Malicious prosecution consists in instituting unsuccessful criminal, or bankruptcy, or liquidation proceedings, maliciously and without reasonable and probable cause. When such prosecution causes actual damage to the party prosecuted, it is a tort for which he can bring an action.
This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons. The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose [Mohd. Amin v Jogendra Kumar AIR 1947 PC 1081.]
In an action for malicious prosecution the following essentials have to be proved by the plaintiff:
- That he was prosecuted by the defendant;
- The prosecution was instituted without any reasonable and probable cause;
- The defendant acted maliciously and not with a mere intention of carrying the law into effect;
- The proceedings complained of terminated in favour of the present plaintiff;
- The plaintiff suffered damage as a result of the prosecution.
(1) Prosecution by the Defendant
It involve two elements, first that the plaintiff was prosecuted and secondly, that the defendant was the prosecutor. An action not extending to any arrest or seizure of property is not a good cause of action for malicious prosecution howsoever unfounded or malicious it might be.
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.
In Nagendra Nath Rao v Basanta Des Bairagya, ILR (1929)47 Cal 25, after a theft had been committed in the defendant’s house, he informed the police that he suspected the plaintiff for the same. The plaintiff was arrested by the police but was subsequently discharged by the magistrate. In a suit for malicious prosecution it was held that it was not maintainable as there was no prosecution at all because in police proceedings are not the same thing as prosecution.
Prosecution should be made by the defendant. A ‘prosecutor’ is a person who is actively instrumental in putting the law in force for prosecuting another. If I tell a policeman that I have had a particular thing stolen from me and that it was seen in X’s possession and the policeman without any further instructions on my part makes inquiries and arrests, it is not I who have instituted the prosecution. I certainly set the stone rolling but it was a stone of suspicion only. In order that a private person can be termed as ‘prosecutor’ he must’ve done something more than merely lodging the complaint with the police, he must\’ve been actively instrumental in the proceedings and must’ve made his best efforts (e.g. procures false evidence) to see that the plaintiff is convicted for the offence.
An investigating officer is not liable unless he was a party to the falsity of the case. A pathologist preparing a postmortem report or a person appearing merely as a witness cannot be held to be a prosecutor. A malicious reporter to the police for getting a prosecution launched on the basis of his evidence is within the catch of the principle [Martin v Watson (1995)3 All ER 559(HL)].
(2) Absence of Reasonable and Probable Cause
The plaintiff has also to prove that the defendant prosecuted him without reasonable and probable cause. The defendant will be deemed to have made reasonable and probable cause when – (a) he took care to be informed of the facts, (b) he honestly believed his allegation to be true, and (c) the facts were such as to constitute a prim facie case. The prosecutor’s belief should be based on due enquiry.
Reasonable and probable cause means that there are sufficient grounds far thinking that the accused was probably guilty but not that the prosecutor necessarily believed in the probability of conviction. “Probable cause” is not the same thing as “sufficient cause.” The prosecutor should honestly believe in the story on which he acts and in believing in the story he must act like a reasonable prudent man. The test, therefore, is both subjective and objective [Corea v Peiris (1909) AC 549].
The absence of reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused. In Abrath v North Eastern Rly. (1833) 11 QBD 440, one M recovered compensation from the defendant company for personal injuries in a railway collision. Subsequently, the railway company got the information that M’s injuries had been artificially created by Dr. Abrath (M’s surgeon). The directors of the railway company made enquiries and obtained legal advice which suggested that Dr. Abrath should be prosecuted. Dr. Abrath was accordingly sued, but was acquitted. He brought an action for malicious prosecution. The court found that the railway company had taken reasonable care to inform itself of the true facts and they honestly believed in their allegations and, therefore they were held not liable.
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him. However, if a prosecutor honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution [Braj Sunder Deb v Bamder Das AIR 1944 PC 1]. The malice to be established is not ‘malice in law’ such as may be assumed from a wrongful act, done intentionally, without just cause or excuse, but ‘malice in fact’ (males animus) – indicating that the party was actuated either by spite or towards an individual. In England whether there was malice in the defendant is a question of fact for the jury. In India it is a question of law.
Absence of reasonable and probable cause and existence of malice have to be separately proved. From a want of reasonable and probable cause a court may infer malice, but not e contra. However, the absence of reasonable and probable cause is not per se evidence of malice. Conversely, the most express malice will not give a cause of action if reasonable and probable cause existed.
(4) Termination of Proceedings in Favour of Plaintiff
It is also essential that the prosecution terminate in favour of the plaintiff. If the plaintiff has been convicted by the 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. The proceedings terminate in favour of the plaintiff if he has been acquitted on technical grounds, conviction has been quashed, or the prosecution has been discontinued or the accused is discharged. Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal, the plaintiff can sue for malicious prosecution. When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted of a lesser offence, he may still sue for malicious prosecution of the graver offence of which he is acquitted. No action can be brought when prosecution or the proceedings are still pending. In an action for malicious prosecution, the cause of action arises, not on the date of institution of the proceeding complained of, but on the date when the proceeding terminates in favour of the plaintiff.
(5) Damage to the Plaintiff
It has also to be proved that the plaintiff suffered damage as a consequence of the prosecution complained of. Though the prosecution ends in acquittal, the plaintiff may have suffered damage to his person (deprived of his liberty and mental stress), prdperty or reputation by it for which he can claim compensation. Malicious prosecution is one of the torts in which aggravated damages are permissible.
Distinction between False Imprisonment and Malicious Prosecution
(1) False imprisonment is wrongfully restraining the personal liberty of the plaintiff; malicious prosecution is wrongfully setting the criminal law in motion.
(2) In false imprisonment the personal liberty of the plaintiff may have been wrongfully restrained by a private individual or setting a ministerial officer in motion. While in malicious prosecution it is the judicial officer who is set in motion.