Malicious Prosecution

#What is Malicious Prosecution? The malicious prosecution can be defined as an institution of unsuccessful criminal, bankruptcy and liquidation proceedings which has been instituted maliciously and without reasonable or probable cause. When such prosecution causes damages to the party prosecuted an action for tort can be instituted. The tort of malicious prosecution is based upon two principles namely the freedom that every person should have in bringing criminals to the justice and need for restraining false accusations against innocent persons.

In an action for malicious prosecution the following essentials have to be proved:-

##1. Prosecution by the defendant-

It involves two elements first that the plaintiff was prosecuted and secondly that the defendant was the prosecutor. A Prosecution is there when a criminal charge is made before a judicial officer or a tribunal. In Nagendra Nath Rai v. Basanta Das Bairagya 1929 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 the suit for malicious prosecution it was held that it was not maintainable as there was no prosecution at all because police proceedings are not the same thing as prosecution. Prosecution should be made by a defendant. A ‘prosecutor’ is a person who is actively putting the law in force for the prosecuting another. If I tell a policeman that I have a particular thing stolen from me and that was last seen in ‘X’ possession and the police man without any further instructions on my part makes enquiries and arrests, it is not I who have instituted the prosecution. I certainly set in the stone rolling but it was suspicion only. A private person can be termed as a prosecutor if he has done something more than mere really lodging the complaint with the police, he must have actively involved in the proceedings and must have made efforts 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. For instance, a pathologist preparing a post-mortem report or a person appearing merely as a witness cannot be held to be a prosecutor.

##2. Absence of reasonable and probable cause

The plaintiff has 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:-

i. He took care to be informed of the facts,

ii. He honestly believe his allegations to be true, and

iii. The fact was such as to constitute a prima-facie case.

Reasonable and probable cause means that there are sufficient grounds for 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 that he acts and in believing in the story he must act likely a prudent man. therefore, the test is both subjective and objective.

The absence of reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused. In the case of Abrath v. North Eastern Railway 1833 Mr M recovered compensation from the defendants company for the personal injuries caused to him in the railway collision. Further the railway company somehow got the information that Mr M has artificially created the injuries by the Dr Abrath. The directors of the railway company made various enquiries and obtained legal advice which suggested that Dr Abrath should be prosecuted. The doctor was accordingly sued but he was acquitted. Thereafter the doctor brought an action for the malicious prosecution in which the court held that the railway company had taken reasonable care to inform its self of the true facts and they honestly believed in the allegations and therefore they were not held liable.

###3. Malice

If the defendant is able to prove that he acted on the bonafide ground to believe that the plaintiff had committed the offence then the defendant will be said to have been lawfully justified and hence he will not be liable. Evil motive and absence of lawful justification are two different ingredients which plaintiff has to prove.

Malice in law itself is not a proof of malice in fact it may be an additional factor. The fact that the plaintiff has been able to prove the malice in law element is not in itself proof of malice in fact rather it has to be proved distantly that the defendant acted with evil motive. The plaintiff therefore has to prove by distinct evidences that the defendant acted with evil motive. The evidence of malice in law can be just one piece of evidence to suggest for existence of malice of fact, but other distant evidences shall be proved to the existence of malice in fact. Malice in fact and malice in law are two distinct things and therefore these two have to be proved by distinct evidences.

###4. Termination of proceedings in favour of plaintiff

It is also essential that the prosecution terminated in the favour of the plaintiff. If the plaintiff has been convicted by the court he cannot bring on an action for malicious prosecution even though he can prove his innocence and also that the acquisition was malicious.

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 the 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 the malicious prosecution of a graver offence of which he is acquitted. No action can be bought for malicious prosecution when prosecution or the proceedings are still pending.

###5. Damage to the plaintiff

It has also to be proved that the plaintiff suffered damage as the consequence of the prosecution complaint of. Though the prosecution ends in acquittal the plaintiff may have suffered damage to his person , property or reputation for which he can claim compensation. Malicious prosecution is one of the torts in which aggravated damages are permissible.