“Malicious Prosecution” was extensively defined in the landmark case of West Bengal State Electricity Board v. Dilip Kumar Ray.[i] Malicious is a fixed hate or something done with evil intention or motive not as a result of sudden passion. Malicious prosecution is also termed as malicious use of legal procedures. The Hon’ble Supreme Court observed the difference between malicious use and malicious abuse of legal procedures. The former is the initiation of a legal procedure with malicious intent and the latter is the employment of legal procedures for attainment of an objective other than that purported by law.
The evolution of this tort dates back to the reign of Edward I when the crime of conspiracy was recognised. The English Jurisprudence being the most advanced in the 18th and 19th was the first to take this tort into cognisance. In Saville v Roberts,[ii]CJI Holt in 1698 for the first time clearly established the principles underlying this tort in England. He asserted that the suit labelling false allegations against the plaintiff shall result in damages of his reputation or his safety or his property. In 18th century there was a surge in the use of the criminal system as an instrument for accomplishing ulterior and personal motives such as revenge, malice, public disgrace or some other kind of unfair advantage. This started a trend of escape of guilty and conviction of the innocent. The misuse became most prevalent in the ‘qui tam proceedings’ which were the summary suits and due to its painless nature these suits were filed by wide section of the society for monetary incentives. However, the tort of malicious prosecution also extended to more serious crimes like that of perjury. It was in the 19th century that this tort witnessed significant evolution when the critics drew attention to the inability of the courts in managing the bulk of prosecutions.
The United States of America became an early bird to recognise and adopt this concept soon after England. The concept evolved significantly after its endorsement and was more flexible as compared to that in England. Chief Justice Taney, in Dinsman v. Wilkes[iii]was the person to acknowledge the tort by opining its applicability in criminal proceedings and further pinned its extension to the civil proceedings. England restrained itself from using the tort in civil proceedings at that time on certain specified grounds. The tort in both the countries served as a deterrent to the persons initiating erroneous proceedings.
The underlying philosophy of this tort is that false accusations against innocent members of the society undermines the legitimacy of law. There is very strong nexus between society and a person’s reputation and has been rightly held by Jeremy Bentham that, “Reputation is reflection of social acceptance”.[iv] Malicious prosecution against any person may have grave consequences to person’s life and liberty as criminal prosecution of a person is attached with social prejudice. In India, the prosecution of a person leads to the tarnishing of his social image. Supreme Court in Deepak Bajaj v State of Maharashtra and others[v]has confirmed that right to reputation is an essential ingredient of right to life and liberty enshrined under article 21 of Indian constitution which entitles a person to live with dignity. In absence of the tort of Malicious prosecution there will be no fear of consequences of falsehood and as a result the reputation of a person will become vulnerable to injury. The bulky legislation and the liberal interpretations in Indian judicial system have facilitated the use of the legal instruments for personal interests. There has been significant trend among the women of initiating false legal proceedings under section 498 of IPC.[vi]
The Indian courts have several times reiterated the concept tailored by American jurisprudence that malicious prosecution is not favoured by law. In Lalita Kumari v Government of U.P. and others[vii] the apex court iterated the imperative of the Indian legal system to maintain a balance between the rights of the complainant, society to bring wrongdoer to justice and the rights of accused against baseless accusations. It further opined that every citizen has the right not to be subjected to malicious prosecution and hence it shall be ensured by the investigating authorities that no innocent person is implicated in these proceedings. In Gangadhar Padhy v Prem Singh[viii] the Delhi High Court opined that the action for malicious prosecution be properly guided and its true principle shall be strictly adhered to since public favours exposure of crime. In Mahadev Todale v Frankfinn Aviation Services Pvt[ix] the Delhi High Court opined that it is highly desirable that those suspected of crime be subject to process of criminal law. It is necessary to ensure that every individual is accorded freedom to protect his person and property without any fear of counter suit on his failure as well as immunity to bring in good faith anti-social members to justice.
Indian law of malicious prosecution has been derived from the English legal system and is very closely associated with it. There are many similarities between the two systems which is evident at each level. There are five essential elements under the Indian legal system namely:
- PROSECUTION BY THE DEFENDANT
For establishing the tort of malicious prosecution against a person the plaintiff need to establish that there has been prosecution and that the prosecution was launched by that person. There is no clear definition of the term ‘prosecution’ in the Code of Criminal Procedure, 1973. Prosecution in a common parlance is limited to criminal proceedings but for the purpose this tort the scope of the term is extendable. In R.R. Sonver & Ors. vs Mukhtyar Singh & Or[x], Madhya Pradesh High Court held that the term prosecution shall not be used in its technical sense for the purpose of malicious prosecution which lies for certain civil proceedings like petitions in bankruptcy or to wind up the company as it involves natural presumption of damage to reputation. In S.T. Sahib v N. Hasan Sahib and others[xi], the learned judge held that the term prosecution is generally used for criminal proceedings but for the purpose of malicious prosecution the term shall not be taken in its restricted sense as mentioned under the CrPc. In Kapoor Chad vs Jagdish Chand[xii], the Punjab and Haryana High court held that the term prosecution shall be used in its wider sense and is not only meant for criminal proceedings. Hence the prosecution can be of criminal as well as some civil proceedings which are of such a nature as to cause tarnishing of the good name of the plaintiff.
- Commencement of Prosecution
A prosecution comes into existence when it is made before the judicial officer or tribunal and not before the executive authorities like police. In Nagendra Nath Ray v Basanta Das Bairagya[xiii]the suit for malicious prosecution was not maintainable as there were merely police proceedings. In Bolandana Pemmayya vs Ayaradara[xiv], the court held that mere police enquiry or complaint does not set judicial authorities into motion and hence does not amount to prosecution. There were two different views related to the commencement of the prosecution, one was that the prosecution began only after the process is issued and there shall be no action if the complaint was dismissed as laid down in the case of Khagendra Nath vs Jacob Chandra[xv]. The other view was that the prosecution commenced as soon as the charge was made before the court before the process is issued.
The first proper test was applied in Mohammad Amin v Jogendra Kumar[xvi] where the privy council laid down that the test to be applied is not whether the proceedings have reached at a stage at which they be accorded the status of prosecution but the test is to determine whether they have reached a stage at which sufficient damage has been caused to the plaintiff. Hence formal trial or acquittal is not a pre-requisite and the claim of damages can be maintainable once the criminal law is set into motion. The same illustration has been iterated in the recent case of Roop Singh and Anr v Amarjit Singh.[xvii] The apex court Gaya Prasad v Bhagat Singh[xviii] held a contrasting opinion that mere lodging of complaint under section 200 of CrPc or as an F.I.R. without anything else would not amount to commencement of prosecution. The court made a lucid distinction between the above judgments and the present case in the sense that the former case involved criminal complaint, its cognisance by magistrate, examination and enquiry in an open court and consequently dismissal whereas in the latter there was merely registration of F.I.R. with no further developments.
- Defendant as the prosecutor
The defendant shall be termed as a prosecutor only when he is actively involved throughout the proceedings and has done more than mere lodging of the complaint. In Martin v Watson [xix] the House of Lords said that the prosecutor shall in the case of malicious prosecution be substantially responsible for the initiation of proceedings. In Periya Goundan v Kuppa Goundan[xx] the Madras High Court opined that a person primarily responsible for prosecution is the prosecutor. In S.T. Sahib v N Hasan Sahib and others[xxi] the court defined the prosecutor as a man who is actively instrumental in putting the law into force. He can file either through himself or his agent or his counsel. If a person who gave only honest information about the plaintiff to the police without any further activity he cannot be called a prosecutor. Hence the person giving of honest information is an informant not a prosecutor. In Gaya Prasad v Bhagat Singh[xxii], the Privy Council held that the conduct of the person before and after the complaint shall be taken into consideration to determine whether he is prosecutor or not.
- ABSENCE OF REASONABLE AND PROBABLE CAUSE
Professor Winfield observed that both the words probable and reasonable are synonymous to each other and are used in conjunction which is a heritage from redundancies in which old pleaders delighted.[xxiii] In Hicks v Faulker[xxiv], Hawkin provided the definition of reasonable and probable cause as, “an honest belief in the guilt of the accused based upon full conviction founded upon reasonable grounds of existence of state of circumstances which assuming to be true would reasonably lead a prudent and cautious man placed in place of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.” The definition of Hawkin was further approved by House of Lords in Herniman v Smith[xxv]. ‘Probabilis Causa’ is the Latin term which means for good reason. In S.T. Sahib v N Hasan Sahib and others[xxvi], it was held that words reasonable and probable are used in conjunction. Salmond recognises that both the words are synonymous to each other. However probable cause shall not mean sufficient cause since the outcome of the proceeding is uncertain to the prosecutor.
There shall be reasonable and probable cause if the prosecutor has sufficient ground to lodge the criminal proceedings. However the only satisfaction on the part of the prosecutor is needed. Mere suspicion is not enough and to the contrary firm belief in the probability of the conviction is also not needed. In Tempest v Snowden[xxvii]Lord Justice Denning observed that honest belief in the guilt of the person is not necessary. There may be circumstances where the prosecutor has the reasonable and probable cause but he may not be hundred percent satisfied as to the guilt of the person. In Kapoor Chand v Jagdish Chand[xxviii] it was held that the reasonable and probable is an objective determination. The belief shall be made on grounds and shall be arrived after due enquiry. Mere suspicion is not enough and some further steps shall be taken to satisfy one. In Abrath v North Eastern Railway Co.[xxix] the prosecutors sought legal advice before lodging the complaint. It was held by the court of law that the prosecutor had taken reasonable steps to satisfy themselves of the true facts. The duty is only to find out honestly into the allegations and there is no need to scrutinise each and every facet deeply as it is the work of the courts to find. The onus of proof of absence of reasonable and probable cause rests upon the plaintiff as has been clearly laid down in Antarajami Sharma v Padma Bewa[xxx].
A malicious act is an act which is characterised by a pre-existing or accompanying malicious state of mind. Malice in law is different from malice in fact. Malice in fact is an actual or express malice and has replaced the old notion of improper motive. It is not to be established by legal presumptions but by the evidences at present. It is an ulterior intent to cause injury. This is commonly referred to as motive and it is irrelevant while establishing certain offence. However the presence of motive can be used to ascertain the intention of a person and its presence can also increase the value of damages awarded. Malice in law is commission of a wrongful act intentionally but without any just cause or excuse. It is to be established by use of the legal and factual circumstances of the case. It does not depend upon defendant’s state of mind. Malice in Law is essential to be proved in a given proceeding. For the purpose of malicious prosecution the state of mind of the defendant becomes important. Malicious is fixed hate or evil motive and not the result of sudden passion.
The Delhi High Court in Rizwan Shah v Shweta Joshi and others[xxxi] held that proceedings for malicious prosecution shall initiate from a malicious spirit that is from indirect and improper motive. It is an improper motive other than to vindicate public justice or private right. It is necessarily not ill will, enmity or spite. In Raja Braja Sunder Deb and others v Bamdeb Das[xxxii] it was held that malice is wrong and indirect motive. A prosecution cannot be called malicious mainly because it was initiated in anger. A prosecutor may be wrongheaded in extremity but if he has made allegations on honest belief he cannot be guilty of malicious prosecution. In M. Rajagopala Nayagar Spencer and Co. Ltd. and others[xxxiii] the proceedings were started by defendant who informed the village magistrate in good faith so that action can be taken. The defendant shall not be held liable for malicious prosecution because there was no malicious intent. The malice shall be accompanied with the absence of reasonable and probable cause for the suit to proceed. In Raja Braja Sunder Deb v Bamdeb Das, Bombay High court held that malice is not enough and there must be absence of reasonable and probable cause. Generally, the absence of a reasonable and probable cause implies existence of malice hence it is to be seen whether the accuser instituted the proceedings in furtherance to justice, if not he is held to have malice. However if there exists malice but there is reasonable and probable cause then the action for malicious prosecution cannot be initiated. In Allen v Food it was held that a lawful act does not become unlawful merely due to bad motive. In Bharat Commerce and Industries v Surendra Nath Shukla[xxxiv] it was held that a party may be actuated by malice yet there may be reasonable and probable cause for prosecution.
- TERMINATION OF PROCEEDINGS IN PLAINTIFF’S FAVOUR
It is also necessary that the proceedings shall terminate in favour of the plaintiff so that the plaintiff can come to the court of law with clean hands. It does not mean judicial determination of his innocence but it means absence of judicial determination of his guilt. In Reynolds v Kennedy[xxxv] it was held that original conviction is bar to an action for malicious prosecution. In Shri Ram Singh Batra v Smt Sharan Premi[xxxvi] the Delhi High court dismissed the suit as the plaintiff did not come with clean hands and the proceedings against him still going on. The action was premature as the plaintiff had yet to obtain acquittal or discharge.
There has been plethora of case in which the courts have ruled that mere acquittal cannot prove presence of malice per se. In Ram Lal v Mahendra Sing[xxxvii] it was held that merely because the plaintiff was acquitted as the prosecution failed to prove the case beyond doubt could not lead the defendant guilty of malicious prosecution. In Nandlal v State of Rajasthan[xxxviii]it was held that merely because the suit ended in trial does not prove that accusation by the prosecutor were baseless. In S.T. Sahib v N Hasan Sahib and others[xxxix] it was held that the word ‘end’ of trial is an operative word hence if the plaintiff was convicted and later his conviction was quashed in an appeal then also suit for malicious prosecution can be instituted. If the plaintiff was convicted of a similar but a less serious offence then that for which he was charged of then also the suit for malicious prosecution can be instituted against the defendant for the grave offence. Hence the suit can end favourably in form of discharge, acquittal, or discontinuation.
- DAMAGES TO THE PLAINTIFF
It is an essential element to prove that the plaintiff has suffered substantial damages as a result of such proceedings against him. The plaintiff may suffer following damages:-
- Damage to reputation which is obvious result of the false charge of the criminal offence.
- Damage to person when he is stressed mentally or when he is deprived of his liberty on being arrested.
- Damage to property when the person has to spend money in the legal proceedings for his defence.
- In case of criminal prosecution the suit for malicious prosecution shall be filed within one year from the date when the plaintiff is acquitted or the prosecution is terminated under article 23 of Limitation Act 1908
- In case of civil proceedings the suit for malicious prosecution shall be filed within two years from the date when malfeasance, misfeasance or nonfeasance takes place under article 36 of the Limitation Act 1908
[i] West Bengal State Electricity Board v. Dilip Kumar Ray, A.I.R. 2007 S.C. 976
[ii] Saville v Roberts,1 Ld Raym 374
[iii] Dinsman v. Wilkes, 53 U.S. (12How) 390, 402 (1851)
[iv] MALICIOUS PROSECUTION: ESSENTIALS AND DEFENCE (May 30, 2020,) ttps://www.legalbites.in/malicious-prosecution/#_ftn11.
[v] Deepak Bajaj v State of Maharashtra and others, A.I.R 2009. SC 628
[vii] Lalita Kumari v Government of U.P. and others, A.I.R. 2012 (SCW) 1831
[viii] Gangadhar Padhy v Prem Singh, 2015 1 AD(Delhi) 132
[ix] The-laws.com. 2020. MAHADEV I TODALE Vs. FRANKFINN AVIATION SERVICES PVT. LTD.. [online] Available at: <http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=107102039300>
[x] R.R. Sonver & Ors. vs Mukhtyar Singh & Or, 1982 AIR 1325
[xi] S.T. Sahib v N. Hasan Sahib and others, AIR 1957 Mad. 646 at p. 65
[xii] Kapoor Chad vs Jagdish Chand, A.I.R. 1974 (Punjab) 215
[xiii] Nagendra Nath Ray v Basanta Das Bairagya , 1929 I.L.R. 47 Cal. 25
[xiv] Bolandana Pemmayya vs Ayaradara , A.I.R. 1966 Mysore13
[xv] Khagendra Nath vs Jacob Chandra A.I.R. 1977 N.O.C. 207(Gau)
[xvi] Mohammad Amin v Jogendra Kumar AIR 1947 P.C. 103
[xviii] Gaya Prasad v Bhagat Singh (1908)ILR30ALL525
[xix] Martin v Watson (1995) 3 All ER 559
[xx] Periya Goundan v Kuppa Goundan AIR 1919 Mad 229 (2) (D)
[xxi] S.T. Sahib v N Hasan Sahib and others I.L.R. (1908) 30 All 525 (p.c.)
[xxii] Gaya Prasad v Bhagat Singh (1908) ILR 30 All 525
[xxiii] Percy Henry Winfield, J. A. Jolowicz & Tom Ellis Lewis, Winfield on tort (1967).
[xxiv] Hicks v Faulker (1878) 8 Q.B.D. 167, 171
[xxv] Herniman v Smith (1938) A.C. 305, 316.
[xxvi] S.T. Sahib v N Hasan Sahib and others AIR 1957 Mad. 646 at p. 65
[xxvii] Tempest v Snowden (1952) 1 KBD 130
[xxviii] Kapoor Chand v Jagdish Chand, AIR 1974 P&H 215
[xxix] Abrath v North Eastern Railway Co.(1886) 11 A.C. 247
[xxx] Antarajami Sharma v Padma Bewa A.I.R. 2007 Ori 107
[xxxi] The-laws.Com. 2020. RIZWAN SHAH Vs. SHWETA JOSHI. [online] Available at: <http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=101102191400>
[xxxii] Raja Braja Sunder Deb and others v Bamdeb Das, A.I.R. 1944
[xxxiii] Lawyerservices.in. 2020. State Of Madras V Spencer And Company Limited On 10 July 1973 – Judgement – Lawyerservices. [online] Available at: <https://www.lawyerservices.in/State-of-Madras-Versus-Spencer-and-Company-Limited-1973-07-10>
[xxxiv] Bharat Commerce and Industries v Surendra Nath Shukla, A.I.R 1966 Cal 388
[xxxv] Basebe v Matthews (1867) L.R. 2 C.P. 684
[xxxvi] Shri Ram Singh Batra vs Smt. Sharan Premi , 133 (2006) DLT 126
[xxxvii] Ram Lal vs Mahender Singh , A.I.R. 2008 Raj 8, (2008) 2 MLJ 349
[xxxviii] Nandlal vs The State Of Rajasthan And Ors, 1970 WLN 90
[xxxix] Sahib vs N. Hasan Ghani Sahib And Ors, A.I.R. 1957 Mad. 646 at p. 65 S.T.
Shailja Mishra, Tort of Malicious Prosecution, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/tort-of-malicious-prosecution-by-shailja-mishra/.