Malicious Prosecution Under Law of Torts

Malicious Prosecution occurs when someone intentionally starts criminal or bankruptcy proceedings against another person without a good reason, and these proceedings ultimately don’t succeed. This legal issue tries to find a balance between the freedom to hold wrongdoers accountable and the importance of preventing baseless accusations against innocent individuals. Essentially, it’s like misusing the court system by wrongly accusing someone of a crime and initiating legal actions against them.


If someone takes legal action against another person with bad intentions and without a valid reason, it’s considered a malicious prosecution. In simpler terms, it means wrongfully starting a legal process against someone just to cause harm. The court in the same case explained the difference between a “malicious prosecution” and an “abuse of process.” Malicious prosecution is when someone intentionally initiates legal proceedings, while abuse of process is when legal procedures are used for a different purpose than intended by the law, essentially misusing the legal system for improper reasons.

Essential Element of Malicious Prosecution

Following are the essential elements which the plaintiff is required to prove in a suit for damages for malicious prosecution:-

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

Prosecution by the defendant

The first important thing the person suing for damages needs to prove in a malicious prosecution case is that they were taken to court by the person they’re suing. The term “prosecution” is broader than just a trial and includes criminal proceedings like appeals or revisions. In the Musa Yakum v. Manilal case, the court ruled that it’s not a valid excuse if the person who started the case did so because a court ordered it, especially if the court was misled by false evidence.

In the Khagendra Nath v. Jacob Chandra case, the court decided that simply bringing a matter to the attention of the executive authority doesn’t count as prosecution, so a lawsuit for malicious prosecution wouldn’t stand. It’s important to note that a departmental inquiry by a disciplinary authority doesn’t qualify as prosecution.

Absence of reasonable and probable cause

In a lawsuit for damages due to malicious prosecution, the person filing the case (the plaintiff) needs to show that the person they are suing (the defendant) prosecuted them without a valid reason. The question of whether there was a reasonable and probable cause should be decided based on all the facts presented in court. In the case of Antarajami Sharma v. Padma Bewa, it was established that in a malicious prosecution claim, the person making the accusation (plaintiff) has the responsibility to prove that there was no reasonable and probable cause for the prosecution.

It’s important to note that even if there was a valid reason for prosecution, it doesn’t help the defendant if they were unaware of it. Simply because a case was dismissed or the accused was acquitted does not automatically mean there was no reasonable and probable cause. If someone brings charges that include both valid and invalid reasons, and they weren’t aware of this mix, they can still be held liable for malicious prosecution.

Defendant acted maliciously

In a lawsuit for damages due to malicious prosecution, it’s crucial for the plaintiff to show that the defendant didn’t just intend to enforce the law but acted with malice, not necessarily driven by hatred or spite, but perhaps for personal gain. The case of Bank of India v. Lekshmi Das emphasized that, in India, proving the absence of a reasonable cause is essential to establish malice. The plaintiff must demonstrate that the legal proceedings were initiated with a malicious spirit, stemming from an improper motive rather than a pursuit of justice.

Malice can be inferred if there’s proof of the accuser lacking an honest belief in the accusation and a subsequent lack of reasonable cause for the prosecution. Importantly, it’s not required for the defendant to have acted maliciously from the outset; if malice develops later, it can still be grounds for a malicious prosecution claim. For instance, if the prosecutor learns of the accused’s innocence during the criminal proceedings and still continues, it can be considered malicious.

Termination of proceedings in the favour of the plaintiff

In a case seeking damages for malicious prosecution, it’s crucial to demonstrate that the legal proceedings in question ended favorably for the person filing the lawsuit. This doesn’t necessarily mean a court declared the plaintiff innocent, but rather that there was no official determination of guilt. Malice, in this context, doesn’t have to be fueled by personal animosity or ill will; it can also involve improper motives, such as pursuing the case for a private advantage. Keep in mind that a legal action cannot be initiated while the prosecution or proceedings are still ongoing. This legal principle ensures that individuals cannot claim injustice for a lawsuit that is still in progress.

Plaintiff suffered damage as a result of the prosecution

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

  • Damage to the plaintiff’s reputation,
  • Damage to the plaintiff’s person,
  • Damage to the plaintiff’s property.

Malicious Civil Proceeding

In the Darbhangi Thakur v. Mahabir Prasad case, it was decided that, unlike in malicious criminal prosecutions, there is a general rule that no action can be brought in the case of civil proceedings, even if they are malicious and lack reasonable cause.

In the Genu Ganapati v. Bhalchand Jivraj case, it was established that certain elements need to be fulfilled to demonstrate malicious abuse of civil proceedings in a more understandable way.

  • Firstly, the person bringing the case must prove malice.
  • Secondly, the plaintiff needs to claim and provide evidence that the defendant acted without a reasonable and probable cause, and that the proceedings either ended in the plaintiff’s favor or were superseded or discharged.
  • Lastly, it is essential for the plaintiff to show that these civil proceedings have negatively impacted their liberty, property, or reputation, or have the potential to do so.


Malicious proceedings refer to legal actions started with bad intentions. In a case seeking damages for malicious prosecution, certain key factors need to be proven by the plaintiff. These include the defendant initiating the prosecution, lack of reasonable and probable cause, malicious intent on the part of the defendant, termination of proceedings favoring the plaintiff, and the plaintiff suffering damage due to the prosecution. It’s crucial for the court to assess the overall context and decide whether the lawsuit is genuinely driven by malicious motives or not based on the specific facts and circumstances.

Read Also: Remedies for Breach of Contract

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