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
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.
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. 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
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
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
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
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.
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
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
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 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.
- 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 32or 226 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
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
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.
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 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 RemediesIn New Zealand, for a successful action of malicious prosecution, the plaintiff
should prove some points which are as follows;
- defendant prosecuted the plaintiff
- prosecution ended in the favor of plaintiff's
- defendant lacked reasonable and probable cause of bringing the
- defendant acted maliciously
- 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:
- Reasonable suspicion that the plaintiff committed the alleged crime for
which he was prosecuted.
- An honest belief by defendant in the guilt of the plaintiff.
- The existence of a reasonable or probable cause for the prosecution of
the plaintiff can serve as a compete defence
- When the prosecution is the discretion or the act of the officers of
- 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.
- Judicial authority/Judicial Immunity.
- Statutory or lawful authority.
- Preservation of the security of the state/country.
- 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.
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
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 ExpressionArticle 19 gives certain
freedom to every single person, and Article 19(1) says that the All citizens
have the right:
- freedom of speech and expression;
- assemble peacefully and without arms;
- form associations and unions or co-operative societies;
- move freely throughout the territory of India;
- reside and settle in any part of the country India;
- practice of any profession, or to carry on any occupation, trade or
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
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:
- the Special Court having jurisdiction in the area in which the wrongful
- the Special Court within the local limits of whose jurisdiction the
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.