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Malicious Prosecution

The Criminal and civil cases that lack many evidences usually aren't pursued and occasionally criminal charges or civil lawsuits are maliciously filed to intimidate, harass, defame, or injure the other party. Such actions are known as malicious prosecution. Malicious prosecution occurs when one party knowingly and with malicious intention initiate a baseless litigation against the other party.

This can include both criminal charges and as well as civil claim, for which the cause of action is essentially the same. Malicious Prosecution is described under Law of Torts and also under Indian Penal code. It is an abuse to the Judicial System as it aims to provide justice to innocent people but under Malicious Prosecution, innocent people are convicted. Under this the defendant becomes plaintiff and plaintiff becomes defendant.

The case under malicious prosecution should be filed within a year of a malicious suit. For the execution of malicious proceeding, it is necessary to be initiated by a criminal proceeding against an innocent person without any reasonable cause. The person filing the case of malicious prosecution must have suffered any damage or harm and he has to prove the same in the court to initiate the proceeding.

According to a case Riegel Vs. Hygrade Seed Co.1942– Malicious Prosecution is for the recovery of damages to person, property, or reputation, shown to have approximately resulted from a previous civil or criminal proceeding, which was commenced or continued without probable cause, but with malice, and which has terminated unsuccessfully.[1] In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Court defined the term “malicious prosecution” in the following words:
“A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution.”[2]

The history or the origin of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I's reign. Malicious prosecution has its origin in England and evolved in 18th and 19th century. It was an outcome of misusing the due procedure of law since 18th and 19th century in England. Later it spread its wings across the globe, in different countries.

This was more witnessed in common wealth countries since they had a great influence of the English laws in their countries. Malicious prosecution has also caught a very strong footing in the United States, probably because of holding the persons liberty and reputation in the highest regard.

Elements of Malicious Prosecution

The following are the essential elements which the plaintiff needs to prove in a suit for damages for malicious prosecution:

  • Prosecution by the defendant
  • Absence of probable/ reasonable cause
  • Defendant acted maliciously
  • Termination of the proceedings in the favor of the plaintiff.
  • Plaintiff suffered the damage as a result of the prosecution

Prosecution by the defendant

It is the very first essential element which the plaintiff needs to prove in a suit for damages for malicious prosecution is that he (plaintiff) was prosecuted by the defendant.

Absence of probable and reasonable cause

In a suit for damages of malicious prosecution, the plaintiff is also required to prove that the defendant prosecuted him without reasonable and probable cause. The question related to the reasonable and probable cause suit for malicious prosecution should be decided on all facts before the Court. The existence of probable and reasonable cause is of no use if the prosecutor is prosecuted in ignorance of it. The dismissal of the prosecution or the acquittal of the accused does not create any presumption in the absence of reasonable and probable cause.

Defendant act Maliciously

In a suit of damages for malicious prosecution, it is another essential element which the plaintiff has to prove that the defendant acted maliciously/wrongfully in prosecuting him and not with a mere intention for carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but on the other hand it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.

Termination of proceedings in the favor of the plaintiff

In a suit of damages for malicious proceedings, it is essential to show that the prosecution complained of terminated in favor of the plaintiff. Termination in favor of the plaintiff does not mean that the judicial determination of his innocence; it means absence of judicial determination of his guilt. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can have any improper purpose which can motivate the prosecutor, such as to gain a private collateral advantage.

Plaintiff suffered damage as a result of the prosecution

In a suit of damages for malicious prosecution, it is the other essential element which the plaintiff is required to prove that the plaintiff had suffered the damage and as a result of the prosecution. In a claim for prosecution, the plaintiff can claim the damages on the following three counts

Damage to the plaintiff's reputation

One of the important source of pleasure in a man's life is a good reputation, and the most traumatising pain is a bad reputation. A good reputation means that the man has garnered good will in the society, and that is the greatest source of pleasure to him. Each and every person works his whole life trying to maintain good will. A good will often relates to moral values. The biggest pain in a person's life is a bad reputation. A bad reputation in society negates the work of a person who is trying towards creating a good will. Moreover, a bad reputation also brings along the ill will of the society, as well as social non acceptance and this is in direct deprivation of the fundamental right of right to life.

Damage to the plaintiff's person

The amount of physical injury can also be involve through a maliciously instituted proceeding. Criminal charges often include arrest as an important consequence of the procedure once the law is set. The injury and the damages to the person may have an effect in case of arrest due to malicious prosecution. Also the unnecessarily and unjustly the person would have to sacrifice their personal liberty and freedom. Furthermore, this trauma is bound to cause great mental stress to the aggrieved person. Therefore, malicious prosecution case is capable of causing a great deal of injury to the person who is on the receiving end of a maliciously instituted proceeding.

Damage to the plaintiff's property

An unjust and malicious prosecution means that the person who is accused of has to use his resources and money in defending the prosecution. This unnecessary expenditure in large amount is an injury to his property.

Position of Malicious Prosecution in India

There are provisions in India for dealing with malicious proceedings, criminal suits and a claimant usually has no remedies. The English legal system has been very flexible enough as per the changing times but the conservative approach and thinking of Indian lawmakers hasn't really worked out for the public good as there are still no remedies for civil claims which defame the person.

The rationality of prosecution in India 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. In the Indian context, the wrongful/Malicious prosecution should be the most effective for identifying the cases of malicious prosecution as it directly targets procedural and other prosecutor misconducts, which is one of the primary sources of factual errors that results in innocent people being held guilty of offences they did not commit. At present in our country there is no statutory or legal scheme for compensating those people who are wrongfully incarcerated.

The instances of those people who are being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. They are left without any hopes for reintegration into society or rehabilitation since the best years of their life has been spent behind bars and invisible behind the high walls of prison.

There are various cases for instance like in:
  • Khatri v. State of Bihar (1981)
  • Veena Sethi v. State of Bihar (1983)
  • Rudul Sah v. State of Bihar (1983)
  • Bhim Singh v. State of Jammu and Kashmir (1985)
the Supreme Court held that compensation can be granted by the constitutional courts for the violation of fundamental rights under the Article 21 of the Constitution of India. This includes granting compensation to those who were wrongly incarcerated. But these are not easily available to all similarly situated persons.

How can India deal with Malicious suits

The judges have the independence of evolving new laws and acts or filling voids in between the existing laws. Law is a living entity and it cannot remain the same and must go through a state of transition when the society needs it to. In India suits nature 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 the poorly drafted women laws. Many women till date have capriciously filed suits to obtain benefits but the victims of such suits have got no remedy. The Indian legal system has over the time failed to address the actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative thinking behind and 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. 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.

What amounts to Malicious Prosecution

The Malicious prosecution cases of wrongfully given justice where procedural misconducts[3] involving police or prosecutorial, malicious or being negligence results in wrongful prosecution of an innocent person. The underlying sentiments being that such person should not have been subjected to these proceedings.

An illustrative list of procedural misconduct would include the following:
  • Making or framing some false or incorrect record and documents for submission in a judicial proceeding
  • Making a false statement authorized by law to receive as evidence when legally bound to state the truth
  • Fabricating the evidences for submission in a judicial proceeding or any other proceeding taken by law
  • Destruction of the evidences to prevent its production in a judicial
  • Bringing a false charge, or instituted false criminal proceedings against a person
  • Committing a person to confinement or trial acting contrary to law

Remedies available for Malicious Prosecution

The existing laws and case laws bring forward the three kind of court based remedies which are against malicious prosecution, incarnation.
They are:
  • Public law remedy: the compensation by writ court judgments
  • Private law remedy: the civil law remedies under the law of tort
  • Criminal law remedy: the administrative relief of punishing the responsible officials under the criminal law `
The public and private law remedies are pecuniary in nature but the criminal law remedy one is the criminal action against the concerned officials which has to be taken by the concerned government.

Public law remedy

The Malicious Prosecution infringes fundamental rights of the accused person and then the accused can invoke writ jurisdiction under article 32[4]or 226[5] and then obtain from the writ courts the relief of grant of compensation to the victim who suffered bodily, mental and social harm. Public law remedy does not preclude the right of compensation that is available under the civil law of tort.

Private law remedy

Under private law remedy, the person who is wrongfully prosecuted can file suit for monetary damages against the state under the vicarious liability. The person who is maliciously prosecuted can file both the cases simultaneously.

Criminal law remedy

The person suffered under Malicious prosecution can request the respective government to take criminal law remedies action against the concerned public official in pursuance of the provisions in Indian Penal Code and Cr PC. The supreme court states that illegal arrest cannot be washed away by setting the person arrested free. The states in such cases should take action against the officials who are responsible for such prosecution.

Present position of Malicious Prosecution in various other countries legal system

The tort of malicious prosecution is currently feasible by way of other mechanisms all around the world. Various laws have enacted legislation to that effect and laid down guidelines for the usage of the tort through case laws.


England has been the birthplace for the tort law and law of malicious prosecution. As early as 10th century, the English people understood the need to restrain malicious litigation initiated with vested interests. Back in the 18th and 19th century the law of malicious prosecution matured in England. But, the application of the law of malicious prosecution has two distinctions, first the application exclusively to the criminal law; and second the extending of application to civil law as well.

United States of America

The United States of America has been quite liberal in its usage and codification of the law of malicious prosecution. Historically, and even today it has not limited the scope of the tort to criminal proceedings alone. Also, it has time and again codified the tort in legislation.

American Jurisprudence

There seems to be no specific reason why an action should not lie for the institution of unfounded and malicious proceedings before a court, or some administrative or domestic tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the person accused. This essentially express present day principles of elucidate the claims regarding malicious prosecution. Broad spectrum of clarifying is applied to the principles of the tort so as to give maximum benefit or profit to the victim, which in return also acts as an essential deterrent for malicious litigation.

New Zealand

New Zealand has codified the means discharging successful of innocent defendant. The possible remedies in New Zealand for all those people who are prosecuted for offences which they have not committed are an award of costs the tort remedies of malicious prosecution.

Tortuous Remedies

In New Zealand, for a successful action of malicious prosecution, the plaintiff should prove some points which are as follows;
  1. defendant prosecuted the plaintiff
  2. prosecution ended in the favor of plaintiff's
  3. defendant lacked reasonable and probable cause of bringing the prosecution
  4. defendant acted maliciously
  5. plaintiff suffered damages as a result of the prosecution

Studying about the various legal systems of the world, it can be expressly seen that both common law and civil law countries have adopted the concept of malicious prosecution in their legislation. Since the concept in itself has been originated in common law. On the other hand, civil law countries have adopted the concept later in time.

Defences available to Malicious Prosecution claims

The tort of malicious prosecution, a very effective one if implemented in its right spirit, also comes with its short comings. These short comings are in the form of numerous defenses that can be availed of in a suit of malicious prosecution. There are various types of defences that can be taken when one is charged with a claim of malicious prosecution:
  1. Reasonable suspicion that the plaintiff committed the alleged crime for which he was prosecuted.
  2. An honest belief by defendant in the guilt of the plaintiff.
  3. The existence of a reasonable or probable cause for the prosecution of the plaintiff can serve as a compete defence
  4. When the prosecution is the discretion or the act of the officers of law.
  5. Contributory Negligence in a situation where the plaintiff is at fault. Such a situation can arise when the plaintiff, through a misleading conduct, creates malicious impression which formed the basis for the reasonable suspicion and prosecution for the alleged crime.
  6. Judicial authority/Judicial Immunity.
  7. Statutory or lawful authority.
  8. Preservation of the security of the state/country.
  9. Statutory Bar, e.g.:
Statute of Limitations, which provides a limitation period for legal action. After the expiration of the said period, the claim is invalid and cannot be permissible in court.
However, not all of these defences can be fool proof in their bare form. Especially point number 1,2 and 3 are such where in the motive needs to sufficiently proved by the aggressor in case of a claim of malicious prosecution against him, since the order/indictment of the court would be contrary to his claim. Moreover, malice would play a vital role in such cases, where in slightest evidence of malice brought before the court by the victim would be sufficient to pull down these defences.

Also, defences enumerated at point numbers 6 and 7 need serious brainstorming and thought to be put behind them. India is a country where even the highest judicial authority, the Supreme Court, is also held accountable. In such a strong democratic set up, it is only fair that absolute statutory immunity should not be granted to government agents. There is no doubt that government agents need to be given protection for the very nature of work that they undertake. However, this protection should not absolute in nature.

The doctrine of checks and balances should be applied, and the researcher strongly feels that implementation of the concept of malicious prosecution would prove to be an effective medium for it. The absolute immunity is the main reason for making the government agents unapologetic of their wrong doings, and has led it to be the thriving ground of corruption and also for maliciously instituted proceedings.

Malicious Prosecution And Fundamental Rights

Malicious prosecution is also a concept which is inter woven with various fundamental rights given by the Constitution of India. A victim malicious prosecution faces a lot many hardships and problem. Such hardships include many this and may not be limited to loss of personal liberty, loss of livelihood, loss of reputation, etc.

All these aspects are considered as key of human rights in all the international doctrines and covenants. They are enshrined as a fundamental right in the Constitution of India. Majority of the suffering that a victim of malicious prosecution faces, are such rights which are given by the Constitution of India. Thus, not having a comprehensive and effective law of malicious prosecutions which would in effect mean that the fundamental rights of the citizens remain vulnerable to a large extent.

Article 21 Right to Life and Personal Liberty

The right to life article 21 means right to live with human dignity and all that goes along with it, the necessities of life such as basic nutrition, clothing and shelter and facilities for reading, writing and expressing themselves in diverse forms, freely moving about and mixing and with other fellow human beings and they must include the right to basic necessities for living a life and also the right to carry on functions and activities as constitute the bare minimum expression of human self. =

Dignity means as the state or quality of being worthy of respect. A person who is a victim of a malicious prosecution, loses his dignity and respect in the eyes of the people around him, depending on the type of offence and accusations he/she is accused of, resulting in violation of his/her right to live with human dignity.

In case of Maneka Gandhi v. Union of India, the Supreme Court gave a new and different dimension to Art. 21 and held that the right to live is not just a physical right but includes within its area the right to live with human dignity.

The person prosecuted maliciously is restrained from doing certain acts, curtailing his or her Rights to Personal Liberty. A victim of a malicious accusation may have to face arrest for no fault of his but still he is accused of doing the act. In this procedure of law, the liberty is curtailed of the victim by violating his fundamental right to liberty. Thus it can be seen that a person prosecuted maliciously, his fundamental right to life and liberty of a person at multiple levels are violated.

Article 19 Freedom of Speech and Expression

Article 19 gives certain freedom to every single person, and Article 19(1) says that the All citizens have the right:
  1. freedom of speech and expression;
  2. assemble peacefully and without arms;
  3. form associations and unions or co-operative societies;
  4. move freely throughout the territory of India;
  5. reside and settle in any part of the country India;
  6. practice of any profession, or to carry on any occupation, trade or business etc.

All these rights and freedoms are guaranteed to every citizen, get curtailed and grossly violated in case of a victim who is maliciously prosecuted. His freedom of speech and expression with his friends and family is violated, then his right to assemble peacefully amongst his society is violated, his right to move freely around throughout the territory of India and his right to reside in any state or part of India is violated due to arrest, and finally his right to practice any profession of his choice is also violated due to the limitations of a trial and consequent arrest.

Hence his so many fundamental rights get trampled upon, for a crime that he or she hasn't even committed. And at last it becomes a case of malicious prosecution and all they get is a judgment of acquittal.

Conclusion and Suggestions
The concept of malicious prosecution is a torch bearer of the protection of a person reputation. It is an ageless concept that reputation is the most important facet of any person's life and it is however quite saddening that not enough legal protection has been granted to it. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. It acknowledges not just the importance of a person's reputation, but also the trauma every person has to suffer while dealing with any litigation and the consequent loses.

There needs to be recompense for the years lost, for the social stigma, the mental, emotional and physical harassment, and for the expenses incurred etc. There needs to be compensatory assistance by the State to help the innocent victims of miscarriage. The criminal justice system, as it stands, does not provide for an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions.

As things stand, there is no statutory or legal scheme articulating the State response to this issue. Moreover, given the endemic and sensitive nature of the issue, and the glaring inadequacies of the available remedies, there is a pressing need for an explicit law for compensating the victims who have suffered miscarriage of justice at the hands of the State machinery – laying down State statutory obligation to recompense these victims of wrongful prosecution, and a dedicated judicial mechanism to give effect to the same.

Now some suggestions which would definitely make a difference in the scenario:
  • Special Courts
    The designation of special courts in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice jurisdiction should be made by the applicant, as follows:
    1. the Special Court having jurisdiction in the area in which the wrongful prosecution occurred
    2. the Special Court within the local limits of whose jurisdiction the applicant resides.
  • Compensation
    There needs to be compensatory assistance by the State to help the innocent victims of miscarriage of justice, who have suffered through wrongful prosecution, to rehabilitate and to adjust to the life-after, and to reintegrate into society. Non-pecuniary assistance shall also include a specific provision for removing disqualifications attached to a prosecution or conviction
  • Nature of Proceedings
    Keeping in mind the objective of efficiency in terms of time and process, it is recommended that the Special Court for the purpose of inquiry and adjudication herein, follow summary procedures as may be prescribed.

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