Malicious prosecution and certain other malicious processes

Every honest citizen wants protection from begin unnecessarily dragged before a court of law for unjust charges made against him. This will cause him unnecessary vexation, worry, annoyance, inconvenience and expenses, even if he is finally acquitted of the particular charge. In such cases, the law has rightly allowed compensation to injured parties from those who have unjustly set the law in motion. Thus it is an actionable wrong for one to institute certain kinds of legal proceedings against another person maliciously and without reasonable and probable cause. In this matter there is undoubtedly a conflict between two rival principles, both of which rightly require recognition and adoption, viz. the freedom of action that every man should have in bringing criminals to justice and the necessity to check false accusations against innocent persons. The principle is that it is not enough that the defendant starts proceedings in the hope of getting the illegitimate advantage but there must be some overt act demonstrating that improper purpose, such a demand on the plaintiff. The abuse of the effect the improper purpose is the gist of the tort.

      As a rule, actions for malicious prosecution will lie only for criminal proceedings maliciously instituted at the instance of the defendant, but it has been extended to certain other cases as well.

     The chief classes of legal proceedings in which actions for malicious prosecution may be brought are the following:

1.      Malicious criminal prosecution.

2.      Malicious bankruptcy proceedings.

3.      Malicious liquidation proceedings.

4.      Malicious arrest.

5.      Malicious execution against property.

Malicious prosecution

The basis of this action is mainly injury to the character of the plaintiff but it may include injury to person or property as well. The leading basic English decision on the subject is Saville v. Roberts, where the cardinal principles of liability were laid down. Holt, C.J. said: "There are three sorts of damages, any of which would be sufficient ground to support this action. (1) Firstly, the damage to a man's fame, as if the matter whereof he is accused be scandalous. (2) Secondly, damage to his person whereby he is put in danger to lose his life or limb or liberty such as imprisonment, and (3) Thirdly, damage to his property as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused."

     In an action for malicious prosecution the plaintiff must show first that he was prosecuted by the defendants, that is to say, that the law was set in motion against him on a criminal charge. Secondly, that the prosecution was determined in his favour. Thirdly, that it was without reasonable and probable cause and fourth, that it was malicious. The onus of proving every one of these items is on the plaintiff.

     The term "criminal charge" includes all indictments involving either scandal to reputation or the possible loss of liberty to the person. In cases where the proceedings against the plaintiff did not involve any scandal to his reputation or affect his fair name the defendant will not be held liable in an action for malicious prosecution.

      But a change of wrongly pulling the communication cord in a railway train does not necessarily affect the fair name of the accused and will not be a ground for an action for malicious prosecution but charging a person with travelling in a train without paying the fare will make the defendant liable for malicious prosecution.

What is prosecution?

To prosecute is to set the law in motion and there should be evidence that the defendant had been "actively instrumental" in thus setting the law in motion against the plaintiff.

    In India the police have special powers in regard to the investigation of criminal charges and it depends very much on the result of their investigation whether or not further proceedings are to be taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police and the police, without further interference on his part think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. 'But if the charge is false to the knowledge of the complainant and if he misleads the police by bringing suborned witness to support it, it would be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him.

    The law can be said to have been set in motion only when there is an appeal (by the defendant) to some person clothed with judicial authority in regard to the matter in question.

     When the defendant had only preferred a complaint before a judicial officer, who issues summons, makes an inquiry and then discharges the accused, the defendant could not be held liable for malicious prosecution.

      But in a case where A goes before a magistrate and positively asserts that B has committed a crime and thereby induces the magistrate to issue a warrant of arrest against B, A will be liable for malicious prosecution, for his complaint before the magistrate was very much more than a mere narration of facts.

     The person giving information to the police is the real prosecutor. He is liable for malicious prosecution if other ingredients of the tort are satisfied even though at the hearing before the court no evidence was offered and the case was discharged.

     "The following circumstances will make a first informant a prosecutor for the purposes of a suit for damages for malicious prosecution: (1) that the report lodged by him was false to his knowledge; (2) that the informant after the lodging of the first information report had brought false witnesses in support of his report; (3) he had influenced the police in sending up an innocent person for trial before the magistrate; (4) the information was such that naturally led the police to launch the prosecution."

Termination of proceeding in favour of plaintiff

There need not be an acquittal on merits. It is enough for plaintiff in an action for malicious prosecution to show that the prior criminal proceedings terminated in his favour. What the plaintiff requires for his action is not a judicial determination of his guilt. Thus it is enough if the prosecution has been discontinued, or thrown out for some technical default in the charge, or if conviction has been quashed.

     A party who has been convicted will not be permitted to say that his conviction has been the result of fraud and that he did not really deserve the punishment. In Basebe v. Mathews, where the plaintiff alleged that his prior conviction was unjust and had been brought about by influencing the tribunal, the suit was dismissed on the ground that if such actions were allowed then every case would have to be retried on merits and the Judges will be converting themselves into a Court of Appeal which the Legislature did not provide for. The convicted person will not be allowed to do indirectly what he cannot do directly.

Absence of reasonable and probable cause

The plaintiff in an action for malicious prosecution can succeed only if he proves that the defendant had no reasonable and probable cause to believe that the plaintiff had committed the crime and thus had no justification whatsoever to launch the prior criminal prosecution against the plaintiff. Reasonable and probable cause means a genuine belief based on reasonable grounds that the probability of the guilt of the accused was sufficient to render a prosecution by reference to the facts actually known to the defendant  and not to the facts that actually existed. Thus it is not open to the defendant to contend that the time he launched the prosecution against the plaintiff, there were facts, which though unknown to him, would have justified the proceedings. Conversely, the existence of facts unknown to the plaintiff which would have made the prosecution unjustifiable will not make the defendant liable if on the facts known to him there was reasonable ground to believe that the plaintiff had committed the crime.

      The existence of reasonable and probable cause is a question for the Judge and not for the jury. But it is for the latter to decide the truth or otherwise of the preliminary questions of the facts upon which the defendant is supposed to have based his belief. For example, if the defendant alleges that he prosecuted the plaintiff because of certain information he received from X, it is for the jury to say whether that information had actually been received from X and it is for the Judge to decide whether, if it was so received and believed, it constituted a reasonable ground for the prosecution.

Leasing English decisions

    Abrath v. N.E. Rly. Co. - Abrath was the medical adviser of M who recovered a large sum as damages for injuries sustained by him on the railway. Later, the railway company ascertained facts which they laid before their counsel who advised that both Abrath and M should be prosecuted for conspiracy to defraud the company. Accordingly the company prosecuted them. But finally Abrath was acquitted and thereafter he brought an action for malicious prosecution against the company. The company was held not liable as they had reasonable and probable cause to believe that the plaintiff had conspired to defraud them.

   Herniman v. Smith.- This is a decision of the House of Lords, where their Lordships approved Abrath case (supra). In Herniman v. Smith,a timber merchant had supplied timber from time to time to a builder. On several of those occasions, delivers of timber were made accompanied by fraudulent documents, which induced the builder to pay to the timber merchant money to which the latter was not entitled. The builder preferred against the timber merchant a charge of having unlawfully and knowingly conspired with one R to cheat and defraud the builder. At the trial the timber merchant was found guilty and sentences to imprisonment. But in the Court of Criminal Appeal the conviction was quashed. Then the timber merchant brought an action against the builder for malicious prosecution. The latter was held not liable by the House of Lords. Their lordships said that in the circumstances there was reasonable and probable cause for a prosecution and it was the function of a Judge to decide whether the proved facts amounted to a reasonable and probable cause or not. Lord Atkin said: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence but whether there is a reasonable and probable cause for a prosecution." Reasonable and probable cause was defined "as an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary, prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the imputed".


In the tort of malicious prosecution malice means the presence of some improper and wrongful motive, i.e., some motive other than a desire to bring to justice a person whom the prosecutor honestly believes to be guilty. If a person is prosecuted by you for theft, not because you believe him to be guilty but in order to deter other people from committing depredation on your property, then it will be malice on your part. Malice will be inferred unless the predominant wish of the accuser is to vindicate the law. Malice and absence of reasonable and probable cause must unite in order to produce liability.

     We have already seen that though, as a rule, the action for malicious prosecution lies only for criminal proceedings, it has been applied for malicious bankruptcy and liquidation proceedings, malicious arrest and malicious execution against property.

     "Prosecution" carries a wider sense and does not mean prosecution in a criminal court only. It means prosecution which may not be of a criminal nature but is such as would cause any slur or odium upon the good name of the plaintiff and an action for damages lies if the other essentials of "malicious prosecution" are made out.

      Lack of reasonable and probable cause is to be understood objectively: it does not connect the subjective attitude of the accuser. The fact that the accuser himself thinks that it reasonable to prosecute does not per se lead to the conclusion that, judicially speaking, he had reasonable and probable cause for launching or prosecuting the proceedings. The test appears to be as to whether there was reasonable or probable cause for any discreet man to make the charge complained of . Mere circumstances of suspicion cannot be said to be reasonable or probable cause. The belief of the accuser in the charge which he is levelling must be based on grounds which, or some of which, are reasonable and arrived at after due inquiry. It is, therefore, required that he should have taken some step to satisfy himself that there is reasonable or probable cause before he makes the accusation. On the facts of the case it is determined whether the defendant had acted with malice and without reasonable cause.