Malicious Prosecution under the Law of Torts

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Malicious Prosecution under the Law of Torts

Malicious prosecution under the law of torts is a legal concept that involves the initiation of false criminal, bankruptcy, or liquidation proceedings against an individual with malicious intent and without any reasonable grounds.

This article provides a comprehensive analysis of the essential components of malicious prosecution, its application in civil proceedings, and the defenses available against it.

Essential Components of Malicious Prosecution

To establish a case of malicious prosecution, several key elements must be proven by the plaintiff. These elements are crucial for establishing liability in such cases:

The Institution of False Proceedings:

The defendant must have initiated false proceedings against the plaintiff. These proceedings could be criminal, bankruptcy, or liquidation in nature.

The term ‘prosecution’ encompasses not only formal trials but also arbitrary actions taken by the defendant. This definition has been established through legal precedents.

Disciplinary actions by an authority are not considered as prosecution by a judicial authority and cannot be subjected to a malicious prosecution suit.

Prosecution cannot be said to have begun when a complaint is made before an executive authority.

Presence of Malice and Lack of Reasonableness:

  • Malice refers to the intention of the defendant while instituting the proceedings against the plaintiff. Malicious intent should be determined based on a factual and evidential basis.
  • Malice is not limited to ill feelings or hatred but also covers any improper cause that could result in wrongful harm to the plaintiff.
  • The assessment of malice should be made from the perspective of a reasonable person.
  • Even if the defendant initially had no knowledge of the plaintiff’s innocence, malice can be established if the defendant continues with false proceedings after learning of the plaintiff’s innocence.
  • If, at any point, the complaint was reasonable and probable based on the defendant’s belief in the plaintiff’s wrongdoing, no suit for malicious prosecution can be initiated.

Termination of Prosecution in Plaintiff’s Favor

  • A case of malicious prosecution can only be pursued if the proceedings terminate in favor of the plaintiff. This can be through the plaintiff’s acquittal or the suspension of further proceedings.
  • Termination in favor of the plaintiff does not necessarily prove the plaintiff’s innocence but indicates that they have not been convicted of the charges brought against them.
  • There are exceptions to this requirement, such as when the plaintiff and defendant reach a settlement resulting in the withdrawal of allegations or in the case of a plea bargain in criminal proceedings.

Damages Resulting from Wrongful Prosecution

  • The plaintiff must have suffered harm or injury as a result of the wrongful prosecution, and these damages must be foreseeable and not extremely remote.
  • Damages can fall into several categories, including harm to the plaintiff’s reputation, harm to the plaintiff’s body or liberty, and harm to the plaintiff’s property.
  • Damages for harm to reputation can be sought when the suit has tainted the plaintiff’s reputation in the eyes of society through baseless allegations.
  • Damages for harm to the plaintiff’s body or liberty can be claimed when the proceedings have caused physical or psychological harm or fear of injury.
  • Damages for harm to the plaintiff’s property can include the expenses incurred by the plaintiff to defend themselves against the baseless charges.

Distinction Between Malicious Prosecution and Abuse of Power:

It is essential to distinguish between malicious prosecution and abuse of power to determine liability. This distinction was elucidated in the case of West Bengal State Electricity Board v. Dilip Kumar Ray, where the Supreme Court of India explained the difference between the two:

Malicious prosecution involves the initiation of legal proceedings with malice, while abuse of power refers to using legal processes for a purpose other than their intended one.

Defences Against Malicious Prosecution

There are defences available to the defendant in a malicious prosecution suit:

Plaintiff at Fault:

If the proceedings result in the plaintiff’s conviction, based on their guilt of the charges, the plaintiff loses the right to sue the defendant. The only remedy available to the plaintiff in this case is to appeal against the verdict.

Defendant’s Privilege:

The defendant may be in possession of a privilege, such as judicial or statutory immunity, which can serve as a defense against a malicious prosecution claim.


The concept of malicious prosecution under the law of torts serves two important purposes. First, it allows a plaintiff to seek legal recourse against a defendant who has wrongfully initiated legal proceedings without reasonable cause. Second, it serves to protect an individual’s liberty and reputation by creating a deterrent effect on wrongdoers. This protection aligns with the fundamental rights enshrined in the Constitution of India and ensures that justice prevails in cases of malicious prosecution.

Frequently asked questions

What is malicious prosecution in simple terms?

Malicious prosecution is a legal concept where someone initiates false legal proceedings against another person with malicious intent, without any reasonable cause.

What constitutes “malice” in a malicious prosecution case?

Malice goes beyond mere ill feelings or hatred. It includes any improper motive or intent to cause wrongful harm to the plaintiff. It can also involve actions taken to gain an advantage or leverage.

What types of damages can a plaintiff seek in a malicious prosecution case?

A plaintiff can seek damages for harm to their reputation, harm to their body or liberty (physical or psychological harm), and harm to their property, such as the expenses incurred to defend themselves.

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