Notes and Articles for Law students

User Tools

Site Tools


Malicious prosecution

Malicious prosecution is the malicious institution against another of unsuccessful criminal, or bankruptcy, or liquidation proceedings, without reasonable or probable cause.1) It is not a wrongful act for any person, who honestly believes that he has reasonable and probable cause, though he has not in fact, to put the criminal law in motion against another; but if to the absence of such reasonable and probable cause a malicious motive operating upon the mind of such prosecutor is added, that which would have been a rightful (in the sense of a justifiable) act if done without malice becomes with malice wrongful and actionable. If when he instituted criminal proceedings the prosecutor knew he had no reasonable ground for the steps he was taking, the definition of malice given in Bromage v. Prosser, viz., 'wrongful act done intentionally without just cause or excuse'; would distinctly apply, and no further proof of malice is required; but if he really believed he had such reasonable cause, although in fact he had it not, and was actuated by such belief alone, but also by personal spite or a desire to bring about the imprisonment of or other harm to the accused, or to accomplish some other sinister object of his own, that personal enmity or sinister motive would be quite sufficient to establish the malice required by law to complete a cause of action.2)

In an action for malicious prosecution the plaintiff has to prove:

  1. That he was prosecuted by the defendant before a judicial officer.
  2. That he was innocent and his innocence was pronounced by the tribunal before which the accusation was made, or in other words, that the proceedings terminated in his favour.
  3. That there was no reasonable or probable cause for the prosecution.
  4. That the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect improper motive, and not in furtherance of justice; and
  5. That he has suffered in person, reputation, or pocket, by the prosecution.

If the plaintiff fails to prove any of these five factors his case will also fail.

Prosecution by defendant

The prosecution must have been instituted by the defendant against the plaintiff, and not merely by the authorities on facts furnished by the defendant. Thus, if a person bona fide lays before a Magistrate a state of facts, without making a specific charge of crime, and the Magistrate erroneously treats the matter as a felony, when it is in reality only a civil injury, and issues his warrant for the apprehension of the plaintiff, the defendant who has complained to the Magistrate is not responsible for the mistake. For he has not instituted the prosecution, but the Magistrate. But it is no excuse for the defendant that he instituted the prosecution under the order of a Court, if the Court was moved by the defendant's false evidence, though not at his request, to give the order, and if the proceedings in the prosecution involved the repetition of the same falsehood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution.3) It is no answer that the accuser was bound over, by recognizance, to prosecute and give evidence, if that was merely the result of the prior malicious proceedings originated by him.4)

No action will lie for a civil action brought maliciously and without reasonable and probable cause.5)

Plaintiff, who was defendant's servant, lent a fellow-servant two pairs of horse-clipping machines, and took them away again when the other had done with them. The defendant had seen them lying about, and supposing they were his, and missing them, he said to a police man, “I have had stolen from me two pairs of clippers, and they were last seen in the possession of Danby.” The police man without farther instructions, searched Danby's house, and charged him with felony. The defendant was called as a, witness, and gave evidence for the prosecution, both before the Justices and at the trial which ensued. It was held that this did not amount to a prosecution by the defendant.6) It is no prosecution to write a letter to a Superintendent of Police stating that the plaintiff has committed a murder, in consequence of which the police attempt, but in vain, to arrest the plaintiff.7) Defendant went before a Justice, and made a statement from which the Judge's clerk drew the information, and upon the plaintiff appearing, and being examined, the charge was dismissed, the plaintiff was non-suited in an action for malicious prosecution.8) Defendant, having by means of a search-warrant, discovered some casks belonging to him in the house of some one else, swore an information stating this fact, but not making any direct charge against the plaintiff or saying anything which amounted to a charge. The Magistrate thereupon issued a warrant, and in an action for malicious prosecution, Lord Eldon non-suited, saying that the defendant was not responsible if the Magistrate erroneously thought that the facts sworn amounted to a charge of felony.9)

Innocence of plaintiff

It must be shown that the proceedings terminated in favour of the plaintiff, if from their nature they are capable of such a termination.10) The plaintiff need not prove an acquittal, for a prosecution may be determined in various ways. If the proceedings are in their nature incapable of terminating in the plaintiff's favour, e.g., the malicious exhibition of articles of the peace, this need not be proved.

The single exception to the rule that the prosecution must have terminated favourably to the plaintiff is that it does not apply where the proceedings, in respect of which the action is brought, are ex parte, and must of necessity terminate unfavourably to the plaintiff.11)

Reasonable and probable cause

Reasonable and probable cause is an honest belief in the guilt of the accused based on 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 ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be;

  1. an honest belief of the accuser in the guilt of the accused;
  2. such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion;
  3. such secondly mentioned belief must be based upon reasonable grounds, i.e., such grounds as would lead any fairly cautious man in the defendant's situation so to believe;
  4. the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.12)

The onus of proving the absence of reasonable and probable cause for the prosecution rests on the plaintiff.13)

The existence of reasonable and probable cause does not avail if the prosecutor prosecuted in ignorance of it. The dismissal of a prosecution does not create any presumption of the absence of reasonable and probable cause.14)

The opinion of counsel as to the propriety of instituting a prosecution, will not excuse the defendant if the charge was in fact unreasonable and improbable.15)

What is reasonable and probable cause should be determined by the Judge and not be left to the jury.16)

Malicious spirit

The plaintiff must prove that the defendant was influenced by 'malice in fact' in beginning or continuing the prosecution.17) The malice here spoken of is ' malice in fact' (malus animus), indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards any body.18) It is a wish to injure the party rather than to vindicate the law. Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way.19)

Malice is generally implied upon proof of absence of reasonable and probable cause for instituting the prosecution complained of.20) But the absence of reasonable and probable cause is not per se evidence of malice, and a finding that the defendant honestly believed in the case is conclusive against the plaintiff's right of action.21) Conversely, the most express malice will not give a cause of action if reasonable and probable cause existed22), nor can the absence of the latter be inferred from the existence of malice.23) A prosecution, though at the outset not malicious, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution with the intention of procuring per nefas a conviction.24) But where the defendant has honestly and bona fide instituted the prosecution, he is not liable, although owing to a defective memory he has wrongly accused the plaintiff.25)

Plaintiff has suffered

It is necessary to show some damage resulting to the plaintiff from the prosecution complained of.26) The damage need not necessarily be pecuniary. There are three sorts of damages resulting from a malicious and unfounded indictment, any of which would be sufficient to support an action:

  1. the damage to a man's fame, as if the matter whereof he is accused is scandalous:
  2. where a man is put in danger to lose his life, limb, or liberty:
  3. the damage to a man's property, as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused.27)

Here again, as in slander, the damages must be the reasonable and probable result of the malicious prosecution, and not too remote.

Indian law

In a leading case the Privy Council has laid down that a plaintiff in a suit for malicious prosecution would have to prove:

  1. That defendant was the prosecutor in the criminal proceedings against him;
  2. That the defendant was actuated by malice;
  3. That the defendant's proceeding was without any reasonable or probable cause.28)

The plaintiff must also show that he was innocent of the charge brought against him.

No action is maintainable for damages occasioned by a civil action even though brought maliciously and without reasonable and probable cause.29)

Malice” is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.30) There must be something more of the nature of an indirect or sinister motive for the prosecution than the mere absence of reasonable and probable cause. The mere absence of reasonable and probable cause does not of itself justify the conclusion as a matter of law that an act is malicious. It is not identical with malice, but malice may, having regard to the circumstances of the case, be inferred from it.31) Malice is not to be inferred merely from the acquittal of the plaintiff.32) It must be borne in mind that the term ' malice in law ' or 'legal malice ' does not mean that the law will imply malice when no malice existed, but that, when the facts are proved which give rise to a presumption that malice existed, the Court may infer there was malice, that is, that the defendant acted from some other motive than an honest desire to bring a man whom he believed to have offended against the criminal law to justice33), or as it was expressed by the Master of the Rolls “with intention which was wrongful in point of fact.” The presumption appears to be one of the class which falls under s. 114 of the Evidence Act.34)

If a prosecution is not malicious or groundless no suit for injury or loss thereby sustained by a person can be brought.35)

Reasonable and probable cause” may be defined to be 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 ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.36)

The test of reasonable and probable cause is not what impression the circumstances would make on the mind of a lawyer but whether the circumstances warranted a discreet man in instituting and following up the proceedings. The test which has received the most approbation is partly abstract and partly concrete. Was it reasonable and probable cause for any discreet man ? Was it so to the maker of the charge ? The question to be determined is, had the defendant at the time of instituting the criminal proceedings against the plaintiff such grounds for his action as might fairly lead him as an ordinarily cautious and discreet man, to believe that the plaintiff had committed the offence ?37) There can be no question of reasonable and probable cause where the charge was one which must have been true or false to the defendant's knowledge, and in which there could be no mistake on his part. The bringing of a charge false to the knowledge of the prosecutor imports in law malice sufficient to support a civil action.38)

Where the charge was false to the knowledge of the defendant, the omission to allege expressly malice and the absence of reasonable and probable cause is no good ground of objection to the hearing of the suit.39) If the charge was found to be false, the onus would be on the defendant to show that he had reasonable and sufficient cause for making it; on his failure to show any such cause, malice may be inferred.40)

The fact that the plaintiff was acquitted, is not prima facie evidence that the charge was unreasonable and false.41)

The fact that a plaintiff has been convicted by a competent Court, although he may subsequently have been acquitted on appeal, is evidence, if unrebutted, of the strongest possible character against the plaintiffs necessary plea of want of reasonable and probable cause.42) An accusation which has been held by a criminal Court to be unfounded is sufficient prima facie evidence that the accusation was maliciously brought.43)

A plaintiff must prove in a civil Court that there was no reasonable cause for bringing the accusation; the proceedings in a criminal Court are not evidence in the civil Court.44) But the judgment of a criminal Court is admissible in evidence.45)

The question of reasonable and probable cause is in England, where such cases are tried by a Judge with a Jury, a question for the Judge and not for the jury; but in India, where there is no jury, the Judge becomes himself the Judge of the law and the facts. And the determination of reasonable and probable cause is a question of fact to be determined by one and the same person.46)

The discharge of an accused by a Magistrate is such a termination of the prosecution as entitles the accused to maintain an action for malicious prosecution.47) Where defendant instituted criminal proceedings before the Police and the Police after investigation prosecuted plaintiff, it was held that no action lay against the defendant.48) A Police Constable, who is in effect the prosecutor and not acting merely in his official capacity, who does not take reasonable care to inform himself of the truth of the case, and who does not honestly believe in the charge preferred by him, and is actuated by an indirect motive in preferring it, is liable in a suit for damages for malicious prosecution.49)

A charge of assault against the plaintiff was dismissed but it appeared that there was ' criminal intimidation ' on his part although he was not charged with that offence by the defendant. Held, in an action for damages for malicious prosecution, that he would not be entitled to any damages, as no malice or dishonest motive could be imputed to the defendant in bringing the charge of assault.50)

Malicious civil proceedings and Malicious prosecution distinguished

There is a difference between, maliciously, and without probable cause, instituting civil proceedings, and the similarly putting the criminal law in motion to the damage of another. From the former the only liability is what arises from being charged with costs, or from any Special provisions regarding vexatious suits. In contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff and therefore even if malice be proved, an action does not lie for instituting civil proceedings.51) The one is the exercise of the private right of action, the other is an abuse, by a private person, of the criminal law.

Indian law: As shown above the rule of English law is that the malicious assertion of a legal right is not actionable. But the rule in India is different. According to Indian law, an action will lie for the improper issue of mesne and other legal process. Proof of legal, not actual, malice, “and of sufferance of 'some collateral wrong' is essential in such cases.52)

False imprisonment and Malicious prosecution distinguished

' False imprisonment ' is wrongfully restraining the personal liberty of the plaintiff : ' malicious prosecution ' is wrongfully setting the criminal law in motion against him. Restraining the personal liberty of another person is prima facie a wrongful act. Setting the criminal law in motion is prima facie a thing which any person has a right to do, and it is necessary for a plaintiff to show that in the particular instance it was done wrongfully, i.e., maliciously and without reasonable cause, before he can recover for it.

The distinction between ' false imprisonment ' and ' malicious prosecution ' is well illustrated by the case where parties being before a Magistrate, one makes a charge against another, whereupon the Magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment.53) Thus the question is, does the defendant set a ministerial or a judicial officer in motion ? If the former, he may be liable for false imprisonment; if the latter, for malicious prosecution.

In ' false imprisonment', the onus lies on the defendant to plead and prove affirmatively the existence of reasonable cause as his justification, whereas in an action for malicious prosecution the plaintiff must allege and prove affirmatively its non-existence.54)


A successful plaintiff in an action for malicious prosecution is entitled to recover damages for the costs of his defence, which used to be considered the main ground, and was probably the original ground, of the action, and for the indignity and injury to his fame or credit caused by the prosecution.

In an action for malicious prosecution, the damages may be a matter of calculation, as where they consist of the necessary charges to which a man has been put to procure his discharge, or in defending himself against the prosecution, including the fee paid by him to his pleader.55) The nature and extent of the damage resulting to the plaintiff from the proceedings of the defendant may also be shown. The damages are purely discretionary where they accrue from the scandalous nature of the prosecution.56) A plaintiff's feeling may be taken into account in assessing damages for a malicious prosecution.57) When a plaintiff has prosecuted the defendant in a criminal Court and the latter has been convicted, he cannot sue the defendant in the civil Court for the expenses incurred by him in prosecuting the defendant in the criminal Court.58)

Damages are given on two grounds:

  1. on the ground of a solatium for injury to the feelings of the party prosecuted;
  2. as a reimbursement for legitimate expenses incurred by him in his defence.59)

The expense of counsel is not a proper element in the calculation of damages awardable to a successful plaintiff.60) But in a later case of the same Court it is said that the fee paid by plaintiff to his pleader for the purpose of his defence before the criminal Court is an element to be considered in assessing the damages suffered.61)

Churchill v. Siggers
Quinn v. Leathem
Fitz John v. Mackinder
Debois v. Keats
Quartz Hill Mining Co. v. Eyre
Danby v. Beardsley
Harris v. Warre
Cohen v. Morgan
Leigh v. Webb
Taylor v. Ford
Stewart v. Gromett
12) , 18) , 25) , 54)
Hicks v. Faulkner
Lister v. Perryman
Byrne v. Moore
Hewlett v. Cruchley
Allmond v. Muirhead
Purcell v. Macnamara
Stevens v. Midland Ry.
Johnston v. Sutton
Brown v. Hawkes
Willans v. Taylor
Incledon v. Barry
Fits John v. Mackinder
Byne v. Moore
Savile v. Roberts
Baboo Ganesh Dutt v. Mugneeram
Pranskankar v. Govindlal
30) , 31) , 36)
Bhim Sen v. Sita Ram
Roshan v. Nabin
Abrath v. N. E. Ry.
Maya Mal v. Madho Mal
Kishoree Lall v. Enaeth Hossein
Dwarka Das v. Hari Har
Hira Lai v. Bandhu
Ramasami v. Rama
Biswanath v. Ramdhan
Nund Kishore v. Kishen Dyal
Jadubar Singh v. Sheo Saran
Heera Chand v. Banee Madhub
Aghorenath Roy v. Radhika Pershad
Ram Jung Bahadur v. Rai Gudor
Pestonji M. Mody v. Queen Insurance Co.
Venu v. Coorya
Narasinga v. Muthaya
Minakshisundrum v. Ayyathorai
Madhu Lal v. Sahai Pande
Quartz Hill Gold Mining Co. v. Eyre
Gontiere v. Robert
Austin v. Dowling
Subba Rau v. Virappa
Leith v. Pope
Haro Lal v. Haro Chandra
Fazul Imam v. Fazal Rasul
Rai Jung Bahadur v. Rai Gudor
Goday v. Ankitam
Gajapathi v. Narsing

Navigation: Home»Law of Torts