Malicious Prosecution And Its Essential Elements Under Law Of Tort

Malicious Prosecution is an intentional tort in common law. In some of the jurisdictions the term “malicious prosecution” denotes the wrongful initiation of the criminal proceedings and the term “malicious use of process” denotes wrongful initiation of the civil proceedings.

In the Case of West Bengal State Electricity Board v. Dilip Kumar Ray the term “malicious prosecution” was defined by the court as follows:

“A Judicial proceeding initiated by one person against another, form a wrongful or improper motive and without a probable cause to sustain it is a malicious prosecution.”

In the above referred case the court also drew a line of distinction between the “act for malicious prosecution” and “an act for malicious prosecution” and “an act for abuse of process” in the following manner:

“A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to affect the improper use of a regularly issued process”

In case of malicious prosecution the plaintiff has to prove that there was a prosecution which had no probable reason or no justified cause for the same, also it has to be proved that the case was resolved in the plaintiff’s favour.

Elements of Malicious Prosecution

1. Institution of Legal Proceedings:

In order to establish malicious prosecution, there must have been a Prosecution which is initiated by Defendant. The test was indicated in the case of Mohammad Amin v. Jogendra Kumar Bannerjee, where a complaint was filed by the defendant by charging the plaintiff for Cheating. An inquiry under s. 202 of the Criminal procedure Code was made by the Magistrate, Later on when the complaint was dismissed by the Magistrate under s. 203 of the Criminal Procedure code it was seen that in the present circumstances three was prosecution. Therefore, it is not necessary that the proceedings reach such a stage at which the damage to the plaintiff is seen as a result.

In the case of Gaya Prasad v. Bharat Singh it was pointed that the conduct of the complainant before filing the complaint as well as the conduct after filing the complaint has to be looked onto and then it has to be decided whether he was the real prosecutor or not. If the person tries to impose false charges and misleads by providing false evidence for the purpose of the conviction of the accused, in this case, he will be considered to be the prosecutor.

2. Termination of the Prosecution in favour of the Plaintiff:

It must be proved that the proceedings which are been complained are terminated in the favour of the plaintiff. Which means the absence of a judicial determination of his guilt. An action cannot be brought when the prosecution of the proceedings are still pending.

3. Absence of A Reasonable and Proper Cause:

In a suit for damages it is necessary to prove that the plaintiff has been prosecuted by the defendant without any reasonable and probable cause. The question of whether there is a reasonable and probable cause of not has to be decided by the court based on the facts present in the case.

4. Malice:

‘Malice’ means having any motive apart from the motive of bringing the offender to Justice. It is the presence of some ill and improper motive. Anger and revenge as well maybe the improper motives if they are channelled in the Criminal Justice system. It has to be proved by the plaintiff that the defendant has acted maliciously in prosecuting.  It can also be done to gain collateral; the advantage of the same prosecution. It is not necessary that the defendant is acting maliciously right from the start if the prosecutor was innocent at the start but has subsequently become malicious the action for malicious prosecution can lie.

5. Damages:

It is important to prove that the plaintiff has suffered damages because of the prosecution. It is not necessary for the damages to be ‘pecuniary’. There could be essentially three types of damages- (a) When the damage is caused to the man’s fame, (b) When the damage is to a person’s life, limb, and liberty (c) Damage to a person’s property. Also, the damages must be reasonable and proper.


Malicious Prosecution is an abuse of the process by the court by the means of a wrongful setup pf law taking shape of Criminal Charge. Mere carelessness is not an in itself a proof of malice, The tort balances all the competing principles which are the ‘freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons’. The primary aim of this concept is to protect people from ‘vengeful litigation’, be it civil or criminal.

Malicious Prosecution is more precisely an attempt or effort to disturb the proper functioning of the Judicial Machinery. “Being the subject to ‘malicious prosecution’ can cause a wide range of injuries, whether it’s from unsubstantiated criminal charges or a bogus civil claim. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Compensatory damages consist of both the actual damages that were a direct result of the malicious prosecution (which may include pain and suffering and other non-monetary injuries) and special damages that identify quantifiable monetary losses – such as lost earnings, additional domestic costs such as childcare, etc.).”

This Article is Authored by Shrishti Jeswani, 2nd Year BA. LLB (Hons.) Student at School of Law, KIIT University.       

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