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Understanding Malicious Prosecution: Key Elements and How it Differs from False Imprisonment

Malicious prosecution can be defined as- “a judicial proceeding instituted by one person against another from wrongful or improper motive and without probable cause to sustain it.”

The Apex Court in the case of West Bengal State Electricity Board v. Dilip Kumar Ray, explained that there were or are two essential elements for constituting a malicious prosecution, namely-

(i) That no probable cause existed for instituting the prosecution or suit complained of.

(ii) That such prosecution or suit terminated in some way favourably to the defendant therein.

The Supreme Court explained that:

A malicious prosecution consists in maliciously causing the process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than which it was intended by the law to the effect the improper use of a regularly issued process.

The plaintiff must prove the following in a suit for damages for malicious prosecution:

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  1. That he was prosecuted by the defendant.

  2. That the prosecution was instituted without any reasonable and probable cause

  3. That the defendant acted maliciously and not with the mere intention of carrying the law into effect

  4. The proceedings complained of, were terminated in favour of the present plaintiff.

  5. The plaintiff suffered damage as a result of the prosecution.


There are two elements to this provision-

(a) There should be a prosecution.

(b) The prosecution should be initiated by the defendant.


It should be a criminal prosecution rather than a civil action. Prosecution means criminal proceedings against a person in a court of law. A prosecution is there when a criminal charge is made before a court or tribunal.


Although criminal proceedings are instituted in the name of the State, for the sake of malicious prosecution, a prosecutor is a person who instigates the case or proceedings.

In the case of T. S. Bhatta v. A. K. Bhatta, the defendant filed a complaint against the plaintiff. Thereafter, he was not quiescent. He moved the Sessions Judge in revision. He got himself examined as a witness in the Session trial. He also got himself impleaded in the criminal revision before the High Court.

The defendant knew the charge was false and acted without probable or reasonable cause. It was held that the defendant was the real prosecutor and was liable for malicious prosecution.


The plaintiff must prove that the defendant has acted without probable or reasonable cause.

“Reasonable and Probable Cause” can be defined as “an honest belief in the guilt of an accused person upon a full conviction, founded on reasonable grounds, on the existence of circumstances which assuming them to be true, would lead any ordinarily prudent man placed in the opposition of the accused, to the conclusion that the person charged was guilty.

The above definition was derived from the case of HICKS v. FAULKER

In the case of Shiv Shankar Patel v. Smt. Phulki Bai, the respondents were to face criminal prosecution for 8 years for alleged theft of crops, which were revealed to have been sown and harvested by the respondent, belonging to the husband of the respondent.

The prosecution ended in acquittal. It was said to have been launched without any reasonable or probable cause and the respondents were awarded compensation for the loss of their reputation in society and mental agony.


It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him i.e., there was the malice of some indirect and illegitimate motive in the prosecutor and the primary purpose of was something other than bringing the law into effect.

In the case of Antarajami Sharma v. Padma Bewa, the respondent who was a maidservant in his house had lodged a false complaint against the complainant/accused that he had attempted to outrage her modesty when she was working in his house.

The respondent-witnesses stated that they had seen the appellant committing the alleged offence on the respondent/defendant. In such a case, the Court held that the presumption which arose in favour of the plaintiff-accused could be extended to the witnesses. The Court held that the witnesses giving statements in the criminal complaint against the plaintiff with malicious intent are jointly and severally liable to pay damages.


The proceedings must have ended in favour of the plaintiff. Thus, we can say that the prosecution terminates proceedings in favour of the plaintiff, if-

(i) he has been acquitted on a technicality, or

(ii) Conviction has been quashed, or

(iii) The prosecution has been discontinued, or

(iv) The accused is discharged.

Initially, it was believed that the original conviction was a bar to the action, but a subsequent reversal of conviction through an appeal would not create a cause of action. But in later cases, it was decided that conviction on appeal would give rise to a cause of action i.e., proceedings terminating in favour of the plaintiff.

The Rajasthan High Court in Nandlal v. State of Rajasthan has observed that mere acquittal or discharge of any person can stem from many causes and does not always give rise to a cause of action.

When all the variables fall into place, only then can any acquittal or discharge be used to institute a suit for malicious prosecution.


It also needs to be proved that the plaintiff has suffered damage as a consequence of the prosecution, which is complained of. Even though the proceedings were terminated in favour of the plaintiff, he may have suffered damage because of the prosecution.

HOLT, C. J., observed in Savile v. Robert, that threefold damages may be caused to the plaintiff because of the prosecution-

First, damage to the man’s reputation as if the matter, where, he is accused, is scandalous.

Second, the danger to the person as in where he is put in danger to lose his life or liberty.

Third, damage to his property, where he is forced to expend his money on unnecessary charges to acquit himself of the crime of which he is accused.

In a claim for malicious prosecution, the plaintiff can claim damages on the following three counts-

  • (1) Damage to the plaintiff’s reputation.

  • (2) Damage to the plaintiff’s person.

  • (3) Damage to the plaintiff’s reputation.


The following are the differences between Malicious Prosecution and False Imprisonment-

(1) In Malicious Prosecution, imprisonment is procured by a judgment or other judicial order of the Court of Justice

But if an unlawful arrest, or detention or detention has been made, of the plaintiff by a private individual or procured through a merely ministerial officer of law, rather than a judicial officer of the Court, the wrong is False imprisonment.

Where the Inspector did not impose any distinction of his own, between the charge made by A and the arrest of B, and the arrest followed by A, A’s tort was that of false imprisonment.

Similarly, whereupon a complaint by the defendant under Section 420 of the Indian Penal Code, 1860, there was no malicious prosecution because of any judicial order.

(2) ‘Imprisonment’ is prima facie a tort’, but prosecution is not so in itself.

Therefore, in action for False Imprisonment, it is the defendant who must justify the imprisonment.

Whereas, in action for Malicious Prosecution, the plaintiff must allege and prove affirmatively the non-existence of reasonable and probable cause.

(3) Moreover, in action for Malicious Protection, the plaintiff must prove malice on the part of the defendant.

In False imprisonment, there is no requirement, and it is, therefore, no defence to say that detention by the defendant was without malice and due to a bona fide mistake.

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