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Author: R.B.Sneha, II year of B.B.A.,LL.B. from Symbiosis Law School, Hyderabad


“Tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests (under certain conditions), honour, reputation, and privacy”[1]. Tort is a latin word that is derived from the the word “tortum” it means to twist.

Malicious prosecution means mischievous prosecution against the another person for being prosecuted without any reasonable or probable cause that may cause the other defending party loss of their privilege, financial and reputation. There are many jurist who explained about malicious prosecution. “Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons.”[2] In this offence the primary motive of the person committing the offence is for their selfishness they want to file a false suit on other without any reasonable cause.In Malicious Prosecution it is the duty of the plaintiff to prove that the reasonable cause was not present and the reasonable ground is not satisfied only then the damages can be recovered from the defendant.

Example:- When Hari tells Shyam (the police officer) to arrest Raju, but Shyam mistakes and arrest Ram instead of Raju. Hari tells Shyam to arrest even after knowing that Shyam is not arresting Raju. In this case Hari will be held liable for committing the offence of malicious prosecution.

What are the reasons that amounts to malicious Prosecution

  • When a person is preparing an incorrect or a false documents and records and submitting it to the judicial proceedings.

  • When bringing any instituted false criminal proceeding or any false charges against someone.

  • Destroying all the important evidence in order not let the judicial know about the evidence and escape from the particular case.

  • Making a person to commit trial acting or confinement to the contrary to law.

There will be compensation provided to the plaintiff when they go through Malicious prosecution but they need to prove on these following

  • That the defendant had done malicious prosecution against the plaintiff

  • That the present suit for the malicious prosecution is in the favour go the plaintiff

  • That the malicious prosecution was instituted with any reasonable or probable cause

  • The defendant had the malicious intention

  • The damage that the plaintiff has suffered to his property or their reputation or safety of a person.

The ingredients of Malicious Prosecution

  • The plaintiff in the case should be prosecuted

  • The defendant should be the prosecuted where the plaintiff has been prosecuted because of him

Related cases

Ram v. Madan Gupta[3] in this case the defendant falsely charged that plaintiff set fire in his house. Then they found that the plaintiff was innocent in this case and the defendant deliberately put the blame on the plaintiff. The plaintiff was awarded for his damages Rs:- 55,000 for loss of his privilege, financial loss and reputation.

Vishweshwar Shankarrao Deshmukh and Anr v. Narayan VithobaPatil[4], in this case the defendant filed a false complaint against the plaintiff that he was assaulting him when the defendant was performing his duty. The police then arrested the plaintiff and he was prosecuted for the charges of the false FIR. The court found that the plaintiff were innocent and they held the defendants liable for the malicious prosecution. The court made defendants compensate to plaintiff Rs.12500 for the loss of loss of his privilege, financial loss and reputation.

Research objective

  • To understand the concept of malicious prosecution

  • To know the elements of the malicious prosecution that is required by the plaintiff to prove for the damages of the suit.

  • To analyse the Remedies and Defences that is available for Malicious Prosecution

  • To examine malicious prosecution in India

Research Question

  • What the the history of malicious Prosecution?

  • What is the difference between Malice and Malicious Prosecution ?

  • Who will be liable for the malicious prosecution

  • What is the probable and reasonable cause involved in Malicious prosecution?

Literature Review

In the study while researcher doing her Preliminary study she has found that there isn’t any article or researcher paper regarding the west Bengal case but they researcher has found various literature works about Malicious Prosecution.

  • law of torts[5]:- In this book the author has explained about malicious prosecution by referring to various Indian and English case laws. The author has also stated about what are the Intentions that is being Malicious prosecution and what are the damages because of it. This book is a very descriptive book where all the information has been displayed briefly. The author has explained detailed about the 5 essentials of the malicious prosecution. “Law of tort”[6] in this book the author has explained about malicious prosecution the malicious process that is involved with it by using various Indian and English case law. The author also mention five legal proceeding that will be used when there is malicious prosecution. Lastly the author also explained about malice that it means when there is a wrongful or improper motive to cause damage to the other.

  • Malice as an Ingredient of tort liability[7] this article is about malice and it stated the four torts that the malice is involved and the author draws conclusion between tort liabilities and malice.the author also stated that detailed explanation about Malice with the case.

  • Law of Defamation and Malicious Prosecution[8], this is an other book that explains about malicious prosecution and it is very descriptive and the also also stated c\various definition of malicious prosecution from various jurists. This really helped the researcher to analysis well on prosecution and the case.

Malicious Prosecution and judicial interpretation with India and English Case laws

The Evolution of Malicious Prosecution

The malicious prosecution has been evolved over ages ago and it was origin in English over the eighteenth and nineteenth century , this was an outcome of people missing the procedure of law in England . There were a lot of criminal proceeding where people were misusing the law for their own personal joy so because of this the malicious prosecution was evolved. Later it stated to spread to other countries around the world and this has become common wealth to the countries. “Malicious prosecution has also caught a very strong footing in the United States, probably because they hold the persons liberty and reputation in the highest regard. The American Courts have been liberal in interpreting the concept and it has thus established a strong existence in their legal eco system.”[9]

Who will be liable for the malicious prosecution?

“The settled law in India is that the defendant is liable as prosecutor, if he filed a complaint himself or through his agent or advocate or, if the prosecution was by the police of the State, at his instance and on his information”[10]. The actual prosecutor will be not be liable for malicious prosecution because the police who is investigating the case will also be responsible equally has he will be knowing that he is constituting the case that is a malicious case. Also the witness will also be liable in the proceedings of the prosecution. The victim will be the person who will be getting claim for the damages that is caused by the defendant. If there is any statement that is made by the defendant in the investigation that suggests the witness names in the prosecution that has been examined, then it cannot be said that the defendant has influences the case against the witness.

Case laws

  • A.Akkuliya v. Mattibu venataswami Naidu[11], in this case the madras of High Court held that the proceeding are under Section 145 of the criminal Procedure code, when there is prosecution then the can be suit filed for damages and malicious prosecution would lie.

  • Abarth vs north eastern railway[12] in this case this was about a medical advisor who has recovered a huge amount of damages that is caused by the railways. After that the railways company ascertained certain facts before the council that Abarth and the other person have prosecuted a fraud to the company. The court held that Abarth was not prosecuted and he was acquitted. Abarth took an action against the company and filed for malicious Prosecution but the court held that the company is not liable has there was a probable and reasonable cause.

  • S.T. Sahib v. Hasan Ghani[13] in this case the court held that the malicious prosecution was a similar law in the England, on this subject the same is same as the USA and England.

  • Madan Mohan Singh v. Bhrigunath Singh[14] this case was about the person who got jail punishment for almost 40 days because he was charged for dacoity, but there was no congizance taken according to the offence so the judge stated that there was an prosecution act for the purpose of the action of malicious prosecution.

Essential Elements of Malicious Prosecution

1. The Malicious Prosecution is done by the Defendant:- this is a very essential element where the plaintiff should prove that the defendant has the malicious prosecution act in the suit for the damages. “Musa Yakum v. Manilal”[15]in this case the court held that the defendant had no excuse that he has done the malicious prosecution act under the order of the court, if the defendant moved the court for his false evidence for an order.

2. When there is absence of the Probable and Reasonable cause:- when there is a need for a suit of damages by the plaintiff, the plaintiff should also prove that defendant has dome prosecution act without a probable and reasonable cause. A reasonable and probable cause will not be admissible once the prosecutor wishes to prosecute by ignoring that cause. If a prosecution is not carried out or if a prosecution acquits the accused of all charges, there can be no interpretation made on the existence or absence of reasonable and probable cause that resulted in such a decision.If an accused formally accepts several charges, allegations or accusations against him wherein some charges consist of a probable cause and some others don't, he will still be liable for malicious prosecution.

3. The act of the Defendant was maliciously:- when there is a need for a suit of damages by the plaintiff, the plaintiff is also required to prove that the defendant has acted maliciously while prosecuting him and he didn’t have the intention to carry the law into effect. Malice is not done with the feeling of vengeance or enmity but the purpose of malicious can be improper for the prosecutor to gain a beneficial advantage. “Bank of India v. Lekshmi Das”[16] in this case the court held that in the Malice act should be proved that there is absence of the Probable and Reasonable cause. In certain cases it is not necessary that from the start of the prosecution the defendant should have acted malicious prosecution. When the prosecutor is innocent in the starting and then when he becomes malicious then the action of the malicious prosecution becomes a lie.

4. The Termination of the proceeding are in the favour of the plaintiff:- when there is a need for a suit of damages by the plaintiff for malicious prosecution, it is mandatory that termination of proceeding are in the favour of the plaintiff. In the termination of proceeding in the favour of the plaintiff this does not mean there is absence of judicial determination because of his innocence. There can be no actions that can be brought when the proceeding or the prosecution is still pending because according to the rule of law that any allege should not be allowed in any pending suits and that is unjust. “It is essential to show that the proceeding alleged to be instituted has terminated in favour of the plaintiff, if, from its nature, it be capable of such a termination.The reason seems to be that, if in the proceeding complained of the decision was against the plaintiff and was unreversed; it would not be consistent with the principles on which law is administered, for another court, not being a court of Appeal, to hold that the decision had come to without reasonable and probable cause.The plaintiff need not prove an acquittal, for a prosecution may be determined in various ways, or his innocence”[17].

5. The Plaintiff should have suffered damaged because of the malicious act which is done by the Defendant:- while the plaintiff filing a suit for the damages there should prosecution that the plaintiff had suffered. If the plaintiff wants to claim for damages then the damages should be:

  • There should be damages to the reputation of the plaintiff

  • There should be a damage to plaintiff’s person

  • There should be a damage to the property of the plaintiff

Detailed Analysis on the case “ West Bengal State of Electricity Board v. Dilip Kumar Ray”[18]

Detailed facts of the case

This case was about Dilip Kumar who was the respondent who worked in the West Bengal elecrticity board has the superintending Engineer. He was suspended from his work without any reason. So Dilip filed a writ petition against them in the Calcutta Hight Court tasing for a preceding of what is the reason for his suspension. The court asked the electricity board to produce the charge sheet and they produced the charge sheet with 10 allegations against him. The resonant filed another writ petition stated that the allegation were false, then the court appointed an officer to investigate the matter.

The investigation officer couldn’t establish all the allegation made against the respondent but there are certain allegation that was true with proof. The respondent stated in the court that he was not given an opportunity to be heard in the investigation and he was not allowed to access or check the document which was pre adjudicating his defence. The court held in the favour of the respondent and order the appellant to pay salary in arrears.

The respondent filed a new civil suit before the District Judge because the proceeding of the writ petition was dismissed in Hight court and claimed for damages because of the false allegations made. The trial held that the respondent should receive Rs.50,000 for the for losing his reputation and another Rs.50,000 for the mental harassment made against him. However the court did not mention anything about Malicious Prosecution.

However the appellants appealed to the high court and the high court interpreted the decision of the lower court in a different way. High court heck that there was malicious prosecution and that was the reason of mental harassment to the respondent and for the damages the appellant should give Rs.50,000. The appellants appealed to the supreme court because the high court was contradicting the lower court about the an evidence to prove malicious prosecution was present. The supreme court gave a detailed definition of malicious prosecution that “Malicious Prosecution – Malice. If the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such, as would operate on the mind of a discreet and reasonable man; malice and want of reasonable and probable cause have reference to the state of the defendant’s mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.”[19]

Case Analysis and Case comment

The supreme court of India have very well explained about malicious prosecution in the case West Bengal State of Electricity Board(appellant) against Dilip Kumar Ray(respondant)

Firstly there was a writ petition that was filed by the respondent in the high court of Calcutta because of his suspension of his work in West Bengal State of Electricity Board without issuing a charge sheet within 4 months. According to law a public servant should receive a charge sheet for his suspension within the reasonable time.Referring to this case "Firestone Tyre & Rubber Co. Ltd. v. Their worknen 1967 LLJ - 11 717 that Non-issuance of charge sheet in disciplinary proceedings would amount to prejudice against the delinquent and considered unfair” the high court told the board to issue the charge sheet. There was various allegations that was made by the electricity board to the respondent and respondent said that its also allegation and then the court appointed a investigation officer. The investigation officer had stated that the charges 1, 4, 6, 7, 8 and 9 are false has there is no proof and Charges 2, 5, and 10 are true and Charge 3 is might be true, the court held that the respondent should be given salary arrears and the respondent should his work . Since the respondent was not satisfied has he lost his reputation with the investigation he filed a new suit to the district judge. Similarily in the case “Addis v. Gramophone Company Ltd”[20] the company suspending Addis the employee which was very ‘harsh and humiliating’, so court held in the favour of respondent because loss of reputation and can claim for his damages. So the court held the same decision in current case.

The appellants were not sataified so they made an appeal to the high court of Calcutta, but the high court up held the decision of the lower court in a different interpretation that they while they were converging the harassment there was malicious prosecution emerging, hence the respondent is entitled to receive Rs.50,000 for his damages.

The appellants weren’t again satisfied with the decision so they filed an appeal to seek a remedy in the Supreme Court. The appellants contented their reasons for the damages to the supreme and the supreme court held the definition of ‘malice’ and ‘malicious prosecution’.

Conclusion and Suggestion


Malicious act is not with a intention to The main 5 elements of malicious procession is Malicious Prosecution is done by the Defendant, absence of the Probable and Reasonable cause, act of the Defendant was maliciously, Termination of the proceeding are in the favour of the plaintiff and The Plaintiff suffered damaged because of malicious act by the Defendant . The supreme court has briefly explained about ‘malicious prosecution’ and ‘malice’ in Dilip Kumar case If the plaintiff wants to claim compensation for the damages then he need to prove the essential of malicious prosecution.Only the court has the decision to say that if the suit filed by the plaintiff for damages is because malicious Prosecution or not.


The government should bring strict laws to prevent from malicious prosecution because no one can misuse the procedures of the law and they should be punished.



• Ratanlal & Dhirajlal, Law of Torts 297-309(Lexis Nexis, 28th ed., 2019)

• PS. A Pillai, Law of Tort 367-385 ( EBC Reader 9th ed. 2008)

• H.P. Gupta, Lawof Defamationand Malicious Prosecution(Thomas Reuters, 2nd ed. 2016)


• BRITANNICA, (last visited on April 19, 2021)

• Sindhuja D, An analysis on the Malicious Prosecution, 20, SUPREMO AMICUS, 1 (2020)

• LAWNN,, (last visited on April 20, 2021)

• ACADEMIA, (last visited on April 20, 2021)

[1] BRITANNICA, (last visited on April 19, 2021) [2]LEGAL SERVICE INDIA, (last visited on April 19, 2021) [3] Ram v. Madan Gupta (2007) [4] Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil, 2005 (2) BomCR 491, 2004 (4) MhLj 12


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