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  • The Indian Penal Code and the Law of Torts both define malicious prosecution.
  • The plaintiff can seek damages on the following three counts in a prosecution suit-Damage to the plaintiff’s reputation, Damage to the plaintiff’s person, Damage to the plaintiff’s property.
  • Indian case laws namely Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd, Girija Prasad v Uma Shankar Pathak, Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Pati are mentioned for a better understanding of notion of malicious prosecution.
  • Remedies available under malicious prosecution are public, private and criminal.


Criminal and civil proceedings with insufficient evidence are seldom prosecuted although criminal charges or civil lawsuits are occasionally filed intentionally in order to threaten, harass, libel, or harm the opposing party.Malicious prosecution is the term for such conduct. When one party intentionally and maliciously brings a frivolous lawsuit against the other, this is known as malicious prosecution.This can involve both criminal accusations and civil claims, which have basically the same basis of action. Malicious prosecution is defined under the Indian Penal Code as well as the Law of Torts. It is an abuse of the judicial system because it is designed to provide justice to the innocent, but innocent people are convicted under Malicious Prosecution. The defendant becomes the plaintiff, and the plaintiff becomes the defendant.A malicious prosecution case should be brought within a year after the malicious suit being filed. A criminal process against an innocent person without reasonable cause must be launched before a malicious proceeding may be carried out. The individual who files a malicious prosecution case must have incurred some sort of loss or suffering, and he must show it in court before the action may be started.


1. Prosecution by the Defendant: The plaintiff must establish that he/she (plaintiff) was prosecuted by the defendant as the first necessary element in a claim for damages for malicious prosecution.The term ‘prosecution’ refers to more than just a trial.It also refers to criminal processes that are appealed or revised. In the case of Musa Yakum v. Manilal, it was determined that the defendant's failure to commence the prosecution on a court's order is no justification if the Court was motivated to issue the order by the defendant's false evidence.The Court concluded in Khagendra Nath v. Jacob Chandra that just presenting the matter before the executive authorities did not constitute prosecution, and hence the malicious prosecution suit could not be pursued. It's worth noting that a departmental investigation by a disciplinary authority isn't the same as a prosecution.

2. Absence of Reasonable and Probable Cause: The plaintiff must additionally show that the defendant persecuted him without reasonable and probable cause in order to recover damages for malicious prosecution. In a malicious prosecution case, the issue of a lack of reasonable and probable cause should be evaluated based on the information presented to the court.In the case of Antarajami Sharma v. Padma Bewa, it was held that the plaintiff bears the burden of proving the lack of a reasonable and probable provision in a case of damages for malicious prosecution.It doesn't matter if there was reasonable and probable cause if the prosecutor didn't know about it. The withdrawal of a prosecution or the acquittal of an accused person does not imply the absence of reasonable and probable cause. If a guy chooses an indictment with various accusations, some of which have probable cause and others do not, his guilt for malicious prosecution is entire.

3. Defendant Acted Maliciously: Another crucial factor in a lawsuit for damages for malicious prosecution is that the plaintiff must show that the defendant prosecuted him intentionally rather than with the sole goal of carrying out the law. Malice does not have to be a sentiment of hatred, spite, or ill will, nor does it have to be a spirit of revenge, but it may be any inappropriate motive that motivates the prosecutor, such as gaining a private collateral advantage.

In Bank of India v. Lekshmi Das, the Court reaffirmed the Indian stance that malice must be proven in the absence of a probable and reasonable motive. The plaintiff's complaint must be brought in a spiteful attitudewith an indirect and inappropriate motivation rather than in the interest of justice. Malice can be inferred from a lack of honest confidence in the charge and as a result, a lack of reasonable and plausible basis for bringing the complaint.

It is not necessary for the defendant to be acting maliciously from the beginning of the investigation. An action for malicious prosecution can be brought if the prosecutor is initially innocent but later becomes malevolent. If the defendant has positive information of the accused's innocence during the pendency of a criminal case, the prosecution is malicious from that point forward.

4. Termination of Proceedings in the Favor of the Plaintiff: It is necessary to establish that the procedures complained of ended in the plaintiff's favor in order to recover damages for malicious prosecution. Termination in the plaintiff's favor does not imply a court decision of his innocence; rather, it implies that no judicial determination of his guilt has been made. Malice does not have to be a sentiment of hatred, spite or ill will nor does it have to be a spirit of revenge but it may be any inappropriate motive that motivates the prosecutor such as gaining a private collateral advantage.When the prosecution or the processes are still ongoing, no action may be taken. It is a rule of law that no one may claim that a lawsuit that is still ongoing is unfair.

5. Plaintiff Suffered Damage as a Result of the Prosecution: Another aspect that the plaintiff must establish in a complaint for damages for malicious prosecution is that the plaintiff experienced injury as a result of the prosecution. The plaintiff might so seek damages on the following three counts in a prosecution suit-

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


1. Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd:

The officer of the respondent corporation discovered some products missing while compiling inventory and verifying the stock record in Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd. The plaintiff was charged under section 403 of the IPC, but was granted the benefit of the doubt and acquitted. A claim for malicious prosecution was filed by the plaintiff. The plaintiff was unable to show that the cops had harassed him. The plaintiff had a realistic and plausible case for prosecution, and the fact that she was not harassed suggested that there was no malice, thus the accusation was dismissed.

2. Girija Prasad v Uma Shankar Pathak: The plaintiff in Girija Prasad v Uma Shankar Pathakwas a practicing advocate in Panna, Madhya Pradesh as well as a Jan Sangh leader who had started an agitation over food scarcity in the city and one Jan Sangh worker had gone on a hunger strike.

On January 2, 1965 Girija Singh (a sub inspector) was sent to manage the mob that had gathered outside the collectorate to support the movement. Then, there were some bullets fired from the sub inspector's handgun. He said that his handgun accidentally discharged when he was wrestling with someone who was attacking him. Girija Singh had filed a FIR on that day alleging that he had been attacked by someone. His watch had been stolen and the plaintiff Uma Shankar Pathak was on the scene inciting the mob against him. The plaintiff was detained on January 15th and freed on bail on January 18th after the case was examined. On June 30th, 1965 he was eventually acquitted. The plaintiff subsequently sued four people for malicious prosecution: the sub inspector who filed the F.I.R., the S.H.O. of the region who heard the report and two others engaged in the case.

The M.P. discovered that the plaintiff was not present at the time the report made by Girija Prasad was fraudulent and the plaintiff was appearing in front of a civil judge, Justice Verma. Girija Prasad was eventually charged with malicious prosecution while others were exonerated of the accusation and found not guilty.

3. Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Pati: In 1980, the plaintiff was the sarpanch of the hamlet of Shirputi, while the defendants no. 1 and 2 worked for the Zila Parishad as Gram Sewaks and teachers in Zila Parishad schoolsrespectively. The complainant claimed that he filed many reports alleging the defendants' wrongdoing. The report was filed against defendant number. 1 for misconduct, defalcation and account forgery as well as defendant no. 2 for absence from duty and other irregularities.

It is alleged that both defendants then devised a scheme to entrap the plaintiff in a criminal conspiracy and that defendant no. 1 had filed an F.I.R. with the police after being assaulted by the plaintiff while doing his responsibilities. Criminal procedures were initiated against the plaintiff based on the F.I.R. and the police investigation. The petitioner was found not guilty of the accusations levelled against him. Plaintiff was arrested by the police based on the F.I.R. filed by defendant no.1 and the criminal proceedings against him were conducted with malicious intent on the part of the defendants, it is claimed.

The case was begun without any valid grounds and as a result of the fraudulent prosecution his prestige and reputation were harmed and his stature as a sarpanch and politician was diminished in society. The plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause, and as a result the defendants are responsible to pay damages to the plaintiff in the amount of Rs 12,500.


In India, there are measures for dealing with malicious actions and criminal litigation although claimants typically have little recourse. The English legal system has been quite adaptable to changing circumstances but Indian legislators' conservative attitude and thinking hasn't really worked out for the public interest as there are currently no remedies for civil defamation suits. The logic of prosecution in India differs from that in England; it is judged to be a prosecution when the case has progressed to the point where the party defending the complaint has suffered calculable loss. In the Indian context, wrongful/malicious prosecution should be the most effective method for detecting cases of malicious prosecution because it directly targets prosecutor misconduct which is one of the primary sources of factual errors that leads to innocent people being found guilty of crimes they did not commit. There is currently no legislative or legal structure in place in our nation to compensate persons who have been unfairly imprisoned.It is not uncommon for persons to be acquitted by the High Court or the Supreme Court after serving long periods of time in jail. They have little possibility of reintegration into society or rehabilitation since they have spent the most of their lives behind bars, unseen behind the towering walls of jail.


  • Public Law Remedy:The accused person's basic rights are infringed by the malicious prosecution and the accused can then invoke writ jurisdiction under article 32 or 226 and seek redress from the writ courts including compensation for the victim who suffers bodily, mental and social injury. The entitlement to compensation under the civil law of tort does not prevent the use of a public law remedy.
  • Private Law Remedy: Under the vicarious responsibility theory of private law, a person who has been wrongly prosecuted can sue the state for monetary damages. The individual who is being wrongfully prosecuted might submit both cases at the same time.
  • Criminal Law Remedy: The public and private law remedies are both monetary in nature, but the criminal law remedy is a criminal action against the officials in question that must be taken by the relevant government.In accordance with the provisions of the Indian Penal Code and the Criminal Procedure Code, a person who has been the victim of malicious prosecution may seek that the relevant government take criminal law remedies action against the concerned public employee. The Supreme Court has ruled that an unlawful arrest cannot be undone by releasing the person who was detained. In such circumstances, the states should prosecute the officials who are accountable for the prosecution.


Malicious prosecution is still a growing legislation in India and it has not gotten the attention it deserves. Since the last decade, the frequency of fraudulent cases arising in marriage disputes, civil issues transforming into white-collar crimes and police agencies making unlawful arrests has only grown. State officials and private citizens have no fear of the law when it comes to making false claims in front of the courts. Much of it may be ascribed to the ineffectual and time-consuming process for prosecuting such offences as well as the lower courts' apathy in taking action when such acts are brought to their attention.Despite the fact that the Supreme Court and High Courts have repeatedly recognized the offence as a violation of a person's right to life and liberty, the legislature has shown little willingness to craft a well-defined statute to prosecute such criminals.Furthermore, given the endemic and sensitive nature of the issue, as well as the obvious inadequacies of the available remedies, there is an urgent need for an explicit law compensating victims of wrongful prosecution at the hands of the State machinery – establishing a State statutory obligation to compensate these victims as well as a dedicated judicial mechanism to carry it out.

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