Malicious prosecution and abuse of legal process - Law of Torts

On this page

1. Meaning
2. Essentials
3. Malicious civil proceedings
4. Abuse of legal process
5. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two public interests pull against each other. The law wants citizens to report crime and go to court without fear of being sued if they lose. It also wants to protect people from being dragged through criminal proceedings out of spite. That is why the plaintiff in malicious prosecution must prove so much: five elements, two of which (absence of reasonable cause and malice) are hard to establish.

1. Meaning

Malicious prosecution is the institution of criminal (and in some cases civil) proceedings against another maliciously and without reasonable and probable cause, which terminate in his favour and cause him damage. It is an action on the case, not trespass, so damage must be proved. Limitation under Article 74 of the Limitation Act, 1963 is one year from the date of acquittal or other termination of the prosecution.

2. Essentials

The Supreme Court restated the elements in West Bengal State Electricity Board v. Dilip Kumar Ray, 2006 INSC 907, (2007) 14 SCC 568. A Superintending Engineer who had been suspended and proceeded against by the Board sued it for damages for malicious prosecution and harassment. The Court explained malice and the absence of reasonable and probable cause, held that the plaintiff had not proved them, and set aside the decree for damages. The plaintiff must prove:

(1) Prosecution by the defendant. The defendant must have set the law in motion against the plaintiff before a judicial authority. Merely giving information to the police, who then act on their own judgment, is generally not enough; actively instigating the prosecution, or giving false information knowing it will be acted on, is. In Mohamed Amin v. Jogendra Kumar Bannerjee (1947), the Privy Council held that the test is not whether the proceedings reached the stage of a summons, but whether they reached a stage at which damage to the plaintiff resulted. A complaint before a magistrate, even if dismissed after preliminary inquiry, can therefore be a prosecution.
(2) Termination in the plaintiff's favour. The plaintiff must have been acquitted, discharged, or the proceedings withdrawn or quashed. A person still being prosecuted, or one who was convicted (even if the conviction was later set aside on a technicality, in some views), cannot sue. This prevents a civil court from retrying a criminal case.
(3) Absence of reasonable and probable cause. Hawkins J. in Hicks v. Faulkner (1881) defined reasonable and probable cause as an honest belief in the guilt of the accused, based on a full conviction, founded on reasonable grounds, of the existence of circumstances which would lead an ordinarily prudent and cautious man to the conclusion that the person charged was probably guilty. The burden is on the plaintiff (Abrath v. North Eastern Railway Co., 1886). Acquittal alone does not prove absence of reasonable cause.
(4) Malice. Malice here means an improper motive, some purpose other than bringing an offender to justice: spite, revenge, or using the prosecution to extort money or settle a civil dispute. Malice may be inferred from want of reasonable cause, but the two are separate elements and both must be shown.
(5) Damage. The plaintiff must show damage to reputation (where the charge is scandalous), to person (risk of imprisonment) or to property (costs of defence). These are the three heads identified in Savile v. Roberts (1698).

Trap. Do not say an acquittal proves the prosecution was malicious. Acquittal satisfies only the second element. A prosecution brought on honest belief and reasonable grounds is not actionable even if the accused is acquitted. Dilip Kumar Ray is useful precisely because the plaintiff had won his earlier challenge and still failed in the suit for damages.

3. Malicious civil proceedings

As a rule, no action lies for bringing a civil suit maliciously and without reasonable cause. The losing party pays costs, and that is treated as sufficient compensation. English law allows an action only where the proceedings by their nature injure reputation, credit or property even before they are decided, such as a malicious bankruptcy petition or a petition to wind up a company (Quartz Hill Consolidated Gold Mining Co. v. Eyre, 1883), or wrongful execution against property.

Indian courts have been somewhat more willing to entertain such suits where the plaintiff proves the same essentials and actual damage. The Code of Civil Procedure, 1908 also gives statutory remedies within the original case: compensatory costs for false or vexatious claims or defences under s.35A, and compensation for arrest, attachment or injunction obtained on insufficient grounds under s.95.

4. Abuse of legal process

Abuse of process is different from malicious prosecution. The process may be regularly issued and may even have been based on reasonable cause; the wrong is using it for a collateral purpose it was not designed to serve. In Grainger v. Hill (1838), the defendants had the plaintiff arrested on a civil debt not yet due, in order to force him to hand over the register of his ship, without which he could not go to sea. They were liable. The plaintiff need not prove that the proceedings ended in his favour or that there was no reasonable cause; he must prove the improper purpose and an act done to achieve it.

The wrong. Malicious prosecution: instituting proceedings without cause and with malice. Abuse of process: using proceedings for an ulterior end.
Termination in the plaintiff's favour. Essential for malicious prosecution; not needed for abuse of process.
Want of reasonable cause. Essential for malicious prosecution; not needed for abuse of process.

5. Problem

A and B quarrel over a boundary. A files a complaint before the magistrate accusing B of theft of his cattle. The magistrate issues process; B is tried and acquitted, the court remarking that the cattle were found in A's own shed. B sues A.

Issue. Whether A is liable for malicious prosecution.

Law. B must prove prosecution by A, termination in B's favour, absence of reasonable and probable cause, malice, and damage (Dilip Kumar Ray; Hicks v. Faulkner).

Application. A filed the complaint himself, so he set the law in motion. B was acquitted. The cattle were in A's own shed, so no prudent person in A's position could have believed B guilty: there was no reasonable cause. The existing boundary quarrel supplies the improper motive, and malice may also be inferred from the want of cause. B suffered damage to reputation (theft is a scandalous charge), the risk of imprisonment, and the costs of defence.

Conclusion. A is liable to B in damages, provided B sues within one year of the acquittal. A may also face prosecution for a false charge under s.248 of the Bharatiya Nyaya Sanhita, 2023 (old s.211 IPC).

How this is examined

A 10-mark essay: “What are the essentials of malicious prosecution? Discuss with cases.” List the five elements with a case for each, then distinguish malicious civil proceedings and abuse of process. A 6-mark note: “Abuse of legal process” or “Reasonable and probable cause”. A problem in the pattern above is common.