Malicious Prosecution: An Effort To Disturb The Functioning Of Judicial Machinery


It is a tort to initiate judicial criminal proceedings against someone, without reasonable or probable cause which results in damage to his reputation, personal freedom or property. This action for damages for malicious prosecution in part of the common law of England. The foundation of the action lies in the abuse of the process of the court by wrongfully setting the law in motion and it is designed to discourage perversion of the machinery of justice for an improper purpose.

For example –  ‘A’ makes a false complaint against ‘B’ for having committed burglary with a view to compel ‘B’ to deliver some property to him. ‘A’ in this case may be liable for malicious prosecution.


In an action of malicious prosecution, the plaintiff has to prove the following essential:-

(1)  That he was prosecuted by the defendant.

(2)  That the defendant acted without any reasonable and probable cause.

(3)  That the defendant was actuated with malice.

(4)  That the proceeding ended in favour of the plaintiff.

(5)  That the plaintiff suffered some damages.

Prosecution By Defendant

This ingredient involves essentials:-

(a) prosecution, and

(b) the same was instituted by the defendant.

(a) Prosecution – It means criminal proceedings against a person in court of law. A prosecution is there when a criminal charge is made before a judicial office.

(b) Prosecution must be instituted by the Defendant –  Although criminal proceeding is conducted in the name of the state, but for the purpose of malicious prosecution, prosecution is a part of who investigate the proceedings.

In case of, Balbhaddar v/s Badri Sah, (AIR 1926) The privy council held that malicious prosecution couldn’t be raised against an individual.

In case of, Periya Goundar v/s Kuppa Gounder (AIR1919), It was held that if the prosecution is launched on the information supplied by the active

Absence of Reasonable and Probable cause

The plaintiff has also to prove that the defendant prosecuted him without reasonable and probable cause. Reasonable and probably cause has been defined as an honest belief in the guilt of the accused upon a full conviction, founded upon reasonable grounds, of the existence of circumstances with assuming them to be true would reasonably lead to ordinary prudent man placed in the position of the accused to the conclusion that the person charge was probably guilty of the crime imparted.

Reasonable cause is such as would operate or the mind of a discreet man; probable cause is such as would operate in the mind of reasonable man.


It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him. There was malice of some direct and illegitimate motive-in the prosecutor and the primary purpose was something other than to bring the law into effect. It means a wish to injure the plaintiff rather than to vindicate the law

In case of, Bharat commerce industries v/s Surendra Nath (AIR 1966), It was held that the plaintiff‘s objects to prosecute are to be inductive to malice the person before the public, or if he is guided by purely personal consideration he should be held to malice.

Termination of proceeding in favour of  the plaintiff

It is also essential that the prosecution terminates in favour of the plaintiff. If the plaintiff has been convicted by the court, he cannot bring an action for malicious prosecution even though he can prove his innocence and also that the accusation was malicious.

Termination in favour of the plaintiff does not mean the judicial determination of his innocence, it means the absence of a judicial determination of his guilt.

Damage to the Plaintiff

It has also to be proved that the plaintiff has suffered damage as a consequence of the prosecution complained of. Even though the proceedings terminate in favour of the plaintiff, he may have suffered damage as a result of the prosecution. Damage is the gist of an action.

In case of, Savile v/s Robert (AIR 1899), Lord Holt opined that the plaintiff can claim damage on the following counting:

(a) Damage to the Plaintiff’s reputation;

(b) Damage to the Plaintiff’s person; and

(c) Damage to the Plaintiff’s property.

Hence, it can be said that malicious prosecution involves the essentials to be satisfied. When the essentials are satisfied, malicious prosecution is said to have taken place.

Irfan Hussain

Irfan Hussain, Content Writter, Law Corner, Student of B.A.,L.L.B, 5th semester, Tezpur Law College, Tezpur, Assam

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