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Malicious Prosecution under Indian Tort law

Definition of ‘Malicious Prosecution’:

It was in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[1], that the Court defined the term ‘malicious prosecution’ in the following words:

“A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it, is a malicious prosecution.”

Key Elements to Prove ‘Malicious Prosecution’:

In order to prove malicious prosecution, the tort law demands that the plaintiff establishes these essential factors:

  1. That he was prosecuted by the defendant;
  2. That there was absence of a just and probable cause;
  3. That the proceedings were terminated in favour of the plaintiff;
  4. That the prosecution was initiated with a malicious intent without any objective of getting law into effect;
  5. That damage was inflicted on the claimant’s reputation or his safety or the security of his property.
#1. Prosecution by the Defendant:

The foremost constituent that a plaintiff requires to establish in a suit filed for damages against malicious prosecution is to prove that he was prosecuted by the defendant.

It was stated by the Court in the case of Khagendra Nath v. Jacob Chandra[2], that merely lodging a complaint before the executive authority did not amount to prosecution and, therefore, the action for malicious prosecution could not be maintained.

#2.  Absence of a just and probable cause:

In a suit of damages arising from malicious prosecution, the burden to prove that the defendant had persecuted him without any substantive and just cause, lies on the complainant. This was established by the Court in the case of Antarajami Sharma v. Padma Bewa[3].

#3. Proceedings were terminated in favour of the Plaintiff:

The plaintiff has to substantiate evidence to prove that the prosecution had concluded in his favour. A suit cannot be filed until the termination of persecution; it cannot be initiated during the pendency. An acquittal can be on account of him being declared innocent or any technical defect of the complaint.

If a conviction takes place, he is not entitled to initiate a case of malicious prosecution. His only legal remedy shall be to appeal against the conviction and if it results in his favour, then he can sue the defendant for malicious prosecution.

#4.  Defendant’s malicious intent:

Once again, the plaintiff has to prove conclusively that the persecution was the consequence of the defendant’s malicious intent. Malicious intent could be any ulterior motive on the part of that person, not in furtherance of justice.

The Court reiterated the fact in the case of Bank of India v. Lakshmi Das[4] that in proving malicious intent one must establish that there was no probable or just cause in initiating the persecution.

The defendant may not be acting with malicious intent from the beginning but even during the pendency of the case, if he comes to know about the innocence of the plaintiff, then also its continuance shall be considered malicious.

#5. Damages suffered by the Plaintiff:

The plaintiff has to establish conclusive evidence that damages were suffered by him due to the persecution. Thereafter, he can claim damages on account of three factors as established by the Court in the case of C.M. Agarwalla v. Halar Salt and Chemical Works[5].

  • Damage to the plaintiff’s reputation,
  • Damage to the plaintiff’s person,
  • Damage to the plaintiff’s property.

Cases Related to Malicious Prosecution:

#1. Girija Prasad v. Uma Shankar Pathak[6]

Uma Shankar Pathak was a practicing advocate in Panna of Madhya Pradesh. He initiated an agitation to protest against the food scarcity that was affecting the society. A sub inspector, Girija Prasad, was posted outside the collectorate in order to control the crowd that gathered there.  Some bullet shots were fired from his revolver and he lodged a FIR. In this FIR he named Uma Shankar Pathak as the person who was instigating the crowd against him. He accused the crowd of attacking him and amidst all this commotion his revolver misfired. Uma Shankar Pathak was arrested but finally acquitted.

After his acquittal, Uma Shankar Pathak sued four people, including Girija Prasad for malicious prosecution. The M P High Court came to the conclusion that the FIR lodged by Girija Prasad was false and he was held guilty of malicious prosecution.

#2. Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil[7]:

In this case the plaintiff was a sarpanch of a village whereas defendant number 1 was working as a Gram Sewak under the Zila Parishad and defendant number 2 was a teacher in a school under the Zila Parishad. The plaintiff had made various complaints about the two regarding their bad behaviour, misconduct, dereliction of duty, etc. In order to teach him a lesson and take revenge on him, both plotted against him and defendant number 1 filed a FIR claiming that the plaintiff had assaulted him. A criminal proceeding started and he was arrested. Later he was acquitted on the grounds that the complaint was made with malicious intent.

The plaintiff initiated a case of malicious prosecution wherein he claimed that being a politician and sarpanch, he had suffered a loss of prestige and reputation and also his status was marred.

The Court upheld the claims of the plaintiff and ordered the defendants to pay 12,500 as damages to him.


Malicious prosecution is initiated with an intent to cause harm to the defendant in one way or the other. The tort of malicious prosecution is a mechanism that safeguards individuals against unwarranted charges. It is essentially framed in a manner that it deters people from making frivolous charges against innocent individuals. It also entitles the aggrieved person to seek compensation for the loss he suffered due to malicious prosecution, like loss of reputation and prestige, loss of wages or business loss, mental agony or psychological trauma.

[1] AIR 2007 SC 976.

[2] 1976 Assam L.R. 379.

[3] AIR 2007 Ori. 107

[4] (2000) 3 SCC 640

[5] AIR 1977 Cal. 356

[6] AIR 1973 MP 79

[7] 2005(2) BomCR491