Malicious prosecution served as one main basis of the writ of the Indian Businessman Ripudaman Singh Malik that he filed against the Canadian Prosecution for having wrongfully convicted him of first degree murder of the passengers on an Air-India flight during the 1982 bombing. Malik spent four years in prison before being acquitted of all charges and has lost millions of dollars on his trial as well as his good reputation. His conviction was one that has failed to meet the standard of proof beyond reasonable doubt according to the Justice who acquitted him. What is then malicious prosecution and is the remedy provided by the law sufficient to the serious damages that can be caused by malicious prosecution especially when it can lead to criminal conviction and thus the destruction of someone’s reputation, not to mention his un-necessitated suffering?
In West Bengal State Electricity vs Dilip Kumar Ray 2006 the Supreme Court of India has referred to Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar in order to lay down the legal definition of malicious prosecution. The element of malice in legal terms was understood as having the actual intent of harming someone, or intending an act with knowledge that it can negatively affect someone, while having no excuse or reasonable justification to commit such an act. It is not necessarily an ill-will that we are to look for when identifying malice in law but simply the deliberate intention of committing a legally wrongful act. Malicious prosecution is then the use of the legal process with intention to cause harm or damage to someone which is not a purpose of the justice system and it therefore amounts to an abuse of it. In other words, malicious prosecution is the misuse of the justice system to achieve wrongful and unlawful intentions, that of prosecuting an innocent because of enmity or vengeful feelings or whatever the wrongful motive.
A false accusation or proceedings initiated with no reasonable cause and with malicious intent are the main constituents of malicious prosecution. An acquittal of a criminal charge can be evidence of proceedings without reasonable cause, however; it does not necessarily imply malicious prosecution. It simply lays a presumption of malicious prosecution but such a presumption is rebuttable following Kapil Kumar Sharma vs . Ashok Kanodia on 1 November, 2021 that is because there can be more than one reason for an acquittal which does not have to be the result of malicious prosecution and can rather be the result of a failed prosecution. To find malicious prosecution it is necessary to prove that the proceedings were initiated without reasonable cause, with malice and having ultimately turned in favour of the plaintiff. One element that can help find malice is for the defendant to reveal his actual reason for which the prosecution was initiated against the plaintiff. That way it can be determined whether there was no reasonable cause and whether there was malice. However, the burden of proof falls on the plaintiff.
Having defined malicious prosecution and the way to prove it, it is now necessary to review the available remedies for it and to assess whether they do effectively help not only in the taking account of such wrong but also in its prevention.
The Law Commission of India has in its report No. 277 “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”, August 2018, shown that there are different types of remedies to a miscarriage of justice which occurs in the case of wrongful or malicious prosecution. The first one is classified as a constitutional remedy and it is the public law remedy. When there is a malicious prosecution in a criminal case with ensuing conviction and incarceration, there is a violation of one’s right to protection against arbitrary arrest and illegal detention under Article 22 of the Indian Constitution. When there is breach of such a right or the right to life and liberty, the Court can exercise its jurisdiction to order monetary compensation from the Sovereign State that is to be held accountable for its employees’ wrong under vicarious liability as decided in SAHELI, A Women's Resources center & Ors. v. Commissioner of Police Delhi & Ors 1990. Monetary compensation was held by the Court in Rudal Sah v. State of Bihar 1983 to be the best option for the prevention of the breach of fundamental constitutional rights especially where the plaintiff has suffered grave damage such as in this case having lost 14 years of his life in prison before being acquitted.
However, it is arguable whether monetary compensation is sufficient in itself to exercise a preventive force to malicious prosecution. It should be accompanied by some strict measures in the selection of prosecutors who must be chosen with the requisite sense of responsibility to carry on the purposes of justice rather than misuse such a process for unlawful ends. Those measures should be of a legally fixed nature in that they have to exist within a legally binding framework to ensure the Prosecutor is impartial and fair and the rules of evidence law and proper investigation are followed. In India, it is the magistrate that supervises the police’s investigative work and that ultimately charges the accused. The reality of the appointment of prosecutors is that they are appointed according to their political affiliation and when this happens, abuse of such an office for political purposes is a growing risk as evident in Sunil Kumar Pal v. Phota Sheikh 1984 where the subversion of the criminal legal system was such that the Supreme Court stated that “no citizen should go away with the feeling that he could not get justice from the court because the other side was socially, economically or politically more powerful and could manipulate the legal process”. K. N. Chandrasekharan Pillai suggested that in order for the prosecution service to become more transparent and fair, it needs to function independently from the executive and from the court while serving the rule of law and the aims of justice. From such a viewpoint, the reality of malicious prosecution would be minimized and the proposed reform of the prosecuting system would be a more effective deterrence to malicious prosecution than merely the court’s grant of monetary compensation.
Another existing remedy to malicious prosecution, and perhaps stronger one than monetary compensation in its deterring effect, is that provided by criminal law for offences committed by public servants in the Indian Penal Code. For example, section 166 makes it a criminal act to intentionally depart from the directions provided by the law to the public function and service of the public servant, this with the aim of injuring someone. However, the maximum punishment that can be imposed is of one year and this is not sufficient to remedy wrongful convictions where the plaintiff has spent a much longer time in prison. Section 220 further criminalises illegal, in the form of a corrupt or malicious, detention of innocent persons by officers who have the legal authority to do so.
It can thus be seen that as far as the remedies provided by law to malicious prosecution are concerned, pecuniary and penal remedies are available. However, it has been argued in this article that punishing malicious prosecution or seeking to remedy it monetarily are not enough to prevent the serious consequences and damages that can ensue from a wrongful conviction for example or from substantial financial losses in a civil wrong. For an effective prevention of malicious prosecution, it has been observed that the entire prosecution system has to be reviewed and reformed.
 "Acquitted Air-India suspect files suit: Malik says he lost reputation, savings." Globe & Mail [Toronto, Canada], 21 Mar. 2007, p. A3. Gale Academic OneFile, link.gale.com/apps/doc/A167780706/AONE?u=ull_ttda&sid=bookmark-AONE&xid=1eb6a816. Accessed 7 Apr. 2022.  Idem  Kapil Kumar Sharma vs . Ashok Kanodia on 1 November, 2021  K. N. Chandrasekharan Pillai, Journal of the Indian Law Institute , OCTOBER-DECEMBER 2008, Vol. 50, No. 4 (OCTOBER-DECEMBER 2008), pp. 629-639  Idem
This article is written by Zina Balkis Abdelkarim, of University of London Worldwide.