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Defining Malicious Prosecution

The definition of malicious prosecution can be found under the law of torts and the Indian penal code. Section 211 of Ipc[1] defines malicious prosecution as – anyone who understands that there is no valid judicial ground for committing a person of such crime, still falsely accuses the person of committing such crime with an intention to cause harm to that person. However it doesn’t only include arrest but also liquidation and bankruptcy proceedings, executing a process against property and search. Malicious prosecution is often considered as an abuse to the judicial system as the judicial system is established with sole purpose of ensuring that justice is served. If a person wrongly accuses someone of a crime just to cause hurt , not only is that person wasting time of the system but also tries to get an innocent person convicted, which is against the principle of the system.


If the offence for which the innocent person was accused for had a punishment that could lead to seven or more years of imprisonment or death – the punishment can go upto seven years of imprisonment with fine. In other cases it could upto 2 years of imprisonment, fine, or both.


The essentials of malicious prosecution include:

1. There needs to prosecution by the defendant

The defendant needs to initiate a prosecution against the plaintiff and that prosecution should not have any valid legal grounds for it to be deemed as malicious prosecution. Mere enquiry by a disciplinary body or just bringing the matter to a body can’t be considered as malicious prosecution.

2. There should be no reasonable and probable cause

The plaintiff needs to prove that there absolute absence of reasonable cause for such prosecution. It doesn't matter if there was reasonable and probable cause if the prosecutor didn't know about it. The withdrawal of a prosecution or the acquittal of an accused person does not imply the absence of reasonable and probable cause. If a person chooses an arrest with various accusations, some of which have probable cause and others do not, the person is liable for malicious prosecution.

3. The act was done maliciously by the defendant

Another crucial factor in a case against malicious prosecution is that the plaintiff must show that the defendant prosecuted him intentionally rather than with the sole goal of carrying out the law. Malice does not have to be a sentiment of hatred, spite, or ill will, nor does it have to be of revenge, but it may be any inappropriate motive that leads the prosecutor, such as earning a private collateral advantage. It is not mandatory for the defendant to be behaving intentionally from the beginning of the investigation. An action for malicious prosecution can be brought if the prosecutor is initially innocent but later becomes malevolent. If the defendant has positive information of the accused's innocence during the pendency of a criminal case, the prosecution is malicious from that point forward.

4. The malicious proceedings were terminated in the favour of the plaintiff

It is necessary to establish that the proceedings were terminated in the plaintiff's favour in order to recover damages for malicious prosecution. Termination in the plaintiff's favour does not imply a court decision of his innocence; rather, it implies that no judicial determination of his guilt has been made. When the proceedings are still ongoing, no action may be taken. It is a rule of law that no one may claim that a lawsuit that is still pending is unfair.

5. There was damage caused to plaintiff as a result of this prosecution

Another aspect that the plaintiff must establish in a complaint for damages for malicious prosecution is that the plaintiff experienced injury as a result of the prosecution. The plaintiff might so seek damages on the following three counts in a prosecution suit.

• Injury to the plaintiff's reputation

• Injury to the plaintiff's person

• Injury to the plaintiff's property

Remedies against Malicious prosecution

Remedies are available under three laws – Public, Private and Criminal.

Under public law

The accused person's basic rights are infringed by the malicious prosecution, and the accused can then invoke writ jurisdiction under article 32 [2]or 226[3] and seek redress from the writ courts, including compensation for the victim who suffers bodily, mental, and social injury. The entitlement to compensation under the civil law of tort does not prevent the use of a public law remedy.

Under Private law

Under the vicarious responsibility theory of private law, a person who has been wrongly prosecuted can sue the state for monetary damages. The individual who is being wrongfully prosecuted might submit both cases at the same time.

Under Criminal law

According to the Indian Penal Code and the Criminal Procedure Code, a person who has been the victim of malicious prosecution may seek that the relevant government take criminal law remedies action against the concerned public employee. The Supreme Court has ruled that an unlawful arrest cannot be undone by releasing the person who was detained. In such circumstances, the states should prosecute the officials who are accountable for the prosecution.

Origin of malicious prosecution

The tort is named from the (now-defunct) legal adage "the King pays no expenses," which said that the Crown could not be made to pay the legal fees of someone it had prosecuted, even if that person was proved innocent. "If a groundless and vexatious prosecution be launched in the

King's name, his ministers who initiated, or recommended initiating that action, ought at least to be required to pay the costs to which an innocent subject has been subjected," The London Magazine wrote in 1766.


The tort of malicious prosecution, for example, exclusively protects defenders' right to be free of frivolous litigation filed by malicious plaintiffs. Courts have historically declined to sanction the opposite — a tort of malicious defence that would safeguard plaintiffs' right to be free of frivolous defences presented by defendants — for a number of grounds centred in public interest.

Malicious Prosecution in different countries

1. United States of America

A further element of malicious prosecution is required in sixteen states in the United States. This aspect, known as the English Rule, stipulates that, in addition to meeting all of the other criteria of malicious prosecution, one must additionally show harm other than the usual consequences of being sued. This criterion applies only to equitable losses, such as lost profits, and excludes damages that are impossible to quantify under the law (e.g., damage to reputation).

2. Canada

Individuals who initiate legal action that fits the essentials for malicious prosecution may be sued, according to Canadian jurisprudence. Because the police, Crown lawyers, and the Attorney General are no longer immune from litigation, legal action may be launched against them. Despite the general evidentiary rule prohibiting adducing settlement discussions into proof at trial, the Quebec Court of Appeal held in 2014 that the contents of plea bargaining negotiations held in the context of criminal cases could be admitted as evidence in the context of a civil suit for malicious prosecution.

3. England

Defendants who were successful in fighting a malicious allegation that was civil in nature had little recourse until recently. The bench's reasoning in delivering the judgments was that a successful defence of a claim should not allow someone a right of action for claiming damages for a complaint that was malicious in nature and brought without any reasonable basis in order to subject the defendant to ordeals. If the claim filed was criminal in character, a person typically has remedies because such a suit had the potential to create calculable and graver damages to someone's goodwill and diminish his image in the eyes of members of society who believed such a person to be a person of good virtue.

4. India

In India, there are mechanisms for dealing with malicious proceedings involving only criminal cases, and a claimant normally has no recourse if the proceedings were brought under any civil legislation other than the Municipality Act. Cases of this sort are accorded a larger degree of priority in England, despite the backlog of cases and other disadvantages such as ways that are not only unlawful but also cast a calculable amount of ridicule on the court system itself. Such lawsuits go on for years, if not decades, and the claimant's experience becomes more severe as time passes. He or she is left without a remedy but must incur the costs of maintaining the litigation.

5. New Zealand

The methods for successfully discharging an innocent defendant have been codified in New Zealand. In New Zealand, the tort remedies of malicious prosecution and an award of costs are available to anybody who is prosecuted for an offence they did not commit.

Defences against Malicious Prosecution

1. There is a reason to suspect that the plaintiff committed the offence for which they are being tried.

2. The defendant's honestly believed that the plaintiff was gulity.

3.The presence of a fair or plausible justification for the plaintiff's prosecution can be used as a complete defence.

4. When the prosecution is the result of the officers of the law's judgement or action.

5. Contributory Negligence in the case of a plaintiff who is at fault. Such a situation might emerge when the plaintiff generates a malicious image as a result of deceptive conduct, which forms the ground for reasonable suspicion and prosecution for the claimed offence.

6. Judicial Immunity/Judicial Authority

7. Legislative or legal power.

8. Maintaining the state's/security. country's

9. Statutory Bar


1. Ahmedbhai V. Framji4

The Bombay High Court held that the prosecution begins not when the magistrate takes cognizance and acts in accordance with the provisions, but when he is approached and a complaint has been made maliciously with the intention of such a complaint being entertained by such magistrate. A prosecution, on the other hand, cannot be deemed to have begun till the magistrate has issued processes in response to such a complaint, as the Calcutta and Madras High Courts have both confirmed.

2. Mohamed Amin V. Jogendra Kumar Banerjee and others [5]

The appellant and the first respondent entered into an arrangement for the sale of a certain commodities to a firm that was to be founded by the first respondent. During the procedure, the first respondent formed a second respondent to carry out the purchase, and the appellant transferred half of the agreed-upon products. Later, it was revealed that the respondent had violated the terms of the agreement, and as a result, the appellant refused to honour the agreement and did not transfer the remaining products. As a result, the second respondent, acting on behalf of the other respondent, brought a complaint under sections 405, 420, and 422 of the Indian Penal Code, demanding that he be held accountable for the accusations. The magistrate convened an open court hearing in which the appellant was present and dismissed the claim, indicating that there was no trickery in this case and that the only breach was of a purely civil character. The appellant filed a suit for malicious institution of criminal proceedings against him, which the judge upheld but noted that the bench must follow an earlier decision by the High Court of Judicature of Calcutta in Golap Jann V. Bholanath khettry, which stated that it cannot be deemed as prosecution if no processes have been issued or if the complaint has been dismissed by the magistrate upon inspection of the complaint, citing the above precincts.

3. Mohammad Amin v. Jogendra Kumar Bannerjee[4]

The plaintiff had been accused of cheating by the defendant, who had filed a complaint with the magistrate. The magistrate then took the complaint under oath and conducted an investigation under section 202 of the Criminal Procedure Act. The plaintiff was given notice of the inquiry and was required to appear with his counsel, incurring fees in the process. The complaint was eventually rejected by the magistrate under section 203 of the code. The Privy Council ruled that there was a prosecution in these circumstances. The question is not whether the criminal procedures have progressed to the point where they can be regarded as a prosecution; rather, it is whether the processes have progressed to the point where the plaintiff has suffered harm. The mere fact that a complaint was presented to a magistrate who dismissed it on the grounds that no offence had been committed may not be sufficient evidence that damage was a necessary result. It will be up to the plaintiff to show that damage occurred.

[1] Indian Penal Code, 1860 § 211 Acts of Parliament, 1860 (India). [2] The Constitution Of India, 1949 § 32 Acts of Parliament, 1949 (India). [3] The Constitution Of India, 1949 § 226 Acts of Parliament, 1949 (India). [4] Ahmedbhai V. Framj, ILR 1904 28 BOM 226

[5] Mohammad Amin v. Jogendra Kumar Bannerjee, AIR 1947 PC 108.

[6] Mohamed Amin vs Jogendra Kumar Bannerji , (1947) 49 BOMLR 584

This article is written by Akanksha Mishra, of KPMSOL-NMIMS.

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