Malicious Prosecution

In one line

Malicious prosecution is setting the criminal law in motion against somebody maliciously and without reasonable cause, when the prosecution ends in his favour and damages him.

In the wording a student can write in an exam: the tort of malicious prosecution is committed where the defendant prosecuted the plaintiff, the prosecution ended in the plaintiff's favour, the defendant acted without reasonable and probable cause, he acted maliciously, and the plaintiff suffered damage to his reputation, his person or his property; the burden of proving all five, including the absence of reasonable and probable cause, lies on the plaintiff.

The five ingredients

1. The defendant prosecuted the plaintiff. To prosecute is to set the law in motion against another on a criminal charge. A person who merely gives information to the police honestly, leaving the police to decide, is not a prosecutor; a person who files a complaint, or who procures the prosecution by pressing false information, is.

2. The prosecution ended in the plaintiff's favour. An acquittal, a discharge, a withdrawal, or a quashing will do. The plaintiff need not prove his innocence, only that the proceeding terminated in his favour; and while it is pending, no action lies at all, which is why article 74 of the Schedule to the Limitation Act 1963 runs the period of one year from the acquittal or other termination.

3. Absence of reasonable and probable cause. This means an honest belief, founded on reasonable grounds, in the existence of a state of circumstances which would lead an ordinarily prudent and cautious person to conclude that the plaintiff was probably guilty. The plaintiff must prove that the defendant had no such cause, which is proof of a negative and is the hardest part of the case.

4. Malice. Malice here means any improper motive, that is, a purpose other than the desire to bring an offender to justice. Spite is malice, and so is the wish to extort money, to gain a collateral advantage, or to silence a rival. Malice may be inferred from the absence of reasonable and probable cause, but the absence of cause cannot be inferred from malice.

5. Damage. The plaintiff must have suffered damage to his reputation, to his person by arrest or imprisonment, or to his property by the expense of defending himself.

Why the tort is kept narrow

The law wants offences reported. If every acquitted accused could sue the complainant, nobody would report a crime. The five ingredients, and particularly the requirement that the plaintiff prove the absence of reasonable and probable cause, exist to keep the balance.

The Indian case, and the discipline it enforces

Facts. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, decided on 24 November 2006. An employee sued the Board for damages. The trial court held that he was not entitled to damages for defamation but awarded damages for harassment, and the High Court affirmed, reading that award as damages for malicious prosecution causing harassment. There was no specific pleading of malicious prosecution, no issue framed on it, and no evidence led to establish it.