Tort of Malicious Prosecution and other Malicious proceedings

Introduction : 

The most important aspect of a person’s life is his, life, liberty, and reputation. The concept of malicious prosecution safeguards all three of them by effectively protecting the person from unwanted and maliciously instituted proceedings. The origin of this concept in effect came from the abuse of the judicial process.

The concept of malicious prosecution plays the distinguishing role between the right of the person to move the law into motion and the corresponding right of being free from the harassment of a malicious legal proceeding. The philosophy behind the concept of malicious prosecution aims to achieve a dual purpose. First, it acts as a remedy for the wrong done to the person due to maliciously instituted legal proceedings., while doing this it also achieves its second purpose I.e to discourage people from instituting malicious proceedings.

Meaning of Malicious prosecution :

The term ‘malice’ in common parlance means ill will against a person. In a legal sense, it refers to a wrongful act done intentionally without just cause or excuse. And the term prosecution means a proceeding in a court of law charging a person with a crime. Malicious prosecution is common law intentional tort that causes damage through the abuse of the process of the courts of law. It is defined as a judicial proceeding instituted by a person against another from a wrongful or improper motive, without any reasonable and probable cause to justify it.

The court in the case of West Bengal State Electricity Board v. Dilip Kumar Ray defined the term malicious prosecution as “ a judicial proceeding instituted by one person against another from wrongful or improper motive and without probable cause to sustain it.”

Elements of malicious prosecution :

In an action for malicious prosecution plaintiffs must prove the following elements :

1. Prosecution by the defendant:

This essential ingredient requires proof of two elements. Firstly that there was the prosecution and secondly the same was instituted by the defendant.

  1. Prosecution: the prosecution should be criminal prosecution rather than a civil action. Prosecution means criminal proceedings against a person in a court of law. A prosecution is there when a criminal charge is made before a judicial officer or a tribunal.
  2. The prosecution should be instituted by the defendant: a prosecutor is a man who is actively instrumental in putting the law in force of prosecuting another although criminal proceedings are conducted in the name of the state for malicious prosecution a prosecutor is a person who instigates the proceedings.

2. Absence of reasonable and probable cause :

In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the defendant prosecuted him without reasonable and probable cause.

3. Defendant acted maliciously :

Another essential element which the plaintiff is required to prove is that the defendant acted maliciously in prosecuting him and with a mere intention of carrying the law into effect, malice need not be a feeling of enmity, spite or ill-will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor such as to gain a private collateral advantage.

4. Termination of proceedings in favor of the plaintiff:

It is also essential that the prosecution terminates in favor of the plaintiff. If the plaintiff has been convicted by a court, he cannot bring an action for malicious prosecution, even though he can prove his innocence and also that the accusation was malicious and unfounded.

5. Damages :

Malicious prosecution is one of the torts in which aggravated damages are permissible by taking into consideration the motives and conduct of the defendant and injury to the plaintiff. In an action for malicious prosecution, damages can be claimed under three heads

  1. Damage to reputation.
  2. Damage to a person and
  3. Damage to property including any legitimate expenses incurred by the plaintiff for defending himself in a criminal case.

Other Malicious proceedings: 

Other malicious proceedings include malicious arrest, malicious bankruptcy, abuse of legal process, malicious falsehood, and malicious search, etc.

1. Malicious Abuse of legal process :

It refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. Abuse of process includes litigation actions in bad faith that are meant to delay the delivery of justice.

2. Malicious Search: 

An action that lies for maliciously procuring a house search, has been recognized to be an actionable wrong to procure the issue of a search warrant without reasonable and probable cause and with malice.

3. Malicious Arrest :

It is maliciously putting the law in motion to effect the arrest of another, under judicial process without reasonable and probable cause. Malicious prosecution can become ground for an action for abuse of process or malicious prosecution.

4. Malicious Bankruptcy:

It is the abuse of the bankruptcy process whereby a person wrongfully petitions to have another person adjudicate a bankrupt or to have a company wound up as insolvent.

5. Malicious Falsehood:

Malicious falsehood consists of making malicious statements concerning the plaintiff to some third person unfavorably affecting the pecuniary interests of the plaintiff. This wrong is similar to that of defamation because in this case as in defamation, a statement made to a third person causes damage to the plaintiff. However the two wrongs are different, in defamation malice in the sense of an evil motive is not necessary, but for the wrong of falsehood, an evil motive is one of the essential ingredients.

6. Malicious Mischief:

Malicious mischief means the intentional destroying or damaging of the personal property of another from actual ill-will or resentment towards its owner or possessor.

Conclusion :

It can be said that malicious proceedings are that proceedings initiated with malicious intent. The elements such as prosecution by the defendant, absence of reasonable and probable cause, defendant acted maliciously, etc are necessary for the plaintiff to prove in a suit for damages for malicious prosecution and for other malicious proceedings malice in the sense of evil motive is necessary. However, based on the facts and circumstances of the case the court should decide whether the suit is filed maliciously or not.



Author: Naveen Talawar,
student at Karnataka state law university's law school

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