Malicious Prosecution: A Comparitive Analysis of the position in England and India


Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation of proceedings against another without reason or evidence. This tort balances competing principles, namely freedom that each person should have in bringing criminals to justice and therefore the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the method of the court by wrongfully setting the law in motion on a criminal charge. The muse lies within the triangular abuse of the court process of the court by wrongfully setting the law in motion and is designed to encourage the perversion of the machinery of justice for a correct cause the tort of malicious position provides redress for people who are prosecuted without cause and with malice. So as to succeed, the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and therefore the case was resolved within the plaintiff’s favor. It’s necessary to prove that damage was suffered as a result of the prosecution.

It is the tort of initiating a legal action or causa against another party with malice and without evidence. The Prosecution isn’t deemed to have commenced before an individual is summoned to answer a complaint. In Khagendra Nath v. Jacob Chandrathere was mere lodging of ejahar alleging that the plaintiff wrongfully took away the bullock cart belonging to the defendant and requested that something shoud be done. The plaintiff was neither arrested nor prosecuted. It had been held that merely bringing the matter before the manager athourity failed to amount to prosecution and so the action for malicious prosecution couldn’t be maintained. there’s no commencement of the prosecution when a magistrate issues only a notice and not summons to the accused on receiving a complaint of defamation and subsequently dismissed it after hearing both the parties.

Concept of Malicious Prosecution

Settling tools or to bring someone right down to the negotiation table to get pecuniary benefits. The prominent and commonest of all the remedies for such a victim are cross suits claiming damages for initiation of a malicious suit. Such suits became prominent and are seen within the recognition of the tort of malicious prosecution which has been made to act as a safeguard for people, dealing with such claims which are known to the complainant as false and are mostly supported by a wrongful motive. Such suits have commonly inherited play and are mostly seen as score cases of medical malpractice, suits under criminal offences, punishment that is penal in nature and some suits under various other acts.

A defendant (plaintiff within the original suit) must prove reasonability in filing such suits and, must provide such facts which might have led any individual in his place acting rationally to come back to the identical conclusion as he discovered when he filed the suit. An individual while bringing forward a suit claiming damages for suit filed maliciously must prove that he was acquitted by a competent court and also the filing of such suit was done by the initial plaintiff (defendant during this case) with neither reason nor grounds. 

While the question of grounds arises, a defendant cannot claim that he initiated prosecution under the order of a competent body which itself was moved by the intel provided by such individual, for the reason for justice would be defeated and any individual claiming so could evade the law and easily leave. However, an individual acting upon the knowledge provided to him by any competitive person, if acts on such advice and files a suit, he wouldn’t be held answerable for, the element of malice was absent and anyone in his shoes would have acted similarly upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, wouldn’t be an honest reason for action as suspicion and claim must be differentiated the previous being supported facts which might have led any individual to believe possibility and not outright presence of guilt. Determination of the very fact, who the prosecutor is, essential while bringing a cross suit claiming damages for such prosecution. A prosecutor is that one that set the law in motion, it is a normal person, a personal related to the administration or as an example police, or perhaps a magistrate but, the rationale isn’t who proceeded but who was it that instigated or initiated the claim. A judicial authority can only be said to be a prosecutor when it is proved with none doubt that he had knowledge that the claims were false or he had a part of disbelief in reference to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts which he had reason to believe aren’t substantially true and supported those facts the magistrate ordered a look and also the defendant therein suit was prosecuted. Some extent must be clearly understood that the mere filing of a complaint viciously wouldn’t usually amount to the tort of malicious prosecution if, the magistrate dismisses the complaint as disclosing that to be no offence, this wouldn’t be a prosecution but a failed try to set the legal code into motion.

As has been outlined within the case of Mohammed Amin V. Jogendra Kumar Banerjee it would be a prosecution when the Magistrate takes cognizance of the complaint which then is followed by an examination of such complaint by means of inquiry in open court under section 202 of CrPC the prosecution is deemed to possess commenced. Various courts across the world have had their views of what is called as a prosecution which has not been solved but further added up to the pre-existing ambiguities regarding the identical. 

The Bombay High Court in Ahmedbhai V. Framji observed the commencement of prosecution shall be deemed to possess begun not when the magistrate takes cognizance and acts as per the provisions but, when he’s approached, and a complaint has been made maliciously with a view of such a complaint being entertained by such magistrate. However, a prosecution can’t be said to possess been initiated unless there are processes issued by the magistrate with relation to such a complaint, which too has been affirmed by the Calcutta and also the Madras supreme court. 

For a successful claim for damages of malicious prosecution, it’s been held by the courts that the initial prosecution must are for an offence which is criminal in nature and which is punishable by imprisonment and fine or both. This has been a drawback of the system of India, which has didn’t acknowledge the very fact that multiple times there’s enough damage caused to the individual’s repute although the prosecution is for a wrongful conduct, but the courts in India have ruled out that possibility in various instances. This development has been seen in England that no matter the character of the complaint, whether it’s one in every of criminal or civil nature, a suit for malicious prosecution are going to be maintainable. 

However, for a suit which is demanding damages for malicious prosecution for a civil complaint, the plaintiff would should show special damages which were incurred by him in maintenance of such suit against him. This has again been held in a very recent English case that it’d not be just a limitation of law for nor having the ability to take care of such suits claiming damages for a suit filed maliciously under any civil act, but it’d be severely unjust on behalf of the victim of such suit.

From time to time the needs have been voiced for the recognition of claims for a suit filed maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps to address such problems being faced by the public at large. England has been updating its laws as per the time demands but, the laws in India are nowhere near what could be called a competent law to deal with such claim.

From time to time the needs are voiced for the popularity of claims for a suit filed maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps to handle such problems being faced by the general public at large. England has been updating its laws as per the time demands but, the laws in India are nowhere near what may well be called a competent law to cater to such claim.

Essentials required to constitute Malicious Prosecution

In an action for malicious prosecution, the plaintiff must prove that –

He was prosecuted by the defendant.

The defendant acted without reasonable and grounds.

The defendant was actuated with malice

He (the plaintiff) was acquitted

He (the plaintiff) suffered damage.

Prosecution– The plaintiff must prove that the defendant instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a tribunal.

Without reasonable and grounds– The plaintiff must prove that the defendant prosecuted him without reasonable and probable cause.

Malice– The plaintiff must prove that there was malicious resolute the a part of the defendant in instituting criminal proceedings against him.

Acquittal or Termination of criminal proceedings– The plaintiff must prove that the criminal proceedings against him were terminated and he was acquitted. An action for malicious prosecution can not be maintained if the plaintiff is convicted.

Damage– The plaintiff must prove that he suffered loss or damage or injury as a consequence of the prosecution complained of (by the defendant). The damage is also with respect to the plaintiff’s person or property or reputation.

Differentiation between Malicious Prosecution and False Imprisonment

False Imprisonment – It imposes total restraint upon the non-public liberty of someone. it’s procured by a non-public individual or by an authorised official by asserting legal authority and is clear, a tort. There needn’t be any proof or malice on the a part of the defendant.

Malicious Prosecution – It doesn’t impose total restraint upon someone. it’s procured by judgment or judicial order. it’s not a tort by itself. Further, within the case of Malicious Prosecution, the plaintiff must prove malice on the a part of the defendant which isn’t a case in internment.

Position in England

“Reasonable and probable cause” is neatly summarised by Lady Justice Smith in Kirk Carlson Moulton Appellant v Chief Constable of the West Midlands as requiring:

“a finding as to the subjective state of mind of the police officer responsible”, i.e. did the prosecutor have a genuinely held belief as to the defendant’s guilt; and

“an objective consideration of the adequacy of evidence”, i.e. from the perspective of a “discreet and reasonable” person, was it reasonable on the available evidence to believe in the defendant’s guilt.

Until recently, defendants who were successful in defending a malicious claim, the character of which was civil, didn’t have any redress. The rationale reiterated by the bench while passing the judgements wont to be that the successful defence of a claim merely shouldn’t give someone a explanation for action for claiming damages for that suit being malicious in nature and filed with none reasonable belief, just to create the defendant undergo ordeals. someone usually has remedies if the suit filed was criminal in nature intrinsically a suit had potential to cause calculable and graver damages to someone’s goodwill and lower his image within the eyes of such members of the society who considered such individual someone of excellent virtue. this is often not something new, rather it’s been done on numerous occasions when the ambit of the tort was widened, one such instance could be a suit filed under the businesses Act 1862 which shall be further reviewed for a far better understanding of how the tort evolved in England.

Jeremy Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] involved a claimant who believed he had been maliciously prosecuted for possession of indecent images. The officer in question was found to have acted maliciously because he had admitted to a colleague that he wanted to give additional weight to another charge against the claimant. He had also concealed from the CPS information relating to the computer images obtained as evidence, which were found in a temporary file on the complainant’s computer, suggesting that the images were unsolicited ‘pop-ups’. There was also considerable delay and obfuscation with regards to returning property to the claimant, causing him considerable inconvenience with his work.  Justice Mackay further remarked that malice “can be inferred from the absence of reasonable and probable cause if the evidence warrants it”. Combined, these circumstances built a picture of an officer who was pursuing the claimant with an improper motive.

In, The Quartz Hill Consolidated and Gold MiningCompany, the facts were that the defendant, a shareholder within the plaintiff company and approached a broker to sell the shares owned by him that the deed was duly signed by him and handed over to the said brokers. The shares couldn’t be sold for a few reasons and therefore the defendant was informed of the identical, however, the papers of transfer weren’t returned to him. supported this fact he filed a suit after awaiting around 10 days for ending the corporate and cited reasons of incompetence. The defendant was an owner of 100 shares of the firm each of whose value was 1 pound, but the valuation at the time of the sale of the shares fell to approximately 1/3 of it. The defendant claimed within the London Gazette that the corporate was offering properties in Colorado, us of America for rather more than their actual valuation so as to profit from it and gain a promotion within the market. it had been also alleged that their prospectus falsely claimed that the mining ventures they were putting up available was too valuable and would be a decent investment for somebody. 

Later, the person was informed that the shares had been sold and hence he ceased to be a shareholder in this company to which he responded by sending a notice to the court requesting the dismissal of the suit filed by him which was eventually dismissed by the courts at no extra cost. This had an adverse effect on the business of the corporate and it hit an additional low of 30% because the article published by the defendant brought disrepute to the firm and also, it went on to lose the trust of the investors as a result of such articles defaming the corporate. Hence, they brought a suit against the defendants for wrongfully and maliciously filing a claim under the businesses act which resulted in loss of business. 

This being a suit of civil nature the remedies were limited, and therefore the court held initially that no damages might be awarded and negated the claim keeping these parameters in mind firstly, there was no evidence which could show special damages secondly, there was no evidence of malice on the a part of the prosecutor and thirdly, no action of this sort could possibly lie under any such circumstances. However, a suit would probably lie under a claim alleging a claim which was brought forward wrongfully but the above-mentioned parameters weren’t one in all those. it had been proved unquestionably that there was some mismanagement within the affairs of the corporate and these circumstances are grounds which are enough on things during which the defendant was as he valid brought forward this claim and not under any ill will.

It might be argued that mistake of fact isn’t an excuse under such a claim, but it may also be argued that there was an absence of an intention to injure the plaintiff company which for a suit of such nature to succeed could be a prime requisite. Under this when a suit is dismissed a judge might award a corporation indemnification as per the act. This claim resembled the want of adjudication under The Bankruptcy Act 1869 and because it was an identical claim to at least one under the bankruptcy act, it’d be maintainable. someone who wrongfully sets either criminal or civil law in motion viciously shall be deemed as liable.

The court said it had been vexatious for somebody to bring a suit against someone simply because the corporate had failed within the objective that it had been originally formed. The bench citing various other reasons dismissed the suit as not ok to be granted any damages for maliciously filing a suit for ending the corporate. Although the court held the defendant responsible for bringing a suit on unreasonable grounds which injured the credit of the corporate the bench in unanimity rejected a claim to award special damages to the firm as they might not after thorough inspection not conclude that liability to pay any extra cost might be a ground for legal damage.

Position in India

There are provisions in India for handling malicious proceedings of only criminal suits and a claimant usually has no remedies if such proceedings were instituted under any civil law apart from any Municipality Act. As has been seen in England cases of such a nature are given a greater degree of importance, the backlog of cases and other drawbacks like ways those aren’t only illegitimate but also draw a calculable degree of mockery on the system itself. Such cases drag for years and sometimes decades and therefore the ordeal of the claimant seems to become graver as time passes and he/she is left without a remedy but, must bear the expenses in maintenance of suit. 

The English system has been flexible enough as per the changing times but the conservative approach of Indian lawmakers hasn’t really found out for the general public good as there are still no remedies for such civil claims which defame the person and one can only claim for damages when he/she can show such damages which within the eyes of the court would be called as special damage which should be causa causans of the complained act. The rationale of prosecution could be a bit different than that in England, it’s deemed to be a prosecution when it’s reached a stage where calculable damage has been caused to the party defending that suit. For an in depth insight into the concept, we reviewed a judgement by the Calcutta supreme court which later went on to be cited while deciding many other cases. 

In Mohamed Amin V. Jogendra Kumar Banerjee  et al. agreement was entered upon by the appellant and therefore the first respondent purchasable of some commodities to an organisation which was to be formed by the primary respondent. within the process, the primary respondent incorporated a second respondent for effecting the acquisition and half the agreed goods were transferred by the appellant. Later it absolutely was discovered that the respondent had breached the terms of the agreement which was entered upon, as a results of which the appellant refused to honour it and didn’t transfer the remaining goods. As a results of which the second respondent acting in his personal capacity and on behalf of the opposite respondent filed a suit under section 405420, and 422 of the Indian legal code and demanded that he be answerable to such charges. The magistrate held an inquiry in an open court attended by the appellant and dismissed the claim stating there’s no cheating committed during this case and breach which exists is of purely civil nature. 

The appellant brought forward a suit for malicious institution of criminal proceedings against him, to which the judge affirmed but observed the bench must follow an earlier judgement by The supreme court of Judicature of Calcutta in Golap Jann V. Bholanath khettry  where it absolutely was observed that it can’t be deemed as prosecution if there’s no issue of any processes or where the complaint was dismissed by the magistrate upon inspection of the complaint, citing the above precedent the claim of the appellant was dismissed which the bench observed to be rightly decided.

In the Gaya Prasad v Bhagat Singh the privy council pointed out that the conduct of the complainant before and after the complaint has to be seen to decide whether he was the real prosecutor or not. If the complainant knowing that the charge is false tries to mislead the police by procuring false evidence for the conviction of the accused, he would be considered to be the prosecutor.

Observation on India dealing with cases of malicious suits

As it has been observed in England, how voids were filled within the landmark case of Willers V. Joyce, similar steps will be taken in India also. The judges have the independence of evolving new laws or filling voids in between the prevailing laws which could turn obsolete as time passes. Law could be a living entity and like all other living entities, it cannot remain the identical and must undergo a state of transition when the society needs it to. In India suits nature of which are malicious are mostly criminal and an absence of remedies for a suit filed maliciously under civil laws is of least concern up here but the laws governing the suits of criminal proceedings are insufficient. One such example is poorly drafted women laws. many ladies till date have capriciously filed suits to get benefits but the victim of such suits has no remedy. 

The Indian system has over the time did not address actual authentic cases and this may only be changed if the judges while deciding a case leave their conservative approach behind and evolve laws of which they need got absolute discretion. The courts must stop revisiting the incongruous judgements and switch towards framing new laws as per the changing time demands. One such instance will be discarding the doctrine which defines what will be called as a prosecution because it always differs from case to case, as an example during a suit inquiry might inflict sufficient amount of insult onto someone and successfully bring down their image whereas, in another case a complaint itself may need a possible to bring harm to someone’s reputation within the society of which such individual is an inhabitant. Not only should remedies be a priority for the courts’ measures like taken by China must be taken wherein someone filing a suit of which he has knowledge to be false is heavily fined and such individual is additionally then barred from appealing to the court for a considerable amount of your time. 

Indian lawmakers should plan on putting in place a Criminal Cases Review Commission as has been founded by the uk for review of criminal cases to get whether there has been miscarriage of justice. The commission works exclusively for ascertaining if there has been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario where there’s sufficient proof endorsing a claim where justice has not been delivered within the way it should be those cases, are then referred for appeal together with their reports. 

Though there are observations made by the apex court on several occasions while dealing cases of malicious prosecution where justice has not been delivered yet, the lawmakers have failed over and another time to capitalise thereon fact and has miserably did not come up with a legislation or for the instance even amendments which might serve for the cause within the short run and at the identical time is employed to border relevant laws by conducting further research on what’s best suited to the system of India. it’s often blamed on the courts when such fiascos occur but, if one analysis carefully it’s the authority charged with winding up such investigation, neglect on whose part has amounted to perversity and on the contrary have paved the way for forces which are gaining an favourable position for more such fiascos. 

There has been a flagrant violation of the thought of natural justice as of these attempts to line the law in motion wrongfully to satisfy their plebeian selves and are going unpunished because the redresses available to the victims aren’t only scarce but also outrightly inefficient. The perpetual instances are alarming enough and also the need is now being felt quite ever before for competent legislation, which might pander to such acts.


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 supported wrongful motive. The malicious suits which are on the increase, in absence of a concrete legislative framework which could help arrest, these trends where the legal procedure is being abused so as to realize wrongful benefit by subjecting parties to suits which are filed with a capricious intention. As there aren’t any legal provisions which exclusively cope 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 involves addressing those suits.


The Companies Act, 1862.

Code of Criminal Procedure

Bangia, RK (2017). Law of torts, 24th edition. 

The Bankruptcy Act 1869

Ratanlal & Dhirajlal (2016). Chapter XIII. Law of torts, 26th edition.

Municipal Act of 1872

Indian Penal Code

Law Commission of India (2017) report 277: wrongful prosecution (miscarriage of justice)- remedies. 

Kisner, Pearl (1976). Malicious Prosecution: an effective attack on spurious medical malpractice claims. 

Harper, Fowler v. (1937). Malicious Prosecution, False Imprisonment and Defamation. 

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