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| Tort of Malicious Prosecution |
Tort of Malicious Prosecution: An Introduction
Tort of Malicious Prosecution; the malicious prosecution is a common-law international tort. Malicious prosecution means the proceedings initiated maliciously and also includes malicious arrest, malicious bankruptcy, civil malicious proceedings, malicious search and malicious execution of process against the property, these are the types of malicious prosecution.
Table of Contents
The malicious prosecution in tort is not similar to the abuse of the process of law. In the case of West Bengal State Electricity Board v/v Dilip Kumar Ray, 2007, the court laid down the difference between "malicious prosecution" and "abuse of process"
The court held that the malicious prosecution consists of malicious intention causing the malicious process to be issued whereas the abuse of power is the employment of legal process for some bad purpose and it was intentionally initiated by the law to affect the improper use of a regular issue process.
Malicious Prosecution: Definition
Malicious prosecution in tort is defined as "The initiating the criminal prosecution or civil proceedings against the other party with malice (lousy intention) and without any reasonable cause.
In general, malicious prosecution is defined as "The malicious prosecution is the bad intention of unsuccessful criminal, bankruptcy or civil proceedings against the other person without any reasonable and probable cause."
In other words, the definition of malicious prosecution is stated as "A judicial proceeding initiated by one person against the other person with a wrongful and improper motive and without any reasonable and probable cause to justify it, is defined as malicious prosecution."
Essential Elements of Malicious Prosecution
Some essential elements of malicious prosecution are to be proved in a criminal prosecution or in a civil proceeding to claim compensation out of this malicious prosecution. The essential elements of malicious prosecution are;
- Prosecution by the Defendant
- Absence of Reasonable and Probable Cause
- Defendant Acted Maliciously
- Termination of Proceedings in favor of the Plaintiffs
- Plaintiff Suffered Damage as a result of a Prosecution
1. Prosecution by the Defendant
The first and most important essential element of malicious prosecution is the prosecution by the defendant. In that case, the plaintiff has the burden of proof to prove the damages for malicious prosecution.
Therefore, the plaintiff is being prosecuted by the defendant whether the plaintiff actually caused any damages or not.
Here, the word "Prosecution" has a wider meaning, therefore, the word prosecution includes criminal proceedings by way of trial, appeal or revision.
In Musa Yakum v/s Manilal, 1904, it was held that there was no excuse for the defendant to institute prosecution under the order of a court if the court was moved by the defendants' false evidence to give the order then the defendant held to be liable for this.
In the case of Khagendra Nath v/s Jacob Chandra, 1976, in court, it was held that merely bringing the matter before the court did not amount to prosecution against the defendant, therefore, the action for malicious prosecution could not be maintainable.
2. Absence of reasonable and Probable Cause
In the civil suit for damages for the malicious prosecution, the plaintiff is also required to prove that the defendant has prosecuted the plaintiff without any reasonable cause and probable cause. So, what is the absence of possible and reasonable cause that the plaintiff should prove?
The absence of reasonable and probable cause in the suit for malicious prosecution should be decided on all relevant facts before the court.
In the case of Niaz Mohammad Khan v/s Deane, 1948, it was held that the question relating to the want of reasonable and probable cause in a suit for the malicious prosecution should be decided on all the relevant facts relating to the matter before the court.
Therefore, the existence of reasonable and probable cause cannot avail when the prosecutor prosecuted in ignorance of it. Whereas, if the court dismissed the prosecution or acquitted the accused does not create any presumption of the absence of reasonable and probable cause.
3. Defendant Acted Maliciously
Another essential element of malicious prosecution is when the defendant acted maliciously in prosecuting a criminal trial and not with the mere intention of carrying the law into effect in that case when the defendant himself acted maliciously in prosecuting him then the damages for malicious prosecution by the defendant.
Here, the malice intention need not be a feeling of enmity, spite, or ill-will of the defendant but can be an inappropriate purpose that motivates the prosecutor. For example, the defendant acted maliciously in the prosecution to gain private collateral advantages in the criminal prosecution.
In the matter of Bank of India v/s Lakshmi Das, 2000, the Hon'ble Court held that in the malice the absence of probable and reasonable cause must be proved. Further, the defendant doesn't need to act maliciously from the beginning of the prosecution. If the defendant is acting innocently at the beginning of the prosecution but becomes malicious later, thus an action for malicious prosecution can liable.
4. Termination of Proceedings in favour of the Plaintiff
When the plaintiff files a suit for claiming damages for the malicious prosecution, it is essential to show that the proceedings complained of were terminated in the favour of the plaintiff. Whereas, the termination of the proceedings in favour of the plaintiff does not mean the judicial determination of his innocence but actually means, the abuse of judicial determination of his guilt.
Here, the word malice need not be an ill will or feeling of enmity but it can be any improper purpose that motivates the prosecutor, such as to gain a collateral advantage. It is a rule of law that no action can be brought when the prosecution of the proceedings is pending.
5. Plaintiff Suffered Damage as a result of a Prosecution
The plaintiff should prove that the plaintiff suffered damage due to the malicious prosecution in the proceedings, this is an essential element in a suit for damages of malicious prosecution.
Malicious Civil Proceedings
In the case of Darbhanga Thakur v. Mahabir Prasad, it was held that it is a general rule that, unlike malicious criminal prosecution, no action can be brought in the case of civil proceedings even though the same are malicious and have been brought without any reasonable cause.
In the case of Genu Ganapati v. Bhalchand Jivraj, it was held that the following are the essentials to establish malicious abuse of civil proceedings:-
- Malice must be proved.
- The plaintiff must allege and prove that the defendant acted without a reasonable and probable clause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.
- The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such civil proceedings have affected or are likely to affect his reputation.
Frequently Asked Questions
What is a malicious intention in tort?
When an act is done with bad intentions, it is called malice. Malice-in-fact refers to the performance of an act that may be legal but with ill will, hatred, or bad intention. Whereas, Malice-in-Law, refers to a wrongful act, done intentionally, without just cause or legal excuse.
What is Malice in the law of tort?
"Malice in common acceptation means ill-will against a person; but in its legal sense, it means a wrongful act, done intentionally, without just cause or excuse."
What is malicious prosecution under BNS?
Section 248 of the BNS deals with the offence of false charge of offence made with intent to injure.
What is an example of a malicious prosecution?
Malicious prosecution occurs when someone sues you or brings criminal charges against you without probable cause and with harmful intent. Examples could include someone providing false evidence to the police that you committed a crime or someone suing you for hurting them even if you never caused them harm.
Conclusion
Tort of Malicious Prosecution- The malicious proceedings are initiated with malicious intent in the proceedings. The essential elements of malicious prosecution are prosecution by the defendant, absence of reasonable and probable cause, defendant acted maliciously, termination of proceedings in the favor of the plaintiffs, plaintiff suffered damage as a result of prosecution is necessary for the plaintiff to prove in a suit for damages for malicious prosecution must be fulfilled.