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Malicious prosecution in simple terminology means an institution of unsuccessful criminal, or bankruptcy, or liquidation proceedings maliciously and without any reasonable and probable cause. The top civil lawyer in Delhi and even the best Supreme Court Lawyer in Delhi are often seen supporting the view that malicious prosecution is the abuse of the process of the court by wrongfully setting the law in motion.

When malicious prosecution causes actual damage to the party prosecuted it is regarded as a tort. However, in order to sue for malicious prosecution following essentials must be established:

1. Prosecution by the defendant:

The tort of malicious prosecution involves two elements, firstly that the plaintiff was prosecuted and secondly, that the defendant was the prosecutor. It is important to note that an action not extending to any arrest or seizure of property is not regarded as a good cause of action for malicious prosecution howsoever unfounded or malicious the same might be.

The term prosecutor used above means a person who is actively instrumental in putting the law in force for prosecuting another. In a case where the plaintiff was arrested by the police and then discharged by the magistrate, it was held by the court that suit for malicious prosecution was not maintainable as mere police proceedings are not the same thing as the prosecution.

2. The absence of reasonable and probable cause:

The plaintiff has to establish and prove that the defendant prosecuted him without any reasonable and probable cause. For the purpose of malicious prosecution defendant is deemed to have as reasonable and probable cause when:

a. He took care to be informed of the facts

b. He honestly believed his allegations to be true

c. The facts were such as to constitute a prima facie case

3. Malice:

The burden of proof is on the plaintiff, meaning that the plaintiff has to prove that the defendant had acted maliciously in prosecuting him. It is important to note the malice here does not mean malice in law.

4. Termination of proceeding in favour of the plaintiff:

In order to initiate a suit for malicious prosecution is essential that the prosecution was terminated in favour of the plaintiff.

In case a person is convicted by a court he cannot bring an action for malicious prosecution even if such a person can prove his innocence. On the other hand, if a person is convicted by the court and later the conviction is set aside by the court in the appeal then such a person can sue for malicious prosecution.

5. Damage to the plaintiff:

A person suing for malicious prosecution has to prove that he has suffered damage as a consequence of the prosecution complained of.

Malicious prosecution is a tort in which it is possible that aggravated damage may be caused. However, the concept of suing for malicious prosecution can be best understood by this example:

A theft is committed at Mr. X’s house. Mr. X informs the police about the theft. He also mentions that he suspects Mr. B to have committed the theft. As a result, Mr. B is arrested by the police but discharged by the magistrate. In such a situation suit for malicious prosecution is not maintainable. Also, if Mr. B after being arrested by the police was convicted by the magistrate then again the suit for malicious prosecution is not maintainable. However, if Mr. B after being arrested and convicted by the magistrate appeals against the conviction and thereafter the conviction is set aside then Mr. B can sue Mr. X for malicious prosecution. It is necessary that the person who is suing for malicious prosecution must have suffered some damage. In case no damage is suffered then a suit for malicious prosecution is not maintainable.

Suwaiba Malik

Suwaiba Malik

Suwaiba Malik, BA LLB (Hons.) Graduated from University of Kashmir Department of Law. Presently working with LawzGrid a part of Karmasquare as an In-House Lawyer and a Content writer. It is well known that “ignorantia juris non excusat” meaning ignorance of law is no excuse. Following this rule, I desire to educate people about law and by writing various blogs and articles I aim at making legal knowledge easily available so that they become aware about their rights and liabilities.

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