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Malacious Prosecution under Tort

In tort law, the concept of malicious prosecution holds significant weight, embodying the principle of seeking redress for wrongful or improper motives behind judicial proceedings. The term "malicious prosecution" encompasses a judicial action initiated without probable cause and driven by wrongful intent. 

Malacious prosecution tort in India

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The Apex Court, in the case of West Bengal State Electricity Board v. Dilip Kumar Ray, elucidated two pivotal elements essential for constituting a malicious prosecution. These elements include the absence of probable cause for instituting the prosecution or suit and the favorable termination of such prosecution or suit for Malacious Prosecution under Tort for the defendant.

Moreover, the court delineated the distinction between an action for malicious prosecution and abuse of process. While malicious prosecution of tort entails the malicious issuance of legal process, abuse of process involves the improper use of legal process for purposes divergent from its intended effect under the law. The court clarified that vexatious civil proceedings lacking in substance are subject to the same rules as malicious prosecutions in criminal proceedings.

In a pertinent case, an employee of the Board faced disciplinary actions and an FIR alleging misconduct and various offenses. Subsequently, upon delay in issuing a charge-sheet, the employee sought intervention from the High Court to quash the disciplinary proceedings. Despite the issuance of a charge-sheet and an inquiry initiated thereafter, the Board opted to discontinue the case, ultimately revoking the employee's suspension orders.

Subsequent to these events, the employee filed a suit in the Court of Assistant District Judge, seeking damages against the Board and a newspaper for the institution of disciplinary proceedings and alleged defamatory publications, respectively. The trial court ruled in favor of the employee, citing the probability of extraneous reasons behind the suspension and awarded damages for harassment and loss of reputation.

However, upon appeal by the Board, the High Court upheld the damages awarded for harassment, deeming them as damages for malicious prosecution causing mental anguish. Despite this interpretation, the Apex Court intervened, criticizing the High Court's conclusion as perplexing, contradictory, and lacking coherence. Consequently, the Apex Court overturned the High Court's order, dismissing the damages awarded for malicious prosecution.

This case underscores the nuanced application of malicious prosecution tort principles in legal proceedings. It highlights the necessity for clarity and coherence in judicial interpretations to ensure equitable dispensation of justice. As such, the Apex Court's intervention serves as a reminder of the meticulous scrutiny required in adjudicating claims of malicious prosecution, safeguarding against erroneous conclusions and upholding the integrity of legal processes.


The legal doctrine of malicious prosecution is founded upon the principle that legal proceedings initiated from malicious intent, rather than in pursuit of justice, constitute a tortious act. The Apex Court, in its rulings, clarified that the burden of proof lies upon the individual prosecuted to demonstrate the lack of honest or reasonable action on the part of the prosecutor. 

Failure to establish specific averments in the plaint regarding the malicious nature of the proceedings results in the determination that malicious prosecution did not occur.

In an action for malicious prosecution, the plaintiff bears the burden of proving several key elements.

  1. Firstly, they must demonstrate their innocence, confirmed by the tribunal overseeing the accusation. 

  2. Secondly, they must establish the absence of reasonable and probable cause for the prosecution, indicating circumstances inconsistent with such cause. 

  3. Lastly, they must prove that the proceedings were initiated with malicious intent, serving an indirect and improper motive rather than the pursuit of justice.

To succeed in a suit for damages arising from malicious prosecution, the plaintiff must establish certain essentials.

  1. Firstly, they must show that they were prosecuted by the defendant.

  2. Secondly, they must demonstrate that the prosecution lacked reasonable and probable cause. 

Additionally, they must prove that the defendant acted with malice, not merely intending to uphold the law. Furthermore, it must be shown that the proceedings terminated in favor of the plaintiff and that they suffered damage as a result of the prosecution.


The requirement that prosecution must be instituted by the defendant is a fundamental element in claims of malicious prosecution. A prosecutor is considered as someone actively involved in initiating legal proceedings against another individual. Despite criminal proceedings being conducted in the name of the State, for the purpose of establishing malicious prosecution, the prosecutor is typically the individual who instigates the proceedings.

This principle was highlighted in Balbhaddar v. Badri Sah, where the Privy Council emphasized that actions for malicious prosecution can be pursued against private individuals who provide information to authorities leading to prosecution. 

Merely giving information to the police, even if false, does not automatically give rise to a cause of action for malicious prosecution unless the individual can be proven to be the real prosecutor, actively participating in and primarily responsible for the prosecution.

In Dattatraya Pandurang Datar v. Hari Keshav, the court ruled that merely lodging an FIR with the police does not constitute prosecution if the defendant did not actively participate in the subsequent proceedings. 

Similarly, in Pannalal v. Shrikrishna, the court held that liability for malicious prosecution cannot be attributed to individuals who only provided information to the police without actively participating in the prosecution.

The conduct of the complainant before and after making the complaint is crucial in determining whether they are the real prosecutor. As elucidated by the Privy Council in Gaya Prasad v. Bhagat Singh, if the complainant knowingly provides false information or tries to mislead the police by procuring false evidence, they can be considered the prosecutor and held liable for malicious prosecution.

In T.S. Bhatta v. A.K. Bhatta, the defendant's active involvement in various stages of legal proceedings, including moving for revision and appearing as a witness, established their role as the real prosecutor, rendering them liable for malicious prosecution tort.


The commencement of prosecution, crucial in determining the viability of a claim for malicious prosecution, occurs when a person is summoned to answer a complaint before a judicial authority. In legal precedent, it's established that the mere lodging of an FIR or bringing a matter before executive authority does not signify the commencement of prosecution.

In the case of Khagendra Nath v. Jabob Chandra, the plaintiff was accused of wrongfully taking a bullock cart belonging to the defendant, leading to the lodging of an FIR. However, no formal prosecution ensued as the plaintiff was neither arrested nor prosecuted. The court ruled that merely bringing the matter before executive authority did not constitute prosecution, rendering the action for malicious prosecution unsustainable.

Therefore, for a claim of malicious prosecution to be viable, it is imperative that the prosecution has commenced through the issuance of a summons by a judicial authority.


The distinction between proceedings before quasi-judicial authorities and formal judicial prosecution plays a crucial role in determining claims for malicious prosecution, as illustrated in several legal precedents.

In the case of Kapoor Chand v. Jagdish Chand, the Punjab and Haryana High Court ruled that proceedings before the Board of Ayurvedic and Unani System of Medicines, Punjab amounted to prosecution. Here, the appellant falsely accused the respondent, a practicing Hakim, of obtaining qualifications through fraudulent means. 

However, upon investigation, the Board confirmed the respondent's qualifications and authorized him to practice. In a subsequent action for malicious prosecution, the court held that the respondent was entitled to claim compensation, recognizing the proceedings before the Board as tantamount to prosecution.

Conversely, in D.N. Bandopadhyaya v. Union of India, the Rajasthan High Court determined that departmental inquiries by disciplinary authorities did not constitute prosecution. In this case, the plaintiff, a Way Inspector with the railway, faced disciplinary action following an inquiry into a train derailment. Despite the disciplinary authority's decision being overturned in a writ petition, the court held that the disciplinary proceedings did not amount to prosecution. It reasoned that disciplinary authorities functioned in a quasi-judicial capacity rather than as formal judicial bodies.

The decision of the Punjab & Haryana High Court in Kapoor Chand v. Jagdish Chand is perceived as more logical, acknowledging the impact of such proceedings on individuals and allowing them recourse through claims for compensation.


In claims of malicious prosecution, the plaintiff must establish that the defendant prosecuted them without reasonable and probable cause, a critical element of the case. Reasonable and probable cause is defined as an honest belief in the guilt of the accused, founded upon reasonable grounds and circumstances that would lead an ordinarily prudent person to conclude the accused was likely guilty of the imputed crime.

In Shiv Shankar Patel v. Smt. Phulki Bai, a prosecution ended in acquittal after eight years, and it was found to have been initiated with wrongful intentions rather than a genuine pursuit of justice, leading to compensation for the suffering endured by the respondents.

Similarly, in State of Tripura v. Haradhan Chowdhury, the plaintiff, a reputed timber merchant, was arrested based on false allegations by the appellant, leading to his discharge due to lack of credible evidence. The court awarded damages for malicious prosecution, emphasizing the mala fide nature of the prosecution.

Moreover, in cases like Ashwani Kumar v. Satpal, where the defendant lodged a prosecution against the plaintiff knowing the accusation was false, the court held the defendant liable for malicious prosecution. It was observed that launching criminal proceedings solely for settling personal scores, without reasonable cause, is unjustifiable and warrants compensation for damages incurred by the plaintiff.

However, establishing lack of reasonable and probable cause is not straightforward. Advice from competent legal counsel can serve as a defense, presuming the defendant had reasonable grounds to initiate the prosecution. Yet, if the defendant misleads their lawyer with false information, as seen in Smt. Manijeh v. Sohrab Peshottam Kotwal, this defense may not hold, and liability for malicious prosecution may be established.

Importantly, the absence of reasonable and probable cause cannot be inferred solely from dismissal or acquittal of the accused. The burden of proof lies on the plaintiff to demonstrate this absence, except in exceptional cases where the circumstances indicate the prosecutor must have known the innocence of the accused. In such situations, the burden shifts to the defendant to prove the presence of reasonable and probable cause, thereby potentially avoiding liability for malicious prosecution.


Malice, in the context of malicious prosecution claims, refers to an improper and wrongful motive behind initiating legal proceedings against the plaintiff. It denotes an intention to misuse the legal process for purposes other than those intended by law, such as harassing the plaintiff or gaining a collateral advantage. Contrary to common belief, malice does not necessarily entail personal spite or ill will but encompasses any intent to violate the law to the detriment of another.

Proving malice requires demonstrating that the prosecution was initiated with an oblique motive, rather than a genuine pursuit of justice. This means showing that the defendant's primary aim was not to uphold the law but to harm the plaintiff unjustly. Malice can manifest in various forms, including haste, recklessness, failure to conduct proper inquiries, a spirit of retaliation, or a history of enmity between the parties involved.

Importantly, malice must be established separately from the absence of reasonable and probable cause. While the lack of reasonable cause may indicate negligence or carelessness on the part of the defendant, it does not automatically imply malice. Similarly, the presence of malice does not necessarily mean there was no reasonable cause for prosecution. Malicious motives can coexist with a genuine belief in the guilt of the accused, highlighting the need to assess each aspect independently.

Furthermore, the mere fact of the plaintiff's acquittal does not serve as evidence of malice. While an acquittal may suggest that the prosecution lacked merit, it does not conclusively prove malicious intent on the part of the defendant. However, if the defendant continues to pursue the prosecution despite obtaining positive knowledge of the accused's innocence, this can be considered malicious behavior.

In cases where the accusation against the plaintiff results in an acquittal, there is a presumption of innocence, and it is incumbent upon the defendant to prove the presence of reasonable and probable cause for the accusation. This shifts the burden of proof onto the defendant, requiring them to demonstrate the legitimacy of their actions.


In claims of malicious prosecution, termination of proceedings in favor of the plaintiff is a crucial element that must be established. This termination does not necessarily mean a judicial determination of innocence but rather the absence of a judicial determination of guilt. It occurs when the proceedings do not end against the plaintiff, such as when there is an acquittal on a technicality, a quashed conviction, a discontinued prosecution, or a discharge of the accused.

However, if a plaintiff has been convicted by a court, they cannot bring an action for malicious prosecution, even if they can prove their innocence and that the accusation was malicious and unfounded. The legal principle is that termination in favor of the plaintiff means the proceedings have ended without a determination of guilt, regardless of whether innocence has been proven.

In cases where the prosecution results in conviction at a lower level but is reversed on appeal, there may be a question regarding the viability of an action for malicious prosecution. Initially, the position in Reynolds v. Kennedy held that the original conviction acted as a bar to such an action, rendering subsequent reversal on appeal ineffective. However, this position has been challenged by subsequent decisions, suggesting that if proceedings terminate in favor of the plaintiff on appeal, a cause of action for malicious prosecution may exist.

Mere acquittal does not prove malice or the absence of reasonable and probable cause for the prosecution. The burden of proof lies with the plaintiff to demonstrate malice and lack of reasonable and probable cause.

In cases like Sugan Kanwar v. Rakesh, where the criminal court acquitted the plaintiff due to lack of evidence, the court emphasized that the mere acquittal does not necessarily imply baselessness or malice in the prosecution. 

Similarly, in Ram Lal v. Mahender Singh, the Rajasthan High Court dismissed a suit for malicious prosecution, stating that the burden lies with the plaintiff to prove malice and intent to harass or defame, even if the criminal trial resulted in acquittal.

Moreover, when government agencies act in good faith in the performance of their official duties, they cannot be held liable for malicious prosecution.

In State of Tripura v. Ranjit Kumar Debnath, the court held that competent officers, including those from the Border Security Force (B.S.F.), participating in official duties on specific information, were not liable for compensation in a suit for malicious prosecution, as there was no malice in their actions.


In claims of malicious prosecution, it's imperative for the plaintiff to establish that they have suffered damages as a consequence of the prosecution. While the termination of proceedings in favor of the plaintiff is crucial, damage is the essence of the action. Damage may manifest in various forms, including harm to reputation, person, and property.

  • Damage to reputation is inherent in false criminal charges. Being accused of a criminal offense tarnishes one's reputation and can have long-lasting effects on their standing in society.

  • Additionally, damage to the person occurs when an individual is arrested, detained, or subjected to mental stress due to the prosecution. This can result in significant emotional distress and harm to the individual's well-being.

Moreover, there can be financial damage associated with malicious prosecution. Defending oneself against criminal charges often entails substantial legal expenses, which can impose a financial burden on the plaintiff. Expenses incurred for legal representation, court fees, and other related costs contribute to the overall damage suffered by the plaintiff.

However, the failure of the prosecution does not automatically imply damage to reputation. In cases where the plaintiff's reputation remains intact despite the failed prosecution, the court may not award damages for reputation-related harm. For example, in Wiffen v. Bailey Romfort U.D.C., the plaintiff's failure to comply with a notice did not damage his reputation despite being prosecuted, leading to the dismissal of the claim for malicious prosecution.

Nevertheless, in instances where the prosecution results in humiliation, physical harm, or significant financial loss, the plaintiff may be entitled to compensation. In Sova Rani Dutta v. Debabrata Dutta, the defendant's false FIR led to the plaintiff's handcuffing by the police, resulting in humiliation and emotional distress. In such cases, where the plaintiff can demonstrate tangible harm suffered as a direct consequence of the malicious prosecution, they may be awarded damages.

To Sum Up

To successfully establish a claim for malicious prosecution, the plaintiff must demonstrate the absence of reasonable and probable cause for the prosecution, the presence of malice on the part of the defendant, termination of proceedings in favor of the plaintiff, and the existence of damages resulting from the prosecution.

  • Malice, refers to the improper motive behind the prosecution, indicating an intent to use the legal process for wrongful purposes rather than seeking justice.

  • Furthermore, termination of proceedings in favor of the plaintiff is essential, whether through acquittal, discharge, or discontinuance of the prosecution.

Finally, damages resulting from the malicious prosecution encompass harm to reputation, person, and property. These damages serve as the foundation for assessing the compensation owed to the plaintiff for the injuries endured due to the wrongful prosecution.

Sources: -

  1. Law of Tort by Bangia

  2. Law of Tort by PSA Pillai

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