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TABLE OF CONTENTS

TABLE OF CASES...................................................................................................................2

RESEARCH METHODOLOGY...............................................................................................3

ACKNOWLEDGEMENT.........................................................................................................4

MALICIOUS PROSECUTION: DEFINED..............................................................................5

ESSENTIALS OF MALICIOUS PROSECUTION..............................................................5

ESSENTIALS OF PROSECUTION......................................................................................6

PROCEEDINGS TERMINATED IN FAVOUR OF PLAINTIFF.......................................8

MALICE, MALICE IN FACT AND MALICE IN LAW.....................................................9

DAMAGES FOR MALICIOUS PROSECUTION...............................................................9

REASONABLE AND PROBABLE CAUSE..........................................................................11

WHAT IS ‘REASONABLE AND PROBABLE CAUSE’?................................................12

CASE ANALYSIS...................................................................................................................14

CONCRETE FACTS...........................................................................................................15

MATERIAL FACTS............................................................................................................17

ISSUES BEFORE THE COURT.........................................................................................18

ARGUMENTS ADVANCED.............................................................................................18

DECISION OF THE COURT..............................................................................................19

RATIO DECIDENDI...........................................................................................................19

CRITICAL ANALYSIS OF THE JUDGMENT.....................................................................20

BIBLIOGRAPHY....................................................................................................................21

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TABLE OF CASES

Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46...................................................................3

Basebe v. Matthews (1867) LR 2 CP 684..................................................................................9

Bolandanda Premayya v. Ayaradara , AIR 1966 Kant 13........................................................3

Copenbarger v. International Insurance Company (1996) 46 Cal.App.4th 961, 964...............9

Dandy v. Beardsley, (1880) 43 LT 603......................................................................................5

Hicks v. Faulkner, (1878)8 QBD 167 (171)..............................................................................8

Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 741- 743..................................10

Jogendra v. Lingraj, AIR 1970 Ori 91......................................................................................5

Majid v. Harbansh Choube, AIR 1974 All 129.........................................................................6

Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108..................................................3

Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047...........................................................9

Plumley v. Mockett, 164 Cal.App.4th at page 1059.................................................................10

Ram Lal v. Mahender Singh, AIR 2008 Raj 8...........................................................................6

Sangster v. Paetkau, supra, 68 Cal.App.4th at pages 164-165................................................10

Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3rd at page 871.................................................9

Sierra Club Foundation v. Graham, (1999) 72 Cal.App.4th 1135, 1153.................................9

Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.............10

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817...........................................9

Zamos v. Stroud, (2004) 32 Cal.4th 958, 971..........................................................................10

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RESEARCH METHODOLOGY

The Research Methodology of the project is Doctrinal which includes arranging, ordering
and analyzing of the legal structure, legal framework and case laws for the formulation of a
new doctrine, through extensive surveying of the legal literature but without any field work.

The Sources of data are secondary and include the data collected in different research
papers, books and reports of the Law Commission of India.

STATEMENT OF PROBLEM

 To outline the tort of Malicious Prosecution.

 To analyse the necessity of the lack of a reasonable and probable cause for Malicious
Prosecution.
 To explain through case analysis the intricacy of the essentials of a reasonable cause
and malice.

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ACKNOWLEDGEMENT

This project had not one person behind it, there were many people in the background whose
motivation and help were instrumental in its completion. I would like to start by expressing
my gratitude towards the director of our university for providing a brilliant study atmosphere
and infrastructure, which are, inarguably, the most important contributions to any pursuit. I
am highly indebted to my institution National Law University, Bhopal for their guidance and
constant supervision regarding the project work. I would like to extend special gratitude to
Prof.(Dr.) Rajiv Khare for giving me such attention and time and very valuable guidance.

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MALICIOUS PROSECUTION: DEFINED

Malicious prosecution is an intentional tort which flows from an unjustified prosecution. It is

a tort which compensates a victim for malicious, unfounded and unsuccessful institution of
criminal or disciplinary proceedings.

Malicious prosecution is an institution with malice against another of unsuccessful criminal

or bankruptcy without a reasonable cause. It has two competing principles, namely the
freedom that every person should have in bringing criminals to justice and the need for
restraining false accusations against innocent persons.

In 2009, Canada's Supreme Court wrote:

"Malicious prosecution is an intentional tort designed to provide redress for losses flowing

from an unjustified prosecution.”

In India, the prosecution must prove the guilt of the accused, i.e., it must establish all the
ingredients of the offence with which he is charged. As in England so also in India, the
general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced
by the prosecution or by the accused, there is a reasonable doubt whether the accused
committed the offence, he is entitled to the benefit of doubt.

ESSENTIALS OF MALICIOUS PROSECUTION

Following are the essential conditions that Plaintiff has to prove in an action
for malicious prosecution:

(i) he was prosecuted by the defendant,

(ii) the proceedings complained of terminated in favour of the Plaintiff if from their nature
they were capable of so terminating,

(iii) the prosecution was instituted against him without any reasonable or probable cause,

(iv) the prosecution was instituted with malicious intention, and

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(v) he has suffered damage to his reputation.

ESSENTIALS OF PROSECUTION

There are two elements for the prosecution—

1. the Plaintiff has been prosecuted and

2. the defendant has prosecuted the Plaintiff. Legal proceedings have thus started with
the judicial authority.

Proceedings may envelope both types of prosecution i.e., criminal as well as civil. Here we
can understand this aspect that at what stage the proceedings start with the illustration of
case of Bolandanda Premayya v. Ayaradara1.—

Defendant made a complaint with the police that Plaintiff has committed a theft in his house.
Police called both i.e., Plaintiff as well as defendant in the police station and recorded their
statements. The sub-inspector then made a search in Plaintiff’s house. But the police found
the complaint to be false. The Plaintiff filed a suit for damages against the defendant in the
civil court for malicious prosecution. The court rejected this plea on this ground that mere
filing of complaint with the police doesn’t amount to prosecution. It starts only, when some
judicial authority is set in motion as a consequence of such complaint. The suit failed.

So, at what stage, the prosecution commences before the judicial authority, there are two
views on this point:

(a) the prosecution starts as soon as the complaint is made or charge is laid before the
judicial authority. In Balbhaddar Singh v. Badri Shah2 it was observed that the charge
should have been acted upon and process issued by the judicial authority.

(b) the prosecution commences not at the stage when the complaint is made or charge is laid
before the judicial authority, but at the stage when some process has been issued by such
authority for the Plaintiff to appear.

1
Bolandanda Premayya v. Ayaradara , AIR 1966 Kant 13.
2
Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46.

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In the case of Mohd. Amin v. Jogender Kumar Banerjee3 the Plaintiff agreed to sell certain
property to defendant who was going to form a company, but later on he backtracked to do
so. On a complaint from defendant, the Magistrate after examining it on oath, held an
inquiry in the open court under section 202 of the Criminal Procedure Code, 1898. The
Plaintiff was accordingly summoned and he appeared with his lawyer. Thereafter, the
Magistrate dismissed the complaint as a result of preliminary enquiry. The Plaintiff brought
a suit against the defendant for damages for malicious prosecution. The Privy Council held
—

“the action for damages for malicious prosecution is part of the common law of England,
administered by the High Court at Calcutta. The foundation of the action lies in abuse of
process of the court by wrongfully setting the law in motion and it is designed to discourage
the perversion of the machinery of justice for an improper purpose.”

After stating the basis for the tort of malicious prosecution, Sir John Beaumont, J; of the
Privy Council laid down the principle of determining the stage at
which prosecution commences. He said—

“To find an action for damages for malicious prosecution based upon criminal proceeding,

the test is not whether the criminal proceedings may be correctly described as prosecution,
the test is whether such proceedings have reached a stage at which damage to the Plaintiff
results. In this case the Magistrate took cognizance of the complaint, examined the
complainant on the oath, held an enquiry in open court under section 202 which the Plaintiff
attended, and, at which the learned judge had found he incurred costs in defending himself.
The plaint alleged the institution of criminal proceedings of a character necessarily involving
damage to reputation and gave particulars of special damage alleged to have been suffered
by the Plaintiff. Their Lordships think that action was well founded, and on the findings at
the trial the Plaintiff is entitled to judgment.”

In criminal proceedings, malicious prosecution commences, when such proceedings have

reached a stage at which damage to Plaintiff results.

3
Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108.

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PROSECUTION BY THE DEFENDANT

The Plaintiff has to prove that the prosecution against him was instituted by the defendant.
Prosecutor is a person who is actively instrumental in putting the law in force, as stated in
Dandy v. Beardsley4.

If a person does not file a complaint himself but through the instrumentality of an agent or
counsel, he will be termed as a prosecutor.

A private person at whose instance and report the prosecution is launched by the police, is a
prosecutor.

A person is not a prosecutor when the defendant has just given an account of honest
suspicion about the Plaintiff to the police and the police without any further enquiry started a
case against the Plaintiff.

PROCEEDINGS TERMINATED IN FAVOUR OF PLAINTIFF

As discussed above, the Plaintiff has to prove that he was prosecuted by the defendant and if
this prosecution results in conviction of the Plaintiff then no suit would lie against the
defendant. A cause of action arises if the prosecution fails to convict the Plaintiff.

PROSECUTION WAS INSTITUTED WITH MALICIOUS INTENTION

The Plaintiff has again to prove that the defendant acted maliciously in prosecuting him.
Malice means indirect and improper motive. In the case Jogendra v. Lingraj5, the Court
described ‘malice’ as—

“As already stated, bad blood existed between defendant and members of the Brahmin
Nijog. Therefore, when defendant found that some members of the Brahmin Nijog were
responsible for committing certain acts in relation to his properties, it is not unlikely that he
availed of the opportunity of implicating others even though they were not present and did
not participate in any of the acts....... is in the circumstances indicative of improper and
wrongful motive and the necessary inference is that it was malicious.”

4
Dandy v. Beardsley, (1880) 43 LT 603.
5
Jogendra v. Lingraj, AIR 1970 Ori 91.

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In Abdul Majid v. Harbansh Choube6, the Police Station Officer, in a conspiracy hatched
by two other defendants concocted a story that the Plaintiff was involved in a dacoity and
the ‘hansauli’ used in the dacoity was recovered from the house of Plaintiff. The court
acquitted the Plaintiff on giving him the benefit of doubt. The Plaintiff then brought the
action against the defendants. The Court observed that the defendants adopted improper and
wrongful motive to prosecute the Plaintiff on the basis of concocted story. The Court held
defendants liable.

MALICE, MALICE IN FACT AND MALICE IN LAW

The word “Malice” in common acceptation means and implies “Spite” or “ill-will”. The
legal meaning of “Malice” is “ill-will or spite towards a party and any indirect or improper
motive in taking an action”. This is sometimes described as “Malice in fact”. Legal “Malice”
or “Malice in law” means “something done without lawful excuse”. In other words, “it is an
act done wrongfully and wilfully without reasonable or probable cause, and not necessarily
an act done from ill-feeling and spite. It is deliberate act in disregard of the rights of others”.

DAMAGES FOR MALICIOUS PROSECUTION

The Plaintiff has to prove that he has suffered damage as a result of his prosecution. There
are three types of damages—

(i) damage to man’s reputation i.e., if person has been accused of scandalous matter;

(ii) damage to the person i.e., when the person is put in danger of losing his life, liberty or
limb;

(iii) the damage to man’s property i.e., where he is forced to spend money to defend himself
of the crime of which he is prosecuted.

In Ram Lal v. Mahender Singh7 the Plaintiff and his father had been implicated in an
offence of murder and they were acquitted by the court. Thereafter, the Plaintiff filed suit
for malicious prosecution. It was held that merely because the Plaintiffs came to be acquitted
or discharged by the criminal court as the prosecution failed to prove the case beyond doubt
as is required in criminal law, it does not mean that such acquittal or discharge could
necessarily boomerang upon the defendant as a case for malicious prosecution. The burden

6
Majid v. Harbansh Choube, AIR 1974 All 129.
7
Ram Lal v. Mahender Singh, AIR 2008 Raj 8.

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of proof squarely lied upon the Plaintiffs to prove that the prosecution was malicious, mala
fide and done with an intention to harass and defame the Plaintiffs. No such case was made
out by the Plaintiffs, much less proved. Therefore, the Plaintiffs were not entitled to claim
any damages.

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REASONABLE AND PROBABLE CAUSE

‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a
full conviction founded upon reasonable grounds, of the existence of a circumstances, which
assuming them to be true, would reasonably lead any ordinary prudent man and cautious
man placed in the position of the accuser to the conclusion that the person charged was
probably guilty of the crime imputed. As laid down in Hicks v. Faulkner8 there must be

i. an honest belief of the accuser in the guilt of the accused,

ii. such belief must be based on an honest conviction of the existence of circumstances
which led the accuser,

iii. such secondly mentioned belief as to the existence of the circumstances must be based
upon reasonable grounds that is such grounds , as would lead any fairly cautious man in the
defendant’s situation to believe so,

iv. The circumstances so believed and relied on by the accuser must be such as amount to a
reasonable ground for belief in the guilt of the accused. It is the responsibility of the Plaintiff
to show that there was no reasonable and probable cause for the prosecution of the case. If
the defendant can be shown to have initiated the prosecution without himself holding an
honest belief in the truth of the charge, it cannot be said that he acted upon reasonable and
probable cause. The fact that the Plaintiff has been acquitted is not prima facie evidence that
the charge was unreasonable and false. Lack of reasonable and probable cause is to be
understood objectively, it does not connote the subjective attitude of the accuser. The fact
that the accuser himself thinks that it is reasonable to prosecute does not per se lead to the
conclusion that he had a reasonable and probable cause.

8
Hicks v. Faulkner, (1878)8 QBD 167 (171).

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WHAT IS ‘REASONABLE AND PROBABLE CAUSE’?

Reasonable and probable cause was defined in Basebe v. Matthews9as:

An honest belief in the guilt of the accused based upon… reasonable grounds of the
existence of a state of circumstances which, assuming them to be true, would reasonably
lead any ordinary prudent and cautious man, placed in the position of the accuser, to the
conclusion that the person charged was probably guilty of the crime imputed.

Therefore, if the police do not honestly believe that the individual charged is guilty of the
offence, or if a reasonable person would not honestly believe based on the facts that the
individual was probably guilty of the offence in question, there is no reasonable and
probable cause for bringing the prosecution.

The former defendant and now Plaintiff in a malicious prosecution action must demonstrate
that the prior action was brought without probable cause. The probable cause element
requires a determination of whether, on the basis of the facts known to the filing attorney at
the time of the filing of the underlying action, the filing of that underlying action was legally
tenable10. Probable cause is a low threshold designed to protect a litigant’s right to assert
arguable legal claims even if the claims are extremely unlikely to succeed 11. Tenability must
be measured in light of both the existing authorities and the leeway a litigant must be given
to argue for an evolution of legal precedents The existence or absence of probable cause is a
question of law to be determined by the Court, before the case goes to the jury. The presence
or lack of probable cause is determined as an objective standard; the test is whether any
reasonable attorney would have thought the claim tenable.12 If the underlying complaint’s
causes of action were objectively reasonable, the malicious prosecution claim must fail 13.
Only those actions that any reasonable attorney would agree [are] totally and completely
without merit may form the basis for a malicious prosecution suit 14. This “less stringent”
standard is based upon what has become known as the Flaherty for determining frivolous
appeals, and “more appropriately reflects the important public policy of avoiding the chilling
of novel or debatable legal claims.” The standard is thus designed to accommodate the

9
Basebe v. Matthews (1867) LR 2 CP 684.
10
Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3rd at page 871.
11
Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.
12
Copenbarger v. International Insurance Company (1996) 46 Cal.App.4th 961, 964.
13
Sierra Club Foundation v. Graham, (1999) 72 Cal.App.4th 1135, 1153
14
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.

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requirement that the court “properly take into account the evolutionary potential of legal
principles. Probable cause is established by showing that the “claim ... is legally sufficient
and can be substantiated by competent evidence...” 15 “And just as an action that ultimately
proves non-meritorious may have been brought with probable cause, successfully defending
a lawsuit does not establish that the suit was brought without probable cause.”16

In analyzing the issue of probable cause in a malicious prosecution context, the trial court
must consider both the factual circumstances established by the evidence and the legal
theory upon which relief is sought. A litigant will lack probable cause for his action either if
he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks
recovery upon a legal theory, which is untenable under the facts known to him. “In
determining whether the prior action was legally tenable, i.e., whether the action was
supported by probable cause, the court is to construe the allegations of the underlying
complaint liberally, in a light most favorable to the malicious prosecution defendant.” 17
Probable cause to commence an action may be present even where the Plaintiff cannot
prevail at trial. “Counsel and their clients have a right to present issues that are arguably
correct, even if it is extremely unlikely that they will win ... every case litigated to a
conclusion has a losing party, but that does not mean the losing position was not arguably
meritorious when it was pleaded.18

A litigant will lack probable cause for his action either if he relies upon facts which he has
no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which
is untenable under the facts known to him.”19 While these occur at the time of the filing of
the underlying actions, the California Supreme Court held that an attorney may become
liable during the course of the litigation, even if he or she had probable cause to file an
action, but the attorney later learned of facts that made its continued prosecution not
objectively tenable.20

15
Ibid. at pg 821.
16
Plumley v. Mockett, 164 Cal.App.4th at page 1059.
17
Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.
18
Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 741- 743.
19
Sangster v. Paetkau, supra, 68 Cal.App.4th at pages 164-165.
20
Zamos v. Stroud, (2004) 32 Cal.4th 958, 971.

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CASE ANALYSIS

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BIBLIOGRAPHY

 P. R., Jr., Malicious Prosecution: Probable Cause: Defendant's Belief, California Law
Review, Vol. 12, No. 4 (May, 1924), pp. 310-314.
 Bangia, R.K., The Law of Torts, Allahabad Law Agency,2010(22nd Edition).
 www.manupatra.com
 www.jstor.com
 www.legalserviceindia.com

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