Malicious Prosecution

In one minute

Malicious prosecution is the tort of starting a criminal case against a person maliciously and without reasonable and probable cause, when the case ends in that person's favour. The claimant must prove five things, including damage.

In exams, this topic is asked as "state the essentials of malicious prosecution" and as a problem where a complaint fails and the accused sues. The usual trap is to forget that malice and lack of reasonable cause are two separate essentials.

Legal provision

• No Indian statute defines this tort. It comes from English common law and is applied in India as justice, equity and good conscience.
• Bharatiya Nagarik Suraksha Sanhita, 2023: a court that dismisses a complaint as false or vexatious can order the complainant to pay compensation to the accused. This is a criminal court remedy and does not replace the civil action.
• Bharatiya Nyaya Sanhita, 2023: instituting a criminal proceeding falsely, knowing there is no just ground, is also an offence.

Meaning and definition

Malicious prosecution is the abuse of the machinery of criminal law. The defendant sets the law in motion against the claimant. The claimant is acquitted or discharged. He then sues the defendant for the injury to his reputation, person or property caused by the false charge.

Detailed explanation

Step 1: The five essentials

The five essentials are stated in Gaya Prasad v. Bhagat Singh. The claimant must prove all five.

1. The defendant prosecuted the claimant. The defendant must have set the law in motion, not merely given information. If the police or the court acted on their own judgment, the defendant is not the prosecutor. Mohammed Amin v. Jogendra Kumar Bannerjee (1947) held that a prosecution begins when a person is brought before a judicial officer who can take action.
2. The prosecution ended in the claimant's favour. An acquittal, a discharge or a quashing counts. A civil claim cannot be filed while the case is still pending.
3. No reasonable and probable cause. This is tested objectively.
4. Malice. The defendant acted with a wrong motive, other than bringing an offender to justice.
5. Damage. The claimant must prove injury.

Step 2: Reasonable and probable cause

• In Hicks v. Faulkner (1878), Hawkins J described it as an honest belief in the guilt of the accused, based on reasonable grounds, in facts that would lead a prudent person to the same belief.
• The defendant must have taken reasonable care to find out the true facts. A belief formed without any inquiry is not enough.
• The burden is on the claimant to show the absence of cause.
• Advice from a lawyer after full disclosure of facts helps the defendant. Hiding facts from the lawyer does not.

Step 3: Malice

• Malice means a motive other than the proper one of bringing the accused to justice. Spite, revenge or pressure for a private claim are examples.
• Malice and lack of cause are separate. Malice may be inferred from a complete lack of cause, but lack of cause cannot be inferred from malice alone.
• If there was reasonable cause, the tort fails even if the defendant acted with spite.

Step 4: Damage

The law recognises three kinds of damage, as stated in Savile v. Roberts (1698). They are damage to reputation, damage to the person (such as arrest or imprisonment), and damage to property (such as the costs of defending). The claimant must prove at least one.

Step 5: Defences

• Reasonable and probable cause existed.
• No malice, with an honest belief.
• The case did not end in the claimant's favour, for example a conviction that stands.
• The defendant did not prosecute. He only gave information, and the authority decided to act.
• Acting on a lawyer's advice after full and honest disclosure.

Step 6: Remedies

• Damages for harm to reputation, discomfort, loss of liberty and the costs of defending the case. Where the malice was clear, aggravated damages are possible.
• An injunction is not usual, because the tort arises only after the case ends.
• Criminal liability for a false charge can run separately.

Step 7: Abuse of process (a different tort)

Abuse of process is the misuse of a legal process, civil or criminal, for a purpose it was not meant for. In Grainger v. Hill (1838), the defendant used an arrest process to force the claimant to hand over a ship's register. Abuse of process does not need a favourable end or absence of cause. It needs an ulterior purpose and an act that misuses the process.

1. 1. The defendant set the criminal law in motion against the claimantIf this is missing, there is no claim.
2. 2. The case ended in the claimant's favourIf this is missing, there is no claim.
3. 3. No reasonable and probable causeIf this is missing, there is no claim.
4. 4. MaliceIf this is missing, there is no claim.
5. 5. Damage proved: malicious prosecution

Don't confuse: malicious prosecution and false imprisonment

Point	Malicious prosecution	False imprisonment
Wrong	A false criminal case	Unlawful total restraint
Damage	Must be proved	Not needed
Malice	Essential	Not needed
Case must end in claimant's favour	Yes	No
Who is liable	The person who starts the case	The person who restrains

Common mistakes

• Treating a failed complaint as enough. All five essentials are needed.
• Merging malice with lack of reasonable cause. They are separate.
• Suing while the criminal case is still pending.
• Forgetting that damage must be proved.
• Confusing it with abuse of process or false imprisonment.

Apply it

Leading case laws

• Gaya Prasad v. Bhagat Singh (1908)

  Facts. The defendant reported a riot that never happened. The claimant faced a criminal case and was cleared, then sued.

  Principle. The five essentials of malicious prosecution.

  Significance. The standard Indian statement of the tort.

• Mohammed Amin v. Jogendra Kumar Bannerjee (1947)

  Facts. The Privy Council considered when a prosecution begins.

  Principle. A prosecution begins when the accused is brought before a judicial officer who can take action.

  Significance. Sets the first essential.

• Hicks v. Faulkner (1878)

  Facts. The case discussed what amounts to reasonable and probable cause.

  Principle. An honest belief in guilt based on reasonable grounds.

  Significance. The classic description of reasonable and probable cause.

• Savile v. Roberts (1698)

  Facts. The court listed the heads of damage in this action.

  Principle. Damage to reputation, to the person and to property.

  Significance. Gives the heads of damage.

How to write this answer in the exam

Key points to remember

• Five essentials: prosecution, favourable end, no reasonable cause, malice, damage.
• Malice and lack of cause are separate essentials.
• The action arises only after the criminal case ends.
• Damage must be proved: reputation, person or property.
• Abuse of process is a different tort.

Quick self-test

Related topics

• False Imprisonment
• Nervous Shock
• Torts affecting the person