Malicious Prosecution
Under tort law, malicious prosecution is the institution of judicial proceedings against a person without reasonable and probable cause and with an improper motive.
It is a wilful or reckless misuse of the legal process contrary to public policy.
In simple terms, it means falsely prosecuting someone out of malice or bad faith despite having no lawful basis for the case.
West Bengal State Electricity Board v. Dilip Kumar Ray
 Under the law of torts, malicious prosecution arises when a person maliciously institutes criminal proceedings without reasonable or probable cause, causing damage to the plaintiff.
To succeed, the plaintiff must prove five elements: prosecution by the defendant, absence of probable cause, malice, termination of the proceedings in the plaintiff’s favour, and resulting damage.
As held in West Bengal State Electricity Board v. Dilip Kumar Ray, malicious prosecution is distinct from abuse of process, and vague allegations of malice are insufficient.
In simple terms, a person can recover damages only by proving that the criminal case was filed maliciously, without reasonable cause, and caused actual harm.
Manik Das v. Dilip Biswas
As held by the Gauhati High Court in Manik Das v. Dilip Biswas, a plaintiff claiming damages for malicious prosecution must prove that the criminal proceedings terminated in their favour, were instituted without reasonable and probable cause, and were malicious.
The plaintiff must also establish that the prosecution caused actionable damage.
In simple terms, to recover damages, a person must prove they were wrongly prosecuted, cleared of the charges, that the prosecution lacked any valid basis, was motivated by malice, and caused actual harm.
Prosecution by the defendant
This essential ingredient requires the proof of two elements :
1. That there was “prosecution” .
2. Prosecution should be instituted by the defendant.
1. Prosecution
Under the law of torts, malicious prosecution requires that the underlying proceeding be a criminal prosecution, not a civil suit.
A prosecution begins only when a formal criminal charge is presented before a competent court or judicial authority.
In simple terms, a person can sue for malicious prosecution only if they were falsely subjected to criminal proceedings, not merely a civil lawsuit.
Proceeding before police authoritiesis no prosecution
Under the law of torts, police investigations are anterior to prosecution, and merely reporting a matter to the police does not amount to prosecution.
In Nagendra Nath Ray v. Basanta Das Bairagya, the court held that a suit for malicious prosecution is not maintainable where the case ends at the investigation stage without a formal judicial proceeding.
In simple terms, filing a police complaint or causing an arrest during investigation is not enough; a formal criminal proceeding before a court must begin before a claim for malicious prosecution can arise.
Bolandanda Pemmayya v. Ayaradara
As held in Bolandanda Pemmayya v. Ayaradara, prosecution means setting the law in motion by invoking the authority of a judicial officer.
A complaint made to the police that is investigated, found false, and closed without being placed before a court does not amount to prosecution, and no action for malicious prosecution lies.
In simple terms, a false police complaint alone is insufficient; unless the matter is taken before a judge or court, a claim for malicious prosecution cannot be maintained.
When does the prosecution commence
Under the law of torts, a prosecution begins only when a person is formally summoned before a judicial authority.
In Khagendra Nath v. Jabob Chandra, the court held that merely filing a complaint before an executive authority, without arrest or formal court proceedings, does not amount to prosecution.
Likewise, a preliminary notice issued by a magistrate that is followed by dismissal of the complaint does not constitute prosecution.
In simple terms, a police complaint or preliminary inquiry is not enough; unless a court formally summons a person to face criminal proceedings, no action for malicious prosecution can arise.
Proceedings before a quasi-judicial authority
Under the law of torts, proceedings before a statutory quasi-judicial authority may amount to prosecution.
In Kapoor Chand v. Jagdish Chand, a false complaint challenging a Hakim’s qualifications before the Board was held sufficient to support a claim for malicious prosecution after the Board confirmed his qualifications.
In simple terms, malicious proceedings before an official disciplinary or licensing authority can be treated as prosecution, allowing the innocent person to claim damages.
D.N. Bandopadhyaya v. Union of India
As held by the Rajasthan High Court in D.N. Bandopadhyaya v. Union of India, an internal departmental enquiry is not a prosecution, even if conducted in a quasi-judicial manner.
A disciplinary authority is not a judicial court, and setting aside its order does not give rise to a claim for malicious prosecution.
In simple terms, an unfair workplace or departmental enquiry, even if later quashed, does not amount to prosecution and cannot support a suit for malicious prosecution.
2. Prosecution should be instituted by the defendant
Under the law of torts, the second essential requirement of malicious prosecution is that the prosecution must be instituted by the defendant, who must be instrumental in setting the criminal law in motion.
In Balbhaddar v. Badri Sah, the Privy Council held that a person who supplies false information that naturally leads to prosecution is treated as the true prosecutor, even though the case is formally conducted by the State.
In simple terms, a person who maliciously causes a criminal case by giving false information to the police cannot escape liability by claiming that the government prosecuted the case.
Dattatraya Pandurang Datar v. Hari Keshav
Under the law of torts, a person is not regarded as the prosecutor merely for giving information to the police.
As held in Dattatraya Pandurang Datar v. Hari Keshav, merely lodging an FIR, even if it leads to arrest, does not amount to instituting prosecution where the police act on their own initiative.
The defendant must take an active and direct role in setting the proceedings in motion.
In simple terms, reporting a suspected offence to the police does not by itself create liability for malicious prosecution unless the person actively causes or directs the prosecution.
Pannalal v. Shrikrishna
As held in Pannalal v. Shrikrishna, a person is not liable for malicious prosecution merely for giving information to the police that later results in an acquittal.
To be treated as the prosecutor, the defendant must be actively instrumental in setting the criminal law in motion and taking a principal part in the prosecution.
Where the police independently investigate and conduct the case, this requirement is not satisfied.
In simple terms, merely reporting a crime or giving information to the police does not make a person liable; liability arises only if they actively drive or manipulate the prosecution.
Gaya Prasad v. Bhagat Singh
As held by the Privy Council in Gaya Prasad v. Bhagat Singh, whether a person is the real prosecutor depends on their conduct before and after making the complaint.
A person who honestly gives information and leaves the matter to the police is not liable for malicious prosecution.
However, one who knowingly makes false allegations, fabricates evidence, or uses false witnesses to procure a prosecution is treated as the true prosecutor.
In simple terms, an honest informant is protected, but a person who manipulates the police into prosecuting an innocent person can be held liable for malicious prosecution.
T.S. Bhatta v. A.K. Bhatta
Under the law of torts, a complainant who actively pursues proceedings after filing a complaint is treated as the true prosecutor.
In T.S. Bhatta v. A.K. Bhatta, the defendant continued the case through revision proceedings, appeared as a witness, and pursued the matter before higher courts despite knowing the charges were false, leading the court to hold him liable for malicious prosecution.
In simple terms, a person who knowingly files a false complaint and actively drives the case through different courts can be held liable for malicious prosecution.