This article is written by Anshika Gubrele, second-year BA LLB student at Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the concept of Malicious Prosecution and its position in England and India. The author has also laid emphasis on the laws related to Malicious Prosecution in both the countries and discussed the important case laws related to it.


With the continuous evolution of various legal systems across the globe, the noxious and malicious elements have also materialized themselves strongly and have continued. Their aim of launching attacks to weaken the legal machinery, by embarking upon them.

The tort of malicious prosecution is one such development which has spread its roots into the legal systems and has at times made it look like it is not the legal system which is good enough to deal with issues of such magnitude. Even though the adversarial procedure of the court hearing demands that facts be produced along with justification which in the legal sense would be deemed as enough for supporting the cause. Even if after scrutiny of such facts the bench or the magistrate dismisses the claim, measurable damage has already been done.

As it is an established fact that society punishes an individual more than the law, it is more evidently seen in issues of this nature where the victim of such suit (defendant in original suit) faces stigmatization in every sphere. Though over the years the courts of UK have come up with remedies and various provisions, courts in India are still busy dealing with a backlog of such cases, because of which any concrete, as well as an effective way, has failed to materialise itself in the legal system.

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What do you mean by the term” Malicious Prosecution”?

The term ‘Malice’ in common parlance means ill-will against a person. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “ a proceeding in a court of law charging a person with a crime”.

‘Malicious Prosecution’ means” a prosecution on a charge of crime, which is willful, wanton or reckless or against the prosecutor’s sense of duty and right.”

Concept of Malicious Prosecution

Settling tools or as to bring someone down to the negotiation table to obtain pecuniary benefits. The prominent and most common of all the remedies for such a victim are cross suits claiming damages for initiation of a malicious suit. Such suits have become prominent and to name a few can be seen in the recognition of the tort of malicious prosecution has been done to act as a safeguard for individuals, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. Such suits have commonly come into play and are mostly seen as score cases of medical malpractice, suits under criminal offences, punishment for which is penal in nature and a few suits under various other acts.

A defendant (plaintiff in the original suit) must prove reasonability in filing such suits and, must provide such facts which would have led any person in his place acting rationally to come to the same conclusion as he came upon when he filed the suit. A person while bringing forward a suit claiming damages for suit filed maliciously must prove that he was acquitted by a competent court and the filing of such suit was done by the original plaintiff (defendant in this case) without any reasonable and probable cause.

While the question of probable cause arises, a defendant cannot claim that he initiated prosecution under the order of a competent body which itself was moved by the intel provided by such individual, for the cause of justice would be defeated and any person claiming so could evade the law and simply walk away.  However, a person acting upon the information provided to him by any competitive person, if acts on such advice and files a suit, he would not be held liable for, the element of malice was absent and anyone in his shoes would have acted similarly upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, would not be a good cause of action as suspicion and claim must be differentiated the former being based on facts which would have led any person to believe in possibility and not outright presence of guilt. Determination of the fact, who the prosecutor is, essential while bringing a cross suit claiming damages for such prosecution. A prosecutor is that person who set the law in motion, it can be an ordinary person, an individual associated with the administration or for instance police, or even a magistrate but, the rationale isn’t who proceeded but who was it that instigated or initiated the claim. A judicial authority can only be said to be a prosecutor when it can be proved without any doubt that he had knowledge that the claims were false or he had an element of disbelief in relation to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts which he had reason to believe are not substantially true and based on those facts the magistrate ordered a probe and the defendant in that suit was prosecuted. A point must be clearly understood that the mere filing of a complaint viciously would not usually amount to the tort of malicious prosecution if, the magistrate dismisses the complaint as disclosing that to be no offence, this wouldn’t be a prosecution but a failed attempt to set the criminal law into motion.
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As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a prosecution when the Magistrate takes cognizance of the complaint which then is followed by an examination of such complaint by means of inquiry in open court under sec 202 of CrPC the prosecution is deemed to have commenced. Various courts across the globe have had their views of what can be called as a prosecution which has not been solved but further added up to the pre-existing ambiguities regarding the same.

The Bombay High Court in Ahmedbhai V. Framji observed the commencement of prosecution shall be deemed to have begun not when the magistrate takes cognizance and acts as per the provisions but, when he is approached, and a complaint has been made maliciously with a view of such a complaint being entertained by such magistrate. However, a prosecution cannot be said to have been initiated unless there have been processes issued by the magistrate with respect to such a complaint, which too has been affirmed by the Calcutta and the Madras High Court.

For a successful claim for damages of malicious prosecution, it has been held by the courts that the original prosecution must have been for an offence which is criminal in nature and which is punishable by imprisonment and fine or both. This has been a drawback of the legal system of India, which has failed to acknowledge the fact that multiple times there is enough damage caused to the individual’s repute even though the prosecution is for a civil wrong, but the courts in India have ruled out that possibility in various instances. This development has been seen in England that irrespective of the nature of the complaint, whether it is one of criminal or civil nature, a suit for malicious prosecution will be maintainable.

However, for a suit which is demanding damages for malicious prosecution for a civil complaint, the plaintiff would have to show special damages which were incurred by him in maintenance of such suit against him. This has again been held in a recent English case that it would not be just a limitation of law for nor being able to maintain such suits claiming damages for a suit filed maliciously under any civil act, but it would be severely unjust on behalf of the victim of such suit.

Time and again the needs have been voiced for the recognition of claims for a suit filed maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps to address such problems being faced by the public at large. England has been updating its laws as per the time demands but, the laws in India are nowhere near what could be called a competent law to deal with such claim.

What are the essentials required to constitute Malicious Prosecution?

In an action for malicious prosecution, the plaintiff has to prove that –

  1. He was prosecuted by the defendant.
  2. The defendant acted without reasonable and probable cause.
  3. The defendant was actuated with malice
  4. He (the plaintiff) was acquitted
  5. He (the plaintiff) suffered damage.
  • Prosecution– The plaintiff has to prove that the defendant instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a tribunal.
  • Without reasonable and probable cause– The plaintiff has to prove that the defendant prosecuted him without reasonable and probable cause.
  • Malice– The plaintiff has to prove that there was malicious intent on the part of the defendant in instituting criminal proceedings against him.
  • Acquittal or Termination of criminal proceedings– The plaintiff has to prove that the criminal proceedings against him were terminated and he was acquitted. An action for malicious prosecution cannot be maintained if the plaintiff is convicted.
  • Damage– The plaintiff has to prove that he suffered loss or damage or injury as a consequence of the prosecution complained of (by the defendant). The damage may be with reference to the plaintiff’s person or property or reputation.

Illustration- A makes a false complaint against B, alleging that B had committed theft with a view to compel B to deliver some property to him. Here A is liable for Malicious Prosecution.

How Malicious Prosecution can be distinguished from False Imprisonment?

False Imprisonment                                  

It imposes total restraint upon the personal liberty of a person. It is procured by a private individual or by an authorised official by asserting legal authority and is prima facie, a tort. There need not be any proof or malice on the part of the defendant.

Malicious Prosecution

It does not impose total restraint upon a person. It is procured by judgment or judicial order.

It is not a tort by itself. Further, in the case of Malicious Prosecution, the plaintiff has to prove malice on the part of the defendant which is not a case in false imprisonment.

Position in England

Until recently, defendants who were successful in defending a malicious claim, the nature of which was civil, did not have any redress. The rationale reiterated by the bench while passing the judgements used to be that the successful defence of a claim merely should not give someone a cause of action for claiming damages for that suit being malicious in nature and filed without any reasonable belief, just to make the defendant undergo ordeals. A person usually has remedies if the suit filed was criminal in nature as such a suit had potential to cause calculable and graver damages to someone’s goodwill and lower his image in the eyes of such members of the society who considered such individual a person of good virtue. This is not something new, rather it has been done on numerous occasions when the ambit of the tort was widened, one such instance is a suit filed under the Companies Act 1862 which shall be further reviewed for a better understanding of how the tort evolved in England.

In, The Quartz Hill Consolidated and Gold Mining Company, the facts were that the defendant, a shareholder in the plaintiff company and approached a broker to sell the shares owned by him for which the deed was duly signed by him and handed over to the said brokers. The shares could not be sold for some reasons and the defendant was informed of the same, however, the papers of transfer were not returned to him. Based on this fact he filed a suit after waiting for around 10 days for winding up the company and cited reasons of incompetence. The defendant was an owner of 100 shares of the firm each of whose value was 1 pound, but the valuation at the time of the sale of the shares fell to approximately 1/3 of it. The defendant claimed in the London Gazette that the company was offering properties in Colorado, United States of America for much more than their actual valuation in order to benefit from it and gain a promotion in the market. It was also alleged that their prospectus falsely claimed that the mining ventures they were putting up for sale was too valuable and would be a good investment for someone.

Later, the person was informed that the shares had been sold and hence he ceased to be a shareholder in that company to which he responded by sending a notice to the court requesting the dismissal of the suit filed by him which was eventually dismissed by the courts at no extra cost. This had an adverse effect on the business of the company and it hit a further low of 30% as the article published by the defendant brought disrepute to the firm and also, it went on to lose the trust of the investors owing to such articles defaming the company. Hence, they brought a suit against the defendants for wrongfully and maliciously filing a claim under the companies act which resulted in loss of business.

This being a suit of civil nature the remedies were limited, and the court held at first that no damages could be awarded and negated the claim keeping these parameters in mind firstly, there was no evidence which could show special damages secondly, there was no evidence of malice on the part of the prosecutor and thirdly, no action of this kind could possibly lie under any such circumstances. However, a suit would probably lie under a claim alleging a claim which was brought forward wrongfully but the above-mentioned parameters were not one of those. It was proved beyond doubt that there was some mismanagement in the affairs of the company and these circumstances are grounds which are enough as to the situation in which the defendant was as he bona fide brought forward this claim and not under any ill will.

It might be argued that mistake of fact is not an excuse under such a claim, but it can also be argued that there was an absence of an intention to injure the plaintiff company which for a suit of such nature to succeed is a prime requisite. Under this when a suit is dismissed a judge might award a company nominal damages as per the act. This claim resembled the want of adjudication under The Bankruptcy Act 1869 and as it was an analogous claim to one under the bankruptcy act, it would be maintainable. Any person who wrongfully sets either criminal or civil law in motion viciously shall be deemed as liable.

The court said it was vexatious for someone to bring a suit against someone just because the company had failed in the objective for which it was originally formed. The bench citing various other reasons dismissed the suit as not good enough to be granted any damages for maliciously filing a suit for winding up the company. Although the court held the defendant liable for bringing a suit on unreasonable grounds which injured the credit of the company the bench in unanimity rejected a claim to award special damages to the firm as they could not after thorough inspection not conclude that liability to pay any extra cost could be a ground for legal damage

Position in India

There are provisions in India for dealing with malicious proceedings of only criminal suits and a claimant usually has no remedies if such proceedings were instituted under any civil law other than any Municipality Act. As has been seen in England cases of such a nature are given a greater degree of importance, the backlog of cases and other drawbacks such as ways those are not only illegitimate but also draw a calculable degree of mockery on the legal system itself. Such cases drag for years and sometimes decades and the ordeal of the claimant turns out to become graver as time passes and he/she is left without a remedy but, must bear the expenses in maintenance of suit.

The English legal system has been flexible enough as per the changing times but the conservative approach of Indian lawmakers hasn’t really worked out for the public good as there are still no remedies for such civil claims which defame the person and one can only claim for damages when he/she can show such damages which in the eyes of the court would be called as special damage which should be causa causans of the complained act. The rationale of prosecution is a bit different than that in England, it is deemed to be a prosecution when it has reached a stage where calculable damage has been caused to the party defending that suit. For a detailed insight into the concept, we reviewed a judgement by the Calcutta High court which later went on to be cited while deciding many other cases.

In Mohamed Amin V. Jogendra Kumar Banerjee and others agreement was entered upon by the appellant and the first respondent for sale of a few commodities to a company which was to be formed by the first respondent. In the process, the first respondent incorporated a second respondent for carrying out the purchase and half of the agreed goods were transferred by the appellant. Later it was discovered that the respondent had breached the terms of the agreement which was entered upon, as a result of which the appellant refused to honour it and did not transfer the remaining goods. As a result of which the second respondent acting in his personal capacity and on behalf of the other respondent filed a suit under section 405, 420, and 422  of the Indian Penal Code and demanded that he be answerable to such charges. The magistrate held an inquiry in an open court attended by the appellant and dismissed the claim stating there is no cheating committed in this case and breach which exists is of purely civil nature.

The appellant brought forward a suit for malicious institution of criminal proceedings against him, to which the judge affirmed but observed the bench must stick to an earlier judgement by The High Court of Judicature of Calcutta in Golap Jann V. Bholanath khettry where it was observed that it cannot be deemed as prosecution if there is no issue of any processes or where the complaint was dismissed by the magistrate upon inspection of the complaint, citing the above precedent the claim of the appellant was dismissed which the bench observed to be rightly decided.

How can India deal with malicious suits?

As it has been observed in England, how voids were filled in the landmark case of Willers V. Joyce, similar steps can be taken in India as well. The judges have the independence of evolving new laws or filling voids in between the existing laws which might turn obsolete as time passes. Law is a living entity and like all other living entities, it cannot remain the same and must go through a state of transition when the society needs it to. In India suits nature of which are malicious are mostly criminal and an absence of remedies for a suit filed maliciously under civil laws is of least concern over here but the laws governing the suits of criminal proceedings are also insufficient. One such example is poorly drafted women laws. Many women till date have capriciously filed suits to obtain benefits but the victim of such suits has got no remedy.

The Indian legal system has over the time failed to address actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative approach behind and evolve laws of which they have got absolute discretion. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. One such instance can be discarding the doctrine which defines what can be called as a prosecution as it always differs from case to case, for instance in a suit inquiry might inflict sufficient amount of insult onto someone and successfully bring down their image whereas, in another case a complaint itself might have a potential to bring harm to someone’s reputation in the society of which such individual is an inhabitant. Not only should remedies be a concern for the courts’ measures such as taken by China must be taken wherein a person filing a suit of which he has knowledge to be false is heavily fined and such individual is also then barred from appealing to the court for a substantial amount of time.

Indian lawmakers should plan on setting up a Criminal Cases Review Commission as has been set up by the United Kingdom for review of criminal cases to discover whether there has been miscarriage of justice. The commission works exclusively for ascertaining if there has been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario where there is sufficient proof endorsing a claim where justice has not been delivered in the way it should be those cases, are then referred for appeal along with their reports.

Though there have been observations made by the apex court on several occasions while dealing cases of malicious prosecution where justice has not been delivered yet, the lawmakers have failed over and over again to capitalise on that fact and has miserably failed to come up with a legislation or for the instance even amendments which would serve for the cause in the short run and at the same time is used to frame relevant laws by conducting further research as to what is best suited to the legal system of India. It is often blamed on the courts when such fiascos occur but, if one analysis carefully it is the authority charged with carrying out such investigation, neglect on whose part has amounted to perversity and on the contrary have paved the way for forces which are gaining an upper hand for more such fiascos.

There has been a flagrant violation of the idea of natural justice as all these attempts to set the law in motion wrongfully to satisfy their plebeian selves and are going unpunished as the redresses available to the victims are not only scarce but also outrightly inefficient. The perpetual instances have been alarming enough and the need is now being felt more than ever before for competent legislation, which would deal with such acts.


The recognition of the tort of malicious prosecution has been done to safeguard individual interests, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. The malicious suits which have been on the rise, in absence of a concrete legislative framework which could help arrest, these trends where the legal procedure is being abused in order to gain wrongful benefit by subjecting parties to suits which are filed with a capricious intention. As there are no legal provisions which exclusively deal with such cases where there has been a miscarriage of justice, the article has scrutinized the legislative framework of England and also the approach of the courts over there, when it comes to dealing with those suits.


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