1. The proceedings for malicious prosecution can only be initiated if the plaintiff who files the case of malicious prosecution was tried for the false charges by a tribunal or court of law. But even in proceedings at the police level, grave amount of injury to the reputation of the plaintiff takes place. The government had not bothered to implement the recommendations made by the Law Commission of India in its 277th report on the miscarriage of justice in 2018, which stated. “Surprisingly, India, with a population of around 1.5 billion, has no effective statutory/legal Mechanism for the wrongful prosecutions due to police and prosecutorial misconduct resulting in a pandemic of false cases which has not only destroyed the social fabric of the nation but also affected the over-burdened judiciary with alarming pendency of over 40 million cases,”[1]
  2. The onus of proof lies on the plaintiff. The most difficult element to prove is malice, as even in cases where malice exists, it is difficult to prove previous vengeance and to differentiate honest mistake from malice.
  3. Malicious prosecution proceedings can only be initiated in criminal cases and cases of bankruptcy. In india, the suit of malicious prosecution can only be filed for false criminal charges. In malicious prosecution, damages might be claimed in such an action under three heads:

(1) damage to the person

(2) damage to property, and

(3) damage to reputation, and that rule has prevailed ever since[2]

But as it was noted even in civil proceedings, damages under the three heads can occur. So why isn’t the remedy of malicious prosecution provided for false civil proceedings. In countries like U.K, the remedy of malicious prosecution extends to civil proceedings.


The lawmakers should take example from countries like U.S and U.K, and make more clear and fixed law on the tort of malicious prosecution.

Sometimes law becomes a tool of harassment, when the process which provides justice to people is used as a tool of harassment to malign the image of certain people.

The Indian legal system has over the time failed to address actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative approach behind and evolve laws of which they have got absolute discretion. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. One such instance can be discarding the doctrine which defines what can be called as a prosecution as it always differs from case to case, for instance in a suit inquiry might inflict sufficient amount of insult onto someone and successfully bring down their image whereas, in another case a complaint itself might have a potential to bring harm to someone’s reputation in the society of which such individual is an inhabitant.

The recognition of the tort of malicious prosecution has been done to safeguard individual interests, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. The malicious suits which have been on the rise, in absence of a concrete legislative framework which could help arrest, these trends where the legal procedure is being abused in order to gain wrongful benefit by subjecting parties to suits which are filed with a capricious intention. As there are no legal provisions which exclusively deal with such cases where there has been a miscarriage of justice, the article has scrutinized the legislative framework of England and also the approach of the courts over there, when it comes to dealing with those suits.

[1] Malicious prosecution,

[2] Savile v. Roberts (1698) 1 Ld. Raym. 874.

Aishwarya Says:

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