Malicious Prosecution

Held. The appeal was allowed and the High Court's judgment set aside. Damages for malicious prosecution cannot be awarded where the tort was neither pleaded nor put in issue nor proved, and findings resting on surmises and conjectures cannot support such a decree. In the course of the judgment the Court set out the vocabulary of this group of wrongs: malicious prosecution requires proceedings instituted maliciously and without reasonable and probable cause; a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted by the order of the court; and there is a distinction between a malicious use and a malicious abuse of legal process, an abuse being where the party employs it for an unlawful object.

Why it matters here. It is the Indian authority on the ingredients and on the need to plead and prove them, and it is the bridge to chapter [Malicious Abuse of Legal Process].

A worked example

Rakesh tells the police that his neighbour Suman stole his motorcycle. He knows the motorcycle is with his own brother. Suman is arrested, spends four days in custody, is tried and is acquitted.

Prosecution. Rakesh did not merely give information; he set the law in motion on facts he knew to be false, so he is a prosecutor.

Termination in Suman's favour. The acquittal.

Absence of reasonable and probable cause. Rakesh knew where the motorcycle was, so he had no honest belief on reasonable grounds.

Malice. An improper motive is established by the same facts, and may in any event be inferred from the absence of cause.

Damage. Four days in custody, the cost of the defence, and the injury to reputation.

Limitation. Article 74 of the Schedule to the Limitation Act 1963 gives one year from the acquittal.

Change one fact. Suppose Rakesh honestly believed Suman had taken it, on the word of a witness he had no reason to disbelieve. Then reasonable and probable cause existed, the claim fails at the third ingredient, and the acquittal makes no difference.

Distinctions that carry marks

What it does NOT mean

An acquittal is not proof of the tort. It satisfies one ingredient of five.

Giving information honestly is not prosecuting. The informant who leaves the decision to the police is not a prosecutor.

Malice does not prove the absence of reasonable cause. The inference runs the other way only.

A claim cannot be brought while the prosecution is pending. Favourable termination is an ingredient.

Quick revision

1. Five ingredients: prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, malice, and damage.
2. The burden of all five, including the negative, is on the plaintiff.
3. Reasonable and probable cause: an honest belief on reasonable grounds that the plaintiff was probably guilty.
4. Malice is any improper motive, and may be inferred from the absence of reasonable cause, but not the converse.
5. Damage may be to reputation, person or property, including the cost of the defence.
6. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568: the tort must be pleaded, put in issue and proved; a decree on surmises was set aside.
7. Limitation: article 74 of the Schedule to the Limitation Act 1963, one year from the acquittal or other termination.

Test yourself

1. State and explain the ingredients of malicious prosecution. Five must be proved by the plaintiff. That the defendant prosecuted him, that is, set the criminal law in motion against him, which an honest informant who leaves the decision to the police does not do. That the prosecution terminated in his favour, by acquittal, discharge, withdrawal or quashing, since no action lies while it is pending. That the defendant acted without reasonable and probable cause, meaning without an honest belief founded on reasonable grounds in circumstances that would lead an ordinarily prudent person to think the plaintiff probably guilty; this is proof of a negative and is the hardest ingredient. That the defendant acted maliciously, malice meaning any improper motive other than the desire to bring an offender to justice. And that the plaintiff suffered damage to his reputation, his person or his property. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, shows the consequence of not pleading and proving them: the decree was set aside.

2. Why is the burden on the plaintiff to prove the absence of reasonable and probable cause? Because the law wants offences reported, and a rule that put the burden on the defendant to justify every complaint would deter honest informants. The tort exists to punish the abuse of the criminal process, not the failure of a prosecution, and an acquittal proves only that the charge was not made out beyond reasonable doubt. Requiring the plaintiff to prove the absence of cause keeps the balance between protecting the citizen from malicious accusation and protecting the citizen who reports a crime in good faith. It also explains the related rule that malice may be inferred from the absence of reasonable and probable cause, but that the absence of cause may never be inferred from malice, since a person may act from a bad motive on facts that would justify any prudent person.

3. Distinguish malicious prosecution from false imprisonment. In false imprisonment the defendant himself restrains the plaintiff, or directs the restraint; in malicious prosecution he sets the law in motion and the restraint, if any, follows from the act of the court or the police. False imprisonment requires no malice and no want of reasonable cause, and it is actionable without proof of damage; malicious prosecution requires both malice and the absence of reasonable and probable cause, and damage must be proved. The periods of limitation differ too: article 73 of the Schedule to the Limitation Act 1963 gives one year from the end of the imprisonment, while article 74 gives one year from the acquittal or other termination of the prosecution.