This Article is written by Maria Sharwari from Surendranath Law College, Kolkata

Introduction

Prosecutors and lawyers don’t usually pursue criminal and civil cases that lack sufficient evidence. Occasionally, however, criminal charges or civil lawsuits are maliciously filed. This is done to intimidate, harass, defame, or otherwise injure the other party. In response, the injured party can file a malicious prosecution case in a civil legal proceeding.

Malicious prosecution provides an essential check on potential abuses. This is because prosecutors have discretion over which cases are pursued. Similarly, private citizens are free to file lawsuits against anyone.^[1]

What is Malicious Prosecution?

Malicious Prosecution is generally a prosecution against a person without any probable cause that causes damage. Malicious Prosecution is a kind of tort and the person or the victim has all the powers to even sue the police authorities for the damage they have done.

For example, A tells B a police officer to arrest D and B (police officer) thinks C is D and arrest and A tells B to arrest him even though he knows that C is not D. Then here A could be held liable for malicious prosecution by the court of law.

Liability which arises in malicious prosecution has always had to go between the two principles- one is the freedom to take actions which means freedom to set law in motion and to bring criminals into justice and two is the necessity to check false accusation against innocent people.^[2]

Essential Elements of a Malicious Prosecution

To prove malicious prosecution in a suit, the plaintiff must prove-

Prosecution by the defendant

The first thing that the plaintiff is needed to prove is that the prosecution which was started was done by the defendant himself to file a suit for damages against the defendant. The word “prosecution” carries a wider sense than a trial and includes criminal proceedings by way of appeal, or revision.^[3]

It must be noted that any departmental enquiries against the plaintiff conducted by disciplinary authorities will not be considered prosecution. Prosecution refers to judicial proceedings through appeals.^[4]

Absence of reasonable and probable cause

The plaintiff’s responsibility is to prove to the court that he was prosecuted without reasonable cause by the defendants with malicious intent.

Even if the reasonable, likely and probable motive exists, it is of no value if the prosecutor prosecutes the case in ignorance. It must be noted that the accused getting acquitted or the case getting dismissed should not be proof of the absence of reasonable and probable cause.

Suppose a person initiates a proceeding with multiple charges, where the probable cause may be present for some of the charges and absent for some. In such cases, the probable motive isn’t always present, and hence his legal responsibility for malicious prosecution is complete.

A person who files a suit for malicious prosecution has to prove that the defendant who has filed the case has done it without any likely cause.

The malicious act of the defendant

Malice isn’t always only a feeling of ill will or a spirit of vengeance in the direction of the plaintiff; however, it may be to behave with any mistaken cause which motivates the prosecutor to benefit from the man or woman.

It isn’t always crucial that the defendant appear maliciously proper from the prosecution launched. If the prosecutor is initially harmless but becomes malicious, a motion for malicious prosecution can lie.

If the pendency of crook prosecution, the defendant receives fantastic know-how of the accused’s innocence, the continuance of the trial is malicious from that moment onwards.

Malice may be inferred upon evidence of the absence of sincere perception inside the accusation and consequent need of reasonable and probable cause for instituting the prosecution complaint.

Proceedings are terminated in favour of the plaintiff

Termination here refers to the non-existence of judicial determination of the defendant’s guilt.

Malice is no longer defined just as a feeling of enmity, spite, or a spirit of vengeance against the plaintiff. Malice may also be any wrongful motivation that may help the prosecutor gain personal collateral.

No action may be added while the prosecution or the court cases are pending. It is a rule of law that nobody will be allowed to allege a still-pending suit miles unjust.

Damage caused to the plaintiff as a result of prosecution:

The plaintiff can 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.

Adversarial civil proceeding:

Essentials of malicious civil proceedings are

• Malice must be proved.
• The plaintiff must prove that such civil proceedings have interrupted his liberty and have affected his reputation.^[5]

Types of Malicious Proceedings

Malicious prosecution in a Criminal Proceedings

A criminal charge involving scandal for reputation or the possible loss of life and liberty to the party charged does necessarily and naturally involve damage and in such a case damage to reputation will be presumed.

Thus we see that in a civil suit there being no damage to defendant’s fame, person or property he cannot bring another suit for damage. Another reason for this is if an action for malicious prosecution were allowed in respect of a civil suit there will be a circle of actions and the litigation will never close.

Suppose A sues B in a civil court then the suit is decided in favour of B. Then B will file a civil suit for the malicious institution of the suit. If the suit fails, again A will file a suit against, so the chain would never come to an end and this is the reason why civil suit for damages are not allowed.^[6]

Malicious prosecution in a Civil Proceedings

Unlike malicious criminal prosecution, no action can be brought, as a general rule, in the case of civil proceedings even though the same are malicious and have been brought without any reasonable cause. Since an unsuccessful plaintiff in any civil proceedings has generally to bear the cost of litigation, hat is considered to be sufficient deterrent factor which may discourage false civil proceedings.

In exceptional cases, however, where the cost of litigation may not adequately compensate the defendant, he can sue to recover damages for the loss arising out of such civil proceedings. The examples of such proceedings are-insolvency proceedings against a businessman, or winding up proceedings against a trading company, or the proceedings which result in arrest or execution against the defendant’s property, or attachment of his property.^[7]

An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. The reason stated to be is that “such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing.

The defendant’s reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party.”

Further, section 35A of the Code of Civil Procedure^[8] provides for compensatory costs in respect of false or vexatious claims. But a suit lies, as already seen, for malicious prosecution of bankruptcy or liquidation proceedings which are civil proceedings and which affect the credit and reputation of the party against whom they are taken.^[9]

Remedies for Malicious Prosecution

In an action for malicious prosecution, damages can be claimed under three heads:

(1) damage to reputation;

(2) damage to person and

(3) damage to property including any legitimate expenses incurred by the plaintiff for defending himself in the criminal case.

Where both the plaintiff and the defendant are actuated by malicious motives, nominal damages will be awarded. Malicious prosecution is one of the torts in which aggravated damages are permissible by taking into consideration motives and conduct of defendant and injury to the plaintiff.

Where reckless allegations were made against the character of a professional lawyer in a criminal complaint filed against him and the prosecution ended in his favour and a suit for malicious prosecution was filed, it was held that the court was entitled to take into consideration aggravation of damages.

But exemplary damages as distinguished from aggravated damages can be allowed only when the prosecution was by the State or a public servant and the action in prosecuting the plaintiff was oppressive, arbitrary or unconstitutional; or when the defendant’s conduct in prosecuting the plaintiff was calculated to make a profit for himself.

Relevant Case Laws

1. 1. The Gauhati High Court, in Manik Das v. Dilip Biswas,³ explained that in a damage suit for malicious prosecution, it is important to establish that the plaintiff was unjustly made to suffer criminal charges by the defendants and that the proceeding terminated in favour of the plaintiff. Furthermore, absence of reasonable and probable cause of the criminal prosecution must also to be established and it must be shown that the defendants instituted the prosecution maliciously, for which the plaintiff suffered damage.^[10]
   2. In Wyatt v. White, the defendant, a miller, noticed on the plaintiff’s whart a number of his sacks, some new which bore his mark and others old from which the mark had been cut off. Believing the sacks to be his own, the defendant charged the plaintiff for theft before a magistrate. The plaintiff was acquitted and then he sued the defendant for malicious prosecution. It was held that since some of the sacks observed by the defendant were new, the defendant had reasonable and probable cause and was, therefore, not liable.^[11]
   3. In C.B. Aggarwal v. P. Krishna Kapoor, it was held that when legal process is abused, it results in a tort. It was observed: It (The legal process) is abused when it is diverted from its true course so as to serve extortion or oppression, or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort. Thus, initiation of proceedings must be abused and has to be for a collateral purpose for which the law does not provide a relief for such institution.^[12]

The essentials required to be proved in such an action were stated as under in Genu Ganapati v. Bhalchand Jivraj: In order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is required to prove a number of ingredients:

(1) In the first place, malice must be proved and

(2) Secondly, the plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.

(3) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation.

For example, if the civil proceedings have resulted in the arrest of the plaintiff or if they are in the nature of bankruptcy proceedings or winding up proceedings they may adversely affect the plaintiff’s reputation. The plaintiff must establish that he has suffered damage.

In the above stated case, A filed a suit against B alleging that B had maliciously sued A with the improper motive of preventing him from carrying out his contract with another person, C. No malice, on the part of B, could b proved by A.

It was, on the other hand, found that B had originally sued C in furtherance of his own contractual rights against C, and it is at a later stage that A was also joined as a defendant along with C because that was necessary to determine the contractual right of B. B was held not liable for instituting malicious civil proceedings against A.^[13]

In the case of Wiffen vs Baily it was held by the court that there was no loss of reputation in respect of a complaint under the Public Health Act for non-compliance with notice to remove a nuisance on one’s own premises.

Again, if the offence for which the plaintiff was charged was only punishable with fine, and the damage to the person cannot be claimed. So, in case of malicious prosecution, only punitive damages are given and these damages are to given to penalize the plaintiff for bringing the case to the court.^[14]

Conclusion

Multiple factors point to malicious prosecution, such as the absence of a reasonable motive prosecution by the defendant against whom allegations of malicious intent are filed.

In several cases, complaints are terminated, which may favour the plaintiff inside the court. The plaintiff is suffering or undertaking damages because of the prosecution. These are vital to the plaintiff to show in a suit for damages for malicious prosecution to be fulfilled. 

Even though mere carelessness isn’t in keeping with the evidence of malice, unreasonable conduct like haste, recklessness or failure to make enquiries would be some evidence. Malicious prosecution is the hostile organisation of unsuccessful crooks or bankruptcy or liquidation court cases in opposition to another without affordable or possible purpose.

However, based on the records and occasions, the courtroom decides whether the suit was filed with malicious intent or not. ^[15]

1. https://www.findlaw.com/injury↑
2. https://blog.ipleaders.in/tort-malicious ↑
3. Supra note 2 ↑
4. https://unacademy.com/content↑
5. Supra note 4 ↑
6. Supra note 2 ↑
7. Dr R.K.Bangia, Law of Torts,p.219 (Allahabad Law Agency, Haryana, Twenty-sixth Ed, 2021) ↑
8. The Civil Procedure Code, 1908 (Act No. 5 of 1908) ↑
9. Ratanlal and Dhirajlal, The Law of Torts,p.373 ↑
10. Dr R.K.Bangia, Law of Torts,p.199 (Allahabad Law Agency, Haryana, Twenty-sixth Ed, 2021) ↑
11. Id, p.206,207 ↑
12. Id, p.219 ↑
13. Id, p. 219,220. ↑
14. Supra note 2 ↑
15. Supra note 4 ↑