“MALICIOUS PROSECUTION”

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE TITLED – LAW OF

TORTS

SUBMITTED TO:

Mrs. SUSHMITA SINGH

TEACHER ASSOCIATE

SUBMITTED BY:

NAME: KARAN SINGH RAUTELA

COURSE: B.A., LL.B (Hons.)

ROLL NO: 1736

SEMESTER: 1st

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA – 800001

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 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Mrs. Sushmita Singh, without the kind
support of whom and help the completion of the project could not have been possible for me.
She donated her valuable time from her busy schedule to help me to complete this project and
suggested me from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very
useful and could not be ignored in writing the project. I want to convey most sincere thanks to
my seniors, for helping me throughout the project.

Last but not the least, I am very much thankful to my parents and family, who always stand
aside me and helped me a lot in accessing all sorts of resources.

I thank all of them !

KARAN SINGH RAUTELA

ROLL :- 1736
SEMESTER :- I
B.A.L.L.B. ( Hons. )

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 TABLE OF CONTENT

(I) INTRODUCTION --------------------------------------------------------------------- 4-5

(II) ELEMENTS OF MALICIOUS PROSECUTION -------------------------------- 6-8

(III) MALICIOUS LEGAL PROCESS --------------------------------------------------- 9-12

(IV) MAINTENANCE ---------------------------------------------------------------- 13-14

(V) CASE LAWS ------------------------------------------------------------------------- 15-18

(VI) CONCLUSION AND SUGGESTION------------------------------------------------ 19

(VII) BIBLIOGRAPHY---------------------------------------------------------------------- 20

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 1. INTRODUCTION
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. Malicious
prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a
criminal charge. The foundation lies in the triangular abuse of the court process of the court by
wrongfully setting the law in motion and it is designed to encourage the perversion of the
machinery of justice for a proper cause the tort of malicious position provides redress for those
who are prosecuted without cause and with malice. In order to succeed the plaintiff must prove
that there was a prosecution without reasonable and just cause, initiated by malice and the case
was resolved in the plaintiff’s favour1. It is necessary to prove that damage was suffered as a
result of the prosecution.

Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in
motion on a criminal charge. In order to succeed the plaintiff must prove that there was a
prosecution without any just and reasonable cause, initiated by malice and the case was decided
in the plaintiff’s favour. It is necessary to prove that damages were incurred by the plaintiff as a
result of the prosecution. The burden of proof rests on him. He has to prove the existence of
malice2.

Malice may be proved by previously stained relations, unreasonable and improper conduct like
advertising the charge or getting up false evidence. Though mere carelessness is not the per se
proof of malice, unreasonable conduct like haste, recklessness or failure to make enquiries would
be some evidence.

The Prosecution is not deemed to have commenced before a person is summoned to answer a
complaint. The plaintiff is neither arrested nor prosecuted for merely bringing the matter before
the executive authority as it did not amount to prosecution. There is no commencement of the

1
RATANLAL & DHIRAJLAL, THE LAW OF TORTS, 340, (26 th ed. , Lexis Nexis), (2013)
2
P.S.A. PILLAI, LAW OF TORT367-368 (9thed., Eastern Book Company) (2016)

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prosecution when a magistrate issues only a notice and not summons to the accused on receiving
a complaint and subsequently dismissed it after hearing both the parties.

AIMS AND OBJECTIVES

To have a detailed study of law of torts of Malicious Prosecution.

RESEARCH METHODOLOGY
This research project is solely based on doctrinal type of research work.

SOURCES OF DATA
The researcher has used secondary sources to complete his research. The secondary sources
includes books and internet.

HYPOTHESIS
∙ The researcher believes that legal right to sue a person is reasonably restricted through Tort of
Malicious Prosecution.

RESEARCH QUESTIONS

1.) What is Malicious Prosecution and how does it restrict a person’s legal right of bringing
cause of action against another?

2.) What background information is necessary to fully understand the concept of malicious
prosecution?

3.) Does tort of malicious prosecution negatively affect the society?

4.) Who has the burden of proof if a person wants to sue another for malicious prosecution?

5.) How is tort of malicious prosecution is in accordance with the law and society?

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 2. ELEMENTS OF MALICIOUS PROSECUTION

3.1 Institution or continuation of Legal proceedings3

There must have been a prosecution initiated by the defendant. The word ‘prosecution’ means a
proceeding in a court of law charging a person with a crime. To prosecute is to set the law in
motion and the law is set in motion only by an appeal in court. The person to be sued is the
person who has prosecuted the other person. One view was that a prosecution began only when
process was issued and there could be no action when a magistrate dismissed a complaint. The
other view was that a prosecution commenced as soon as a charge was made before the court and
before process was issued to the accused. If the complainant knowing that the charge is false
tries to mislead the police by procuring false evidence for the conviction of the accused, he
would be considered to be the prosecutor.

3.2 Termination of the prosecution in the plaintiff’s favour4

The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it
is terminated and while it is pending. The termination may be by an acquittal on the merits and a
finding of his innocence or by a dismissal of the complaint for technical defects or for non-
prosecution. If however his is convicted he has no right to sue and will not be allowed to show
that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the
conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is
unnecessary for the plaintiff to prove his innocence as a separate issue.

3
Rebecca Broadbent, Malicious Prosecution, The Student Lawyer, (Oct. 8,2017, 7:00 PM),
http://thestudentlawyer.com/2013/04/12/malicious-prosecutions/
4
Prateek Shankar Shrivastav, Malicious Prosecution under Law of Tort, Legal Service India, (Oct. 8,2017, 7:10
PM), http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html

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3.3 Absence of 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 circumstances, which
assuming them to be true, would reasonably lead any ordinary prudent man and cautious man
placed in the position of the accuser to the conclusion that the person charged was probably
guilty of the crime imputed.

It is the responsibility of the plaintiff to show that there was no reasonable and probable cause
for the prosecution of the case. If it can be shown that the defendant has initiated the prosecution
without himself holding an honest belief in the truth of the charge, it cannot be said that he acted
upon reasonable and probable cause. The fact that the plaintiff has been acquitted is not prima
facie evidence that the charge was unreasonable and false. Lack of reasonable and probable
cause is to be understood. The fact that the accuser himself thinks that it is reasonable to
prosecute does not per se lead to the conclusion that he had a reasonable and probable cause5.

3.4 Malice

Malice for the purposes of malicious prosecution means having any other motive apart from that
of bringing an offender to justice. Spite and ill-will are sufficient but not necessary conditions of
malice. Malice means the presence of some other and improper motive that is to say the legal
process in question for some other than its legally appointed and appropriate purpose. Anger and
revenge may be proper motives if channelled into the criminal justice system. The lack of
objective and reasonable cause is not an evidence of malice but lack of honest belief is an
evidence of malice 6 . The settled rule is that malice is the gist of the action for malicious
prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove
that there was an existence of malice i.e the Burden of Proof lies upon the plaintiff.

5
Id
6
Id

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3.5 Damage

It has to be proved that the plaintiff has suffered damage as a result of the prosecution complaint
of. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a
result of the prosecution. The damages may not necessarily be pecuniary. Acc to HOLT C.J. ‘ s
classic analysis in Savile v. Robert there could be three sort of damages any one of which could
be sufficient to support any action of malicious prosecution.

1) The damage to a man’s fame

2) The damage done to a person as where man is put to a danger of losing his life , limb or
liberty
3) The damage to a man’s property as where is forced to expend money to acquit himself of
the crime of which he is accused

The damage must also be the reasonable and probable results of malicious prosecution and not
too remote. In assessing damage the court to some extent would have to consider

1) The nature of the offence the plaintiff was charged of

2) The inconvenience to which the plaintiff was charged to
3) Monetary loss and
4) The status and prosecution of the person prosecuted

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 3. MALICIOUS LEGAL PROCESS

3.1 NATURE OF

To put into force the process of law maliciously and without any reasonable and probable cause
is wrongful; and, if thereby another is prejudiced in property or person, there is injury and loss
for which an action will lie.7 This tort of malicious legal process differs from malicious
prosecution. The ingredients to be proved are same as in malicious prosecution except that
damage to person or property must be established. Absence of reasonable and probable cause for
taking legal action in execution or otherwise is some evidence from which malice may be
inferred. Termination in favour of the plaintiff is essential.

Section 95 of the Code of Civil Procedure gives a remedy to a defendant to get compensation
where an arrest before judgement has been affected or a temporary injuction has been granted :

(1) if such arrest, attachment or injuction was applied for an insufficient grounds, or

(2) if the plaintiff fails in the suit and there was no reasonable or probable ground for instituting
the suit.

3.2 MALICIOUS ARREST8

Malicious arrest is maliciously putting the law in motion leading to the arrest of another, under
judicial, process, without reasonable and probable cause. The foundation of an action for
malicious arrest is that the party has obtained an order or authority from a judge to make an
arrest, by knowingly imposing some false statement upon the judge, or by stating certain facts as
being true within his knowledge, when he knew nothing about them, or by asserting his belief in
the truth of a particular statement when he had no reasonable or probable cause for his belief. An
action for malicious arrest is not sustainable, if the defendant has placed all the facts before the
officer having the discretionary powers to order such arrest and when such officer with full
knowledge of all the facts, exercised his discretion and ordered the arrest. A suit to recover
damages lies on account of injuries caused by an arrest, in accordance with the execution of
order and later the proof that the arrest was procured maliciously.

7
supra note 1 at 340
8
supra note 1 at 341

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3.3 MALICIOUS SEARCH9

An action lies for maliciously procuring a house search. It has long been recognized to be
actionable wrong to procure a search warrant without reasonable and probable cause and with
malice.

3.4 MALICIOUS PROCESS AGAINST PROPERTY10

Where a person maliciously and without reasonable and probable cause by means of civil
proceedings, procures execution or distress against the property of another, an action will lie
against him for damages. A distinction is drawn between acts done without judicial sanction and
acts done under judicial sanction improperly obtained. If goods are seized under a writ or a
warrant which authorised the seizure, the seizure is lawful and no action will lie in respect of the
seizure unless the person complaining can establish its remedy by proving malice and want of
reasonable and probable cause. If, however, the writ or warrant did not authorise the seizure of
the goods, an action would lie for damages caused by the wrongful seizure without proof of
malice. If a person causes an attachment before judgment to be levied carelessly and recklessly
and without sufficient or reasonable ground he will be liable in damages. The proceedings in
which the attachment complained of is taken out should have terminated in favour of the plaintiff
or the particular process complained of should have been superseded or discharged. This is not
necessary if from the nature of the proceedings they are incapable of so terminating. The
judgment-creditor is not responsible for the mistake or misconduct of the officer, unless he or his
servants have personally interfered and directed the action of the officer. It is an actionable
wrong to issue execution against the property of a judgment-debtor, after the judgment-debt has
been paid, or to get an injunction wrongfully issued. Proof of malice is not necessary when the
property of a stranger, not a party to the suit, is taken in execution. Where the plaintiff bringing a
suit for malicious legal process is a party to a suit, proof of malice is necessary. The plaintiff
must prove special damage. As explained by the Supreme Court where the property belonging to

9
supra note 1 at 341
10
supra note 1 at 342

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a person not a party to the suit is wrongly attached the action brought by such a person for
damages is really an action grounded on trespass where the plaintiff is not required to prove
malice, absence of reasonable or probable cause or special damage and it is for the defendant to
prove a good cause or excuse. In contrast where the act of attachment complained of was done
under judicial sanction, though at the instance of a party, the remedy is an action for malicious
judicial process where the plaintiff has to prove malice and absence of reasonable or probable
cause on the part of the defendant. If property wrongfully attached is sold, the owner of the
property so sold is entitled to sue either for the restoration of the same specifically or for
damages. The rightful owner may follow the property in the hands of the purchaser who
purchased it at his own risk and peri1.

The claim of a person for damages for wrongful attachment of property can fall under two heads-
(1) trespass and (2) malicious legal process. Where property belonging to a person, not a party to
the suit, is wrongly attached, the action is really one grounded on trespass. But where the act of
attachment complained of was done under judicial sanction, though at the instance of a party, the
remedy is an action for malicious legal process. In the case of malicious legal process of court,
the plaintiff has to prove absence of probable and reasonable cause. In cases of trespass the
plaintiff has only to prove the trespass and it is for the defendant to prove a good cause or
excuse. In the former case plaintiff has to prove malice on the part of the defendant while in the
latter case it is not necessary.

3.5 PROCURING ERRONEOUS DECISION OF COURT11

No action will lie against any person for procuring an erroneous decision of a court of Justice.
This is so, even though the court has no jurisdiction in the matter and although its judgment or
order is for that or any other reason invalid. A court of Justice is not the agent or servant of the
litigant who sets it in motion so as to make that litigant responsible for the errors of law or fact
which the court commits. Every party is entitled to rely absolutely on the presumption that the
court will observe the limits of its own jurisdiction and decide correctly on the facts and law. No
action will lie against any person for issuing execution or otherwise acting in pursuance of a
judgment or order, even though it is erroneous. A valid order. however, erroneous in law or fact,

11
supra note 1 at 344

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is a sufficient justification for any act done in pursuance of it. The remedy of the aggrieved party
is to appeal and not to bring an action for damages. But if the proceeding or process causing a
person injury terminated in his favour, that person can institute an action of malicious
prosecution or malicious legal process if the conditions for these actions as mentioned above are
satisfied.

3.6 DAMAGES12

Damages in awarding damages for malicious arrest the costs and expenses incurred by the
plaintiff by reason of the arrest and in obtaining his discharge must be taken into consideration.
In the case of loss of goods arising from wrongful attachment the measure of damages will be the
value of the goods at the time of the wrongful attachment. The litigation and delay and also any
depreciation of the goods by an intermediate fall in the market, between attachment and sale, are
the natural and necessary consequences of the unlawful act for which damages are recoverable.
If the defendant's act was without a probable cause and evinced a malicious motive on his part
damages should be in the nature of penalty as well as of compensation.

When a person maliciously and without any probable cause, by means of civil proceedings,
procures execution or distress against the property of another, an action lies against him for
damages.

12
supra note 1 at 344

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 4. MAINTENANCE

Maintenance is the officious intermeddling by pecuniary or other assistance with another's

litigation in which the intermeddler has no concern. Champerty is that form of it in which the
intermeddler renders assistance by bargaining for a share of the profits of litigation. Champerty
is an illegal agreement in which a person with no previous interest in a lawsuit finances it with a
view to sharing the disputed property if the suit succeeds. In India, the old English statutes
against maintenance and champerty have no counterpart13. Therefore, it has been held that an
action for the tort of maintenance can lie here only on grounds analogous to those for malicious
abuse of process. The plaintiff must prove also his success in the previous suit, want of
reasonable and probable cause, and malice. Malice means some improper motive like a desire to
injure or harass the plaintiff. In England by the Criminal Law Act of 1967, both maintenance and
champerty have ceased to constitute an offence or as furnishing a cause of action in tort. In view
of the restricted scope of the wrong, actions for maintenance can rarely arise in this country.

The new expression which describes the unethical practice of advocates like champerty is
'ambulance chasing litigation'. An advocate chasing an accident victim, securing his signature
on the 'brief' and then appropriating a huge amount of share in damages awarded by the tribunal,
is a wrongful practice, denounced by judges as against the professional code of ethics. To
discourage this ‘misconduct’, court refused to release money in favour of the council, and
specifically directed release through fixed deposit bonds in national banks.

4.1 SPECIAL DAMAGES14

In an action for the tort of maintenance, the plaintiff should prove special damage. In Neville v
London Newspaper Ltd," the plaintiff was developing his estate in Sussex into a seaside resort
and offered prizes of freehold land for persons who would suggest a suitable name for the place
and send three guineas. A number of persons responded. The defendants published articles in the

13
RAMASWAMY IYER, THE LAW OF TORTS 441-442 (9th ed., Lexis Nexis) (2006)

14
DR. J.N. PANDEY, LAW OF TORTS 215 (5th ed., Central Law Publications) (2005)

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newspaper stating that the plaintiff's offer of lands was fraudulent and was really for sale at a
profit and assisted a number of persons to file suits and recover the moneys paid. The plaintiff
who had to pay back the money and costs, sued the defendants for maintenance. The House of
Lords held that the wrong of maintenance did not belong to the category of invasions of absolute
rights for which nominal damages could be got but was actionable only on proof of damage. As
for the damage complained of, it was the consequence of the plaintiff's own fraud and not of the
defendant's wrongdoing and therefore, the plaintiff's action failed. It cannot be regarded as
damage sufficient to maintain an action that the plaintiff has had to discharge his legal
obligations or that he has incurred expenses in endeavouring to evade them.

4.2 DEFENCES15

In this action it is open to the defendant to show a lawful justification for assuming another's suit,
e.g. a common interest as between co-owner or between landlord and tenant, near relation of the
person assisted and motives of charity. It is no defence that the maintained suit resulted in favour
of the plaintiff therein. This fact may, however, disprove the causal connection between the
damage and wrong complained of.

15
supra note 12

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 5. CASE LAWS

1. Abrath vs. North Eastern Railway16

In this case, Abrath, the plaintiff was a surgeon, who had attented one M for bodily injuries
alleged to have been sustained in a collision upon the defendant’s Railways. M brought an action
against the defendant railway company and recovered a large sum against the company.
Subsequently, the directors received certain information which they laid before their counsel
who advised that Abrath and M should be prosecuted for conspiring to defraud the company.
Accordingly, the company prosecuted them. Abrath was aquitted. Abrath then sued company for
malicious prosecution.

At the trial in the High Court it was proved that:

(1) defendants took reasonable care to ascertain the facts,

(2) they honestly believed that the company had been defrauded.

The high court gave judgment for the defendants as the plaintiff failed to prove want of
reasonable and probable cause, his suit could not succeed.

2. Sunit Kumar vs. Ladu Ram Sulania17

In this case, the respondent/landlord lodged F.I.R. against the appellant/tenant alleging criminal
trespass over open land, near tenanted 'Kothari' and also creating nuisance by way of stocking
empty boxes and other material and throwing rotten vegetables and garbage. The trial Court
acquitted the tenant. The tenant filed a suit against the landlord for damages for malicious
prosecution which was dismissed. Thereafter he filed an appeal before the High Court. The
landlord contended that mere acquittal in criminal case does not amount that the F.I.R was false
one. But the tenant made his submissions relied upon Satdeo Prasad v. Ram Narayan in which it
was held that "accusation against the plaintiff in respect of offend which defendant claims to
have seen him commit and the trial ends at acquittal on merits, presumption will be not only that
plaintiff was innocent but also that there was no reasonable and probable cause for accusation.

16
(1886) 11 App Cas 247
17
AIR 2004 Rajasthan 30

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Admitting the submission of the appellant/tenant the High Court held that in view of the
evidence available on record that one `Kothari’ along with open land was given on rent to the
appellant and remaining offences were also found false. The landlord did not seize any articles or
filthy material from the said place and his statement did not find corroboration. Landlord
completely failed to prove any of these allegations by any positive evidence. It was also evident
that both tenant and the landlord filed a number of cases against each other. Hence malice is well
proved. Therefore, the F.I.R. lodged by the landlord was false to his knowledge and the tenant
appellant was prosecuted by the defendant without reasonable and probable cause.

3. State of Punjab vs. Des Raj18

In this case, the plaintiff was doing business in foodgrains and was having a very good
reputation. A 'Food Inspector' was having ill-will against the plaintiff as he did not supply him
one bag of rice free of cost. Due to that grudge, he falsely implicated the plaintiff. The
prosecution was launched against the plaintiff on the basis of a false report made by the food
inspector. The trial Court acquitted the plaintiff and held that the prosecution had failed to prove
the allegations levelled against the accused. The allegations were found to be false. After his
acquittal, the plaintiff filed the suit for recovery of damages for his malicious prosecution. The
Court held that the arrest and detention of the plaintiff was without reasonable and probable
cause and his prosecution was totally malicious. Therefore the plaintiff was entitled for damages.
The appeal, filed by the State of Punjab against the said judgment was dismissed. Thereafter,
against the aforesaid judgments, State of Punjab filed the Second Appeal in the High Court. The
High Court held that the appellant failed to prove illegality in the findings of facts recorded by
the Courts below, hence the prosecution launched against the plaintiff without proper
investigation, was totally malicious.

18
AIR 2004 Punjab and Haryana 113

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4. Madan Mohan Singh vs Bhirgunath19

In this case the appellant lodged information at a police station alleging that he identified the
plaintiff as having taken part in the dacoity in his house. As a result of the information the police
searched the house of the plaintiff and placed him under arrest. The plaintiff was subsequently
produced before the magistrate and an order of remand was taken. The proceedings ended there
and there was no further formal charge. In the result. the plaintiff suffered imprisonment in
consequence for 39 days and his reputation was also damaged. In the suit for damages for
malicious prosecution, it was held that the defendant must be taken to have actively instigated
the prosecution of the plaintiffs and that the magistrate in remanding the plaintiff acted
judicially, and that the action was well founded and that the appellants were liable to pay
damages in tort to the plaintiff.

Ramaswami. J. said: "The foundation of the action for malicious prosecution lies in the abuse of
the process of the court by wrongfully setting the law in motion and it is designed to discourage
the machinery of justice for an improper purpose. In order to succeed, the plaintiff must prove
that the proceedings were malicious, without reasonable and probable cause, that they terminated
in his favour and that he had suffered damage. The action lies for the malicious prosecution of
certain classes of civil proceedings, for instance, falsely and maliciously presenting a petition in
bankruptcy or a petition to wind up a company.

5. Herniman vs Smith20

In this case, a timber merchant had supplied timber from time to time to a builder. On several of
those occasions, deliveries of timber were made accompanied by fraudulent documents, which
induced the builder to pay to the timber merchant money to which the latter was not entitled. The
builder preferred against the timber merchant a charge of having unlawfully and knowingly
conspired with one R to cheat and defraud the builder. At the trial the timber merchant was found
guilty and sentenced to imprisonment. But in the Court of Criminal Appeal the conviction was
quashed. Then the timber merchant brought an action against the builder for malicious
prosecution. The latter was held not liable by the House of Lords. Their lordships said that in the

19
AIR 1952 Pat 283
20
1983 AC 305

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circumstances there was reasonable and probable cause for a prosecution and it was the function
of a Judge to decide whether the proved facts amounted to a reasonable and probable cause or
not. Lord Atkin said: "It is not required of any prosecutor that he must have tested every possible
relevant fact before he takes action. His duty is not to ascertain whether there is a defence but
whether there is a reasonable and probable cause for a prosecution." Reasonable and probable
cause was defined "as 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 ordinary, 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".

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 6.CONCLUSION AND SUGGESTION

Malicious prosecution is the malicious institution of criminal proceedings on another without any
just or probable cause. It is an abuse of the process of court by wrongfully setting the law in
motion on a criminal charge. It is necessary for the plaintiff to prove that some damage has been
suffered as the result of prosecution. Malice can also be proved by establishing the fact that there
were some previous conflicts between two persons or they hold a personal grudge against each
other.

There are some elements of malicious prosecution which the plaintiff has to prove in order to
claim damages. Like, institution of legal proceedings, termination of proceedings in favour of
plaintiff, absence of reasonable and probable cause, presence of malice, and damage has been
caused as a result. Without the presence of one of these elements the suit for malicious
prosecution shall fail.

In the present case scenario, people files suit against another because they hold personal grudge
against another. So, to defame them or to lower their present status in the society, they file false
cases due to which false proceedings take place. Due to these proceedings, the time and money
of the plaintiff is wasted. The time of court is also wasted as lakhs of cases are already pending
in the courts of India. The courts could give their time to other cases rather than spending their
time on false cases. So, tort of malicious prosecution gives the plaintiff a chance to recover the
losses in terms of money and time, but for that he has to prove the essentials of the malicious
prosecution, failing to do so will result in acquittal of the defendant. The defendant can also
defend himself by proving the fact that the suit was brought out of probable and reasonable
cause.

The tort of malicious prosecution is also in accordance with the law and society as it watches
over the use or misuse of legal rights of the people. It checks whether the society and law is
going together with each other or not. It gives justice to those who suffers the damage of
reputation through false accusations and proceedings. Law means Justice. So, the person who
suffered gets his justice through tort of malicious prosecution and this helps in maintaining peace
and harmony in the society. The society keeps its belief in the laws made by the legislature and
the judgements of the court. They faith of getting justice is not broken and the people will keep
believing in the legal system of India.

Thus, malicious prosecution is a tort which reasonably restricts a person’s legal right to sue a
person.

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 BIBLIOGRAPHY

BOOKS REFERRED
 LAW OF TORT by P.S.A. PILLAI
 LAW OF TORTS by J.N. PANDEY
 THE LAW OF TORTS by RAMASWAMY IYER
 THE LAW OF TORTS by RATANLAL & DHIRAJLAL

WEBSITES REFERRED
 WWW.THESTUDENTLAWYER.COM
 WWW.LEGALSERVICEINDIA.COM

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