proceedings in the favour of the plaintiff – The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending. The termination may be by an acquittal on the merits and a finding of his innocence or by a dismissal of the complaint for technical defects or for non-prosecution. If however his is convicted he has no right to sue and will not be allowed to show that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution.

• Absence of reasonable and probable cause – In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the defendant prosecuted him without reasonable and probable cause. The question relating to want of reasonable and probable cause in a suit for malicious prosecution should be decided on all facts before the Court. The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the accused does not create any presumption of the absence of reasonable and probable cause. If a man prefers an indictment containing several charges, whereof for some there is, and for others there is not, probable cause, his liability for malicious prosecution is complete.

• Defendant acted maliciously – In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is required to prove that the defendant acted maliciously in prosecuting him and not with a mere intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage. It is not necessary that the defendant should be acting maliciously right from the moment the prosecution was launched. If the prosecutor is innocent in the beginning but becomes malicious subsequently, an action for malicious prosecution can lie.  If during the pendency of criminal prosecution, the defendant gets positive knowledge of the innocence of the accused, from that moment onwards the continuance of the prosecution is malicious.

• Plaintiff suffered damage as a result of the prosecution – In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is required to prove that the plaintiff suffered damage as a result of the prosecution. In a claim for prosecution, the plaintiff can thus claim damages on the following three counts:
  • Damage to the plaintiff’s reputation,
  • Damage to the plaintiff’s person,
  • Damage to the plaintiff’s property.

In the Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd., the officer of the respondent corporatin found certain articles missing while preparing inventory and checking up with the stock register. The plaintiff was prosecuted under sec. 403 of the I.P.C. but was given the benefit of doubt and hence acquitted. The plaintiff brought an action for malicious prosecution. The plaintiff could not prove that he had been harassed by the officers. There was held to be reasonable and probable case for prosecution of the plaintiff and the fact that plaintiff was not harassed indicated that there was no malice and hence the charge was not held.

Aishwarya Says:

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