Malicious Prosecution /Abuse of Legal Proceedings – Law of torts

Malicious Prosecution /Abuse of Legal Proceedings – Law of torts

A Malicious Prosecution is defined as “ a judicial proceeding instituted by an individual or entity against another, from wrongful or improper motive and without probable cause to sustain it.

A Malicious Prosecution can be defined as when a person knows that the case does not have an evidentiary basis even though person uses the legal system to bring court action against someone. Individual or entity knows the case does not have an evidentiary whereas, Abuse of Process can be defined as when a person using legal system in a way that is not necessarily serving the underlying legal action, but rather to achieve another purpose. Abuse of Process and Malicious Prosecution is related type of civil lawsuits although, in tort Malicious Prosecution and Abuse of law both sound similar and claim can be brought against someone even if the underlying cause of action for the lawsuit was valid. In tort civil wrong include any wrong which don’t cause any physical harm can called Dignitary tort. In other words those torts that have caused harm to person’s reputation or dignity like Malicious Prosecution, Defamation and Abuse of Law. Malicious Prosecution and Abuse of Law can be claimed against someone when underlying cause of action for the lawsuit was valid

Example of Malicious Prosecution

A and B were business partners, due to some misunderstanding A with rivalry and bad intention accused B for theft and filed a complaint against A. B found an innocent and A is guilty of Malicious Prosecution. B filed a case of Malicious Prosecution against A. B succeeded as A intention were malafide.
The Apex Court defined the Malicious Prosecution in case West Bengal State Electricity Board vs. Dilip Kumar Bay.

According to Court there were two essentials elements for constituting a malicious prosecution, namely-
(a) that no probable cause existed for instituting the prosecution or suit complained of,
(b) that such prosecution or suit terminated in some ways favorably to the defendant therein.

Distinguish between Malicious prosecution and Abuse of Process

(a) In Malicious Prosecution a plaintiff can sue for malicious prosecution when a defendant uses a civil proceeding against the plaintiff when the defendant knows the person doesn’t have a case whereas In Abuse of process a plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed.

(b) In Malicious Prosecution a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is employment of the legal process for some purpose other than that which it was intended by the law to effect the improper use of a regularly issued process.


(a) That he was prosecuted by the Defendant.
(b) Prosecution was instituted without any reasonable and probable cause
(c) Defendant acted maliciously not with mere an intention of carrying the law into effect
(d) Plaintiff suffered damaged as a result of the prosecution.
(e) Proceeding complained of terminated in the of the present plaintiff.

Prosecution by the Defendant _

The first essential element requires the proof of two elements, (a) there was, “prosecution” (b) Prosecution should be instituted by the defendant.

(a) Prosecution 

The word, “Prosecution” means criminal proceedings against a person in a court of law. The essential element which is required to prove by the plaintiff in a suit for damages for malicious prosecution is the plaintiff was prosecuted by the defendant.

(b) Prosecution should be instituted by the defendant

One of the most essential elements in which if a plaintiff is filing a case against defendant in suit for damages for malicious prosecution, the plaintiff has required to prove that defendant prosecuted him without reasonable cause. Reasonable and probable 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, which assuming them to be true would reasonably lead any ordinarily prudent man placed in the position of the accused to the conclusion that the person charged was probably guilty of crime imputed.

(c) Defendant acted maliciously

In suit for damages for malicious prosecution, the plaintiff has to prove that the defendant acted ,maliciously in prosecuting him and not with mere intention of carrying law into effect such as there was malice of some indirect and illegitimate motive in the prosecutor. ‘Malice’ can be defined as the presence of some improper and wrongful motive.

(d) Plaintiff suffered damage

In this, if plaintiff suit for damages for malicious prosecution, it is another important essential in which the plaintiff has suffered damages as a consequence of prosecution complained of and the plaintiff has to prove it. Even though the proceedings terminate in favor of the plaintiff, he may suffer damages as a result of the prosecution.

For the claim of malicious Prosecution, the plaintiff can thus claim damages in the following three counts:
(a) Damage to plaintiff’s property
(b) Damage to plaintiff’s person
(c) Damage to the plaintiff’s reputation

(e)Termination of proceedings in the plaintiff

Termination in favor of the plaintiff does not mean judicial determination of his innocence. The proceedings are deemed to have terminated in favor of the plaintiff when they do not terminate against him. It is also essential that the prosecution terminated in the favor of the plaintiff.

Malicious Civil Proceedings

Unlike malicious criminal prosecution, no action can be brought, as a general rule, 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 vs. Bhalchand Jivraj the essential required to prove in such an action were states as follows_

(a) Malice must be proved
(b) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation.
(c) The plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favor or the process complained of has been superseded or discharged.


It can be concluded that a Malicious Prosecution and, the Abuse Of Legal Proceedings both play an important role in a tort. In Malicious Prosecution proceedings which is initiated with malicious intent. However, based on the facts, circumstances, various law cases and various judgments, the Court should decide whether the suit a file with maliciously or not.

Author: Divya Tripathi,
Shri Ramswaroop Memorial University LLB 3 Year ( 2 Semester)

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