1.

– TORT means a civil wrong .It is a breach of duty.

According to Salmond definition of TORT;
“A Tort is a civil wrong for which the remedy is a common law action for un liquidated damages and
which is not exclusively the breach of a contractor the breach of a trust or other merely equitable
obligation”
CHARACTERISTICS OF TORT
A tort is a civil wrong not a breach of contract or breach of crime one.
Tort is an infringement of a right in rem it is not a right in personam.
A right in rem is available against the whole world.
Rights in tort should be only based on the law fixed and it should not be on the basis of parties in
tort.
Tort always provides an remedy in the form of compensation or damages also it will given in the
form of injunction, restitution of land, ejectment of trespass etc..,

Negligence is the most common reason for tort. When a person unintentionally harms someone
then the injured party can sue the defendant for his act. A strict liability tort becomes an issue if a
private party is injured through a faulty product.
A tort is unlawful because –
Firstly, a tort causes bodily harm to an individual and impairs a person’s life.
Secondly, a tort is against the civil rights of an individual in society.
Lastly, torts are covered by law and the offense is subject to prosecution.
A tort is best defined as a private infringement on someone’s civil rights. In legal terms a tort occurs
when negligence directly causes damage to a person or their property.

What is a crime?
A crime is a wrong doing that affects society. It has been identified by the state legal system and is
prosecuted according to the laws of the state and the procedure followed in a criminal court of law.
The injured party is classified as the society and the laws broken have been set up by the state or
federal government to protect the members of society.
The proceedings that are used to bring about justice take place in a criminal court of law. The
punishment will fit the crime under criminal law and the defendant will serve the sentence given to
him through the criminal court of law.
Crimes go against laws that are already set for the protection of society and to keep peace ensuring
everyone can have the right to live in a crime free society, in an ideal world!

Difference between Tort and Crime

A tort and a crime are technical terms used in the legal world. The word crime is more commonly
understood as crimes are newsworthy events and reach headlines. They affect the society we live in.
A tort differs from a crime because although it is a wrong doing it is classified as a civil offense. A
tort interferes with another person or their property.
A crime on the other hand, is a wrong doing that affects civilized society and falls under the laws of
the state or federal government.
Torts and crimes are tried in different courts and although both accused parties are known as
defendants the charges of a tort are laid by a plaintiff while crimes are brought to court by the
federal government.
A tort may well be part of a crime as some personal injury may occur to innocent parties during the
crime. Crimes are tried in a criminal court while torts are brought to justice through a civil court.
Crimes are identified by the legal system as acts that go against society. Torts are based on injury to
individuals due to negligence or personal damage.
Understanding the basic principles of each action helps to understand the differences between
them. Torts appear to be smaller events compared with the larger scale of organized crime.
A tort is unlawful because –
A tort causes bodily harm or psychological injuryto an individual and impairs a person’s lifestyle.
A tort goes against the civil rights of an individual in society.
Torts are covered by law and the offence can be prosecuted, but the outcome will differ based on
the legal guidelines serving the law and civil rights.

Torts
1. In case of tort, damages are always
unliquidated, or unascertained and invariably they are not, and in fact, cannot be actual.
2 A tort is a violation of a right in rem, i.e. of a right vested in public at large, either personally or as a
member of community and available against the world at large.
3. In tort, the duty is imposed by the law, and is owed to the community at large.
4. Sometimes, in tort, motive is an essential factor to determine the liability, e.g. Malicious
prosecution.
5. Law relating to tort has not been codified. It is a judge-made law.
6. In tort, a person injured may be entitled for such damages which he has not actually suffered.
7. Exemplary or vindictive damages are awarded ‘ in tort.
8. The factors do not affect on action of tort.
Breach of Contract
1. In case of breach of contract injured party has right only for liquidated damages, i.e. pre-settled or
actual damages.
2. A breach of contract is an infringement of a right in personam, i.e. a right available only-against
some determinate person or body and in which the community at large has no concern.
3 The duty violated, in the case of a breach of contract, is a specific duty owed by either party to the
other alone. It does not owe to the community at large.
4. In breach of contract, the motive is not an essential factor. The defaulting party has to pay the
pre-settled and actual damages.
5. Law relating to contract has been codified.
6. In breach of contract, the party is entitled only for actual damages.
7. Exemplary or vindictive damages are not awarded in the breach of contract, except in an action
for breach of promise of marriage.
8. No compensation is paid in cases of contracts induced by fraud, misrepresentation, mistake,
coercion or undue influence.
DIFFERENCES
1. A Tort is a civil wrong in which remedy is action for damages.
Whereas breach of contract is a breaching or breaking of a promise which he has do in the
agreement of an contract.
2. Tort is a violation of legal right.
Breach of contract is an infringement of a legal right.
3. Damages in tort are always unliquidated.
Whereas in breach of contract the damages is liquidated.
4. In breach of contract the motive will be irrelevant and immaterial.
In tort motive may be taken into consideration.
5. In tort duty Is bound towards the persons
Where as in breach of contract the duty id bound towards a specific person or persons.
6. In breach of contract, nature of damages is compensatory
Examples:
(a) A has obtained a water drum from B on a contract with a condition to return it within two days. A
has not re-delivered water drum to B after two days.
A intends to retain it for himself. Thus he makes a breach of contract and also conversion. His act is a
breach of contract, because he promised expressly to return water drum.
it is also not merely a breach of contract, and therefore also a tort, because he would have been
equally liable for detaining and other man’s property, even if he had made no such contract all.
(b) A is the car owner. B has taken A’s car on hire. There is a contract between A and B. From B, C
has taken the car and damaged it.
There is no direct relation between A and C. it is true that apart from the contract between A and B,
C is liable to A.
B made a breach of contract. C has put himself in such a situation that ne cannot break the duty.
There was omission to take care on the part of C. It is a tort.
Let us see the differences between Tort arid Breach of Contract, which are as follows:—

2.

The word tort was used first time

In the case of Boulten vs hardly 1597.
Definition:- The tort is completely based on the common law of England which is codified and to give
also tort is a progressive law, so it is a very difficult certain definition of this word, but various
eminent jurists defined the term tort in the following manner.

According to section 2(m) of the Indian limitation Act 1963,

‘Tort is a civil wrong which is responsible by an action for unliquidated and which is other than a
mere breach of contract or breach of trust’.
It’s according to Salmond:
A tort is a civil wrong for which the remedy is an action for unliquidated( not pre-fixed) damages and
which is not exclusively the breach of contract or the breach of trust or other merely equitable
obligation.

It is according to Fraser:
The tort is an infringement(violation) of right in Rem of private individual giving a right of
compensation at the suit of the injured party.

ESSENTIALS OF TORTS
To constitute a tort-:
There must be a wrongful act or omission committed by a person.
The wrongful act or omission must result in legal remedy in the form of an action for damages.
The wrongful act must be of such a nature to given rise to a legal remedy in the form of an action for
damages.

WRONGFUL ACT OR OMISSION:

To determine liabilities in tort it must be proved that the act or omission done by the one person
was a wrongful act. The act or omission must be legally wrongful. Violation of moral, social, and
religious rights does not come under the category of torts.
LEGAL DAMAGES:
Another essential element is wrongful act or omission committed by one person must result in legal
damages to the other i.e. Such act or omission resulted in a violation of legal remedy to another
person. The following are the essential ingredients of the legal damages:
There must be an infringement (violation) of a legal right (absolute or qualified).
Such infringement of a legal right must have a presumption of damage in the eye of law.
Proof of actual damages suffered in case the right contravened is not an absolute but only a qualified
right.

The real signification of legal damage can be

Best illustrated by the following two maxims:-
INJURIA SINE DAMNUM
DAMNUM SINE INJURIA

LEGAL REMEDY:
To be successful in an action for torts the last essential is that the wrongful act or omission must
come under the category of wrongs for which the remedy is a civil action for damages.
A tort is a civil injury, but all civil injuries are torts. The wrongful act must come under the category
of wrongs for which the remedy is a civil action for damages. Though the specific remedy for a tort is
an action for damages. But there are other remedies also i.e. An injunction may be obtained in
addition to damages in certain cases of wrongs. To similarly, specific restitution of a chattel may be
claimed in an action for the detention of a chattel.
Its all About Define torts and give its essential elements.
In Bhim Singh v. State of J&K the petitioner, an MLA of the J&K assembly, was wrongfully detained
by the police while he was going to attend the assembly session. He was not produced before the
magistrate within the requisite period. As a consequence of this, the member was deprived of his
constitutional right to attend the Assembly session. Thus, it was held that the legal right of Bhim
Singh was violated here.
Since what is actionable is the violation of a legal right, it, therefore, follows that when there is no
violation of a legal right, no action can lie in a court of law even though the defendant’s act has
caused some loss or harm or damage to the plaintiff. This is expressed by the maxim Damnum sine
injuria. It means that any damage without the violation of a legal right is not actionable in a court of
law.
It can very well be established from above that, a tort is a civil wrong which is caused when one
individual infringes another’s legal rights. And the concept of mental element may or may not be
relevant in certain tort as in order to determine it, we would first have to know the nature of the tort
committed by the individual. It can be done intentionally like in the case of Battery, as well as
accidentally without the intention of committing such an act by performing certain acts carelessly or
by accident like in the case of negligence. The situation of Law of tort is not so well as many people
are still not aware of the rights that they possess which is due to the fact that there is a lack of
awareness among the people, the fact that the law of torts is still uncodified and is a direct
derivative of the common law of England makes it less likely to be adaptable in certain cases to the
Indian context, although now it has been adapted into the Indian context.

3.
inevitable accident
The Law of tort has evolved from its existence. The Law of tort revolves around damages which
means punishments in torts are usually in the form of liquidated damages. One can counterclaim
compensation based on certain principles. These counterclaims are known as defenses. There are
many defenses in the law of tort. Some of these are negligence, nuisance, inevitable accidents, etc.

Example: If [A] was driving a car and he was all in his senses and took all due care, but suddenly due
to mechanical part failure his car loses his balance and hits a passer-by. In this case, the driver would
not be liable as he took all precautions from his side. The accident was unavoidable.
Act of God can also be sometimes classed in inevitable accidents.
Example: A was driving a car with all the reasonable care from his part. Suddenly due to heavy rain
and storm the road collapsed and A’s car hit many pedestrians. Here also the driver would not be
liable. It was completely out of his hand.
Sir Frederick Pollock has defined an inevitable accident as, “not avoidable by any such precautions as
a reasonable man, doing such an act then there could be expected to take.”
For the defendant to use the defense of inevitable accident, it is necessary to show two things:
There was no intention on the part of the defendant.
And, the collision could not have been avoided with reasonable care.
The defendant can clearly deny any responsibility but is more difficult to satisfy. The most prominent
defense used by the defendant is that there was an unanticipated blackout just before the crash. In
that case, the defendant has to prove that there was a sudden medical illness.
There is an interesting case on the defense of the inevitable accident of LIMMASOL.
The defendant was driving a car on the road and suddenly he got a cardiac arrest. Due to this sudden
arrest, he hit a passer-by and on-looker. The matter went to the court and the defendant pleaded
the defense of inevitable accident. To support his side, he even presented the court with his medical
history of cardiac arrest. But the judge gave the rule against the defendant. The honorable judge
stated that the defendant could not prove that the arrest was sudden at the time of the accident
which was a necessary element for the plea of inevitable accident.
Secondly, the defendant was well known for his health condition of cardiac arrest. He should have
not taken the risk of driving. Therefore, the accident was not unforeseeable and could have been
avoided. By driving with his serious illness, therefore, he should be held liable for the accident.
In the case of Hidasi v. Hidasi, the defense of an inevitable accident was accepted by the court.
In this case, the plaintiff is the wife and the defendant is the husband. Both husband and wife were
traveling along a mountain road. The defendant was well aware of the slippery road so took all the
precautions. He was traveling below 100kmph. But somehow the car lost the balance. The
defendant pulled the emergency brakes which couldn’t stop the car and the car hit the near barrier,
injuring the plaintiff.
The plaintiff sued the husband stating that he was rashly driving and didn’t take the precautionary
measures. The defendant took the pleading of an inevitable accident. The court accepted the
defense stating that the car lost the control because of the mechanical failure which was totally out
of the scope of the defendant.
Case Analysis
A. Krishna Patra vs Odisha State Electricity Board
Facts of the case – A. Krishna Patra vs Odisha State Electricity Board 2 (1998) ACC 367, 1998 ACJ
155, AIR 997 ORI 109 :
1) Was the whole incident an inevitable accident?
2) Does the electricity board owe any duty of care toward the woman?
3) Should the electricity board be held liable for the death of the woman?
This case involves the concept of inevitable accidents and negligence. ” Negligence is the breach of
duty caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily, regulate the conduct of human affairs would do or doing something
which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing
ordinary care and skill.
The essential element of inevitable accident:
1) The accident should have been unforeseeable.
2) The event was out of scope and had no means to avoid it.
3) Reasonable care and caution should be taken.
After analyzing the fact, it can be concluded that the incident was not an inevitable accident. Proper
due care was not taken. The electricity board has not examined the conductor from time to time.
This accident could have been avoided by regular inspection of the conductors and the wires. We
can see that all the elements necessary to prove the negligence is present. Electricity boards should
be held liable for the death of women. But the electricity board pleaded the defense of inevitable
accident which was rejected by the court and compensation was awarded for Rs. 50,000 to the
defendant.
Miska vs Sivec, an interesting case in the Ontario court of appeal. In this case, the defendant shot on
the plaintiff’s leg, but in court, he stated that the act was in the course of self-defense. If the
defendant would persuade the jury, it was held that the burden of proof will shift from defendant to
plaintiff.
An Act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature,
one which could not by any amount of care would have been foreseen, or if it has been foreseen,
could not be avoided by any amount of care by any individual.
Sir Frederick Pollock defined an inevitable accident as an accident which is not avoidable by any
precautions, a reasonable man could have expected to take.
It doesn’t necessarily mean to be a catastrophe which could not have been avoided by any
precautious means by any reasonable man at the moment which it occurred, hence an accident is
one which arises out of the normal course of things, something so unusual as not to be looked by a
person of reasonable prudence. Hence inevitable accidents can be divided into two categories, those
which are the byproduct of the elementary forces of nature unconnected with the agency of
mankind or those acts which have their origin in the agency of man.
Force major/ Vis major/ Act of God
An act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature,
one which could not by any amount of care have been foreseen, or if it has been foreseen, could not
be avoided by any amount of care by any individual.
An act of God is one which has been there ever since the existence of our planet Earth, we have
been witnessing natural calamities since the existence of mankind, these include, Earthquakes,
floods, tornadoes, wildfires, etc. In such occurrences, lives are lost, properties are destroyed or
significantly damaged when the forces of the nature strike harshly and suddenly.
Nature’s blows are severely dangerous and may come as a huge shock or surprise both to the victims
of the disaster and even the accused individuals or tortfeasors.
In many cases, the defendants are quick to claim the defence of an act of God as a defence to those
cases. To afford the defence of vis major, there must be an immediate or proximate cause (Causa
causans) and not just a cause had it not existed might never have led to the damage caused or
complained of (causa sine quo non).
Before an act of God may be granted as a defence the defendant has to prove himself to have done
everything that a reasonable and a prudent person could do in such a scenario.
Act of God and Negligence
An act of God is an accident caused by the working of extraordinary natural forces whereas the
effect of ordinary natural causes, such as a water leak through the roof or ceiling may be foreseen
and may also be avoided by taking certain reasonable actions, failure of these actions i.e. the
precautions that are necessary contribute to negligence.
Negligence is basically the breach of an obligation or a duty or a responsibility to act with care
towards something, or, it is the failure to act as a reasonable and a prudent person would act under
the same or similar circumstances.
If the damages suffered are incurred solely due to natural causes without any known fault, there is
no liability because of the act of God.
There are two ways of viewing this situation:
The act of God either supersedes the defendant’s negligence, or the defendant’s negligent act did
not cause the injury.
The defendant’s actions did not cause the damage since the injury would have occurred anyway in
both cases. An act of God is so extraordinary that reasonable care would not avoid the
consequences that it produces, hence, the injured party has no right to the damages which they
might receive. Accidents caused by tornadoes, floods, and severe ice storms are usually considered
acts of God, but fires are not considered unless they are caused by lightning.
Both of these defences are very similar in their nature and in fact by the definition of vis major, it is
considered to be a type of an inevitable accident but, a careful study of these two concepts will
definitely differentiate the two as both of these are very distinct forms of escaping liability in the law
of Tort. In practice, they are referred to as two distinct defences instead of being a subset of one
another.
An act of God has a much wider domain as it is a principle which makes God the defendant and
hence it declares the accident to be truly out of the human control and reasonableness.
The plea of an inevitable accident has lost its practicality in today’s day and age, as it has lost its
utility since the principle of absolute liability, applies even in the absence of defendant’s negligence
and with the growth in the dimension of science the number of accidents which were considered to
be inevitable is fastly diminishing.
Case Law: Shridhar Tiwari V. UP State Road Transport Corporation(SRTC)
In this case, A bus of UP SRTC was travelling through a village where a cyclist had suddenly out of
nowhere come in front of the Bus and in order to save that cyclist the driver applied the brakes as a
result of which the Bus skidded on the road as the surface of the road was wet at that time and its
rear portion struck against the front portion of Bus No. USA 8037. Here the defendant was not held
liable at it was a sheer case of an inevitable accident.

4.
Res Ipsa Loquitur literally means Things speak for itself. Prima facie it appears to be a simple and
easy maxim to understand and apply. However it is not as simple as it appears to be. There is a
popular joke among students of law, "Res Ipsa Loquitur, sed quid in infernos dicetne?" ("The thing
speaks for itself, but what is it saying?").

Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant.
Generally, in a case it is the plaintiff who has to provide evidence to prove the defendant's
negligence. There is however, a change when this maxim is used. The burden of proof shifts to the
defendant. There is a presumption of negligence on part of the defendant and it is upto him to prove
his non-liability and that it was not his act which caused the plaintiff's injury. The defendant leads
the evidence.

The project is of much relevance today considering the globalization and the increasing cases of
absolute liability where the maxim finds much application with cases as recent as M.C.Mehta v.
Union of India applying this maxim. In this project the researcher has attempted to elucidate upon
the various situations when this maxim finds its applicability like in matters of gross negligence
where a person is affected at large.

APPLICATION OF Res Ipsa Loquitur

Res Ipsa Loquitur is an inappropriate form of circumstantial evidence enabling the plaintiff in certain
cases to establish the defendant's likely negligence. Hence the doctrine properly applied does not
entail any covert form of strict liability. It just implies that the court doesn't know and cannot find
out, what actually happened in the individual case. Instead, the finding of likely negligence is derived
from knowledge of causes of the type or category of accidents involved.
Ng Chun Pui v. Lee Chuen Tat [5]
The first defendant was driving a coach owned by the second defendant westwards in the outer lane
of dual carriageway in Hong Kong. Suddenly the coach crossed the central reservation and collided
with a public bus traveling in the inner lane of the other carriageway, killing one passenger in the bus
and injuring the driver and three others on the bus. The plaintiffs could not prove that the
defendants were negligent and had caused the accident. They however proceeded on the basis of
Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent.
However, they failed to do so. And the judicial committee of the Privy Council held the defendants
liable for the plaintiff's injuries.
Thus, Res Ipsa Loquitur finds it's applicability in accident cases.
Houghland v. R.R. LOW (luxury of coaches) Ltd.[9]
The plaintiff's suitcase was deposited with the defendant bus-owner's driver at the beginning of a
journey. The bus broke down and the luggage was transferred by the owner's servants from the
bus's boot to another bus. At the end of the journey the suitcase could not be found. The plaintiff
was awarded damages and the court held that if the luggage had been lost then it was upto the
defendant to prove that he was not negligent, which is nothing but Res Ipsa Loquitur.
In Res Ipsa Loquitur, the defendant will lead evidence. There is a two step process to establishing Res
Ipsa Loquitur-
1. Whether the accident is the kind that would usually be caused by negligence.
2. Whether or not the defendant had exclusive control over the instrumentality that caused the
accident.
If found, Res Ipsa Loquitur creates an inference of negligence.

Res Ipsa Loquitur finds its applicability in a variety of situations. In the United States it is mostly
applied in cases of commercial airplane accidents and road and traffic accidents.

Generally, it is applied in cases of medical negligence where it cannot be ascertained as to which

specific act of the hospital had caused the injury and where the situation is never outside the control
of the hospitals.

Res Ipsa Loquitur is finding increasing applicability in the modern era. It is applied in cases of
industries like the use of the maxim in the M.C.Mehta v. Union of India popularly known as the olium
gas leak case and generally all cases where the rights of the public is violated and they have been
aggrieved and it is not possible for them to establish negligence. So the onus of not proving
negligence is shifted to the defendants.

It is applied primarily in all prima facie cases, where at first instance the negligence on part of the
defendant is evident and without which the injury would not have occurred. In such a case, it is
presumed that the defendant is negligent and it is upto him to prove why he is not negligent.
4.
Volenti Non-Fit Injuria:
Volenti non fit injuria is an often-quoted form of the legal maxim formulated by the Roman jurist
Ulpian which reads in original: Nulla iniuria est, qu� in volentem fiat.[1] It is widely regarded as a
defence for the commission of a Tort around the world. It is found in the English Common Law
System, the Scottish Law, the taw in The United States and in Canada.

When a person consents for the infliction of harm upon himself, he has no remedy for that under
the law of torts. which means that if a person has voluntarily consented to do something, or has
given permission to someone to do a certain thing, then he cannot claim damages under the Law of
Torts.
Essentials of Volenti Non-Fit Injuria:
The Risk must be known to the Plaintiff: When the plaintiff has the knowledge that the act is going to
cause harm or loss and in spite of that accepts to do it, agreeing to suffer the injury, then the
defendant will not be liable for such an act. But only having the knowledge about such a risk is not
enough for the application of this maxim. However, having knowledge of such a risk is not enough
for the application of this defence, the principle of Scienti non-fit injuria[2] is recognised, which
means that mere knowledge only constitutes a partial defence and does not amount to consenting
to the risk.

In the case of Dan v. Hamilton[3], the plaintiff chose to travel in Defendant's car, even though he
knew that The defendant was drunk. The car crashed, causing injuries to him. The defence of volenti
non-fit Injuria is applied when there is �complete knowledge of the danger� and proof of the
person consenting to it. Although knowledge of the danger can also be used as to be evidence of
consent to suffering it. Here in this case, the plaintiff knew that his friend was drunk and still got in a
car with this knowledge and thus, the court held that the defendant could not be held liable, and
getting in the car with him was consent enough for the maxim to be applicable.

In Morris v Murray[4], the plaintiff and the defendant had been drinking together, after which they
boarded a flight on the plane which was being flown by the defendant himself. The plane crashed
and the plaintiff was injured. Here, the Judge stated that the Defendant could rely on the defence of
volenti non fit injuria as knowledge could be easily inferred from the facts.

Exceptions to the Maxim:

Consent under Compulsion:

Acts done negligently:

Conclusion:
Volenti Non-Fit Injuria is recognised as a legal defence in countries all around the world. In the
United States, it is identified by the principle of assumption of risk; while in Scottish Law it is similar
to the law of delict and in Canada, it is known as the volentio principle which is prevalent in both
England and in India.

This defence can be exercised by the defendant in cases where he/she can prove that the risk of the
task was known to the plaintiff who sued for damages. In such a case, the defendant won't be held
liable owing to the maxim. The essentials of the application are as such: where the risk was known to
the plaintiff, and when the plaintiff knowing the risk agreed to incur it by giving his free consent.
5.

Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or

liquidation proceedings against another without reasonable or probable cause. This tort balances
competing principles, namely freedom that every person should have in bringing criminals to justice
and the need for restraining false accusations against innocent persons. Malicious prosecution is an
abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. The
foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law
in motion and it is designed to encourage the perversion of the machinery of justice for a proper
cause the tort of malicious position provides redress for those who are prosecuted without cause
and with malice. In order to succeed the plaintiff must prove that there was a prosecution without
reasonable and just cause, initiated by malice and the case was resolved in the plaintiff's favor. It is
necessary to prove that damage was suffered as a result of the prosecution.

In an action of malicious prosecution the plaintiff must prove:

1) That he was prosecuted by the defendant.
2) That the proceeding complained was terminated in favour of the present plaintiff
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with a malicious intention, that is, not with the mere
intention of getting the law into effect, but with an intention, which was wrongful in fact.
5) That he suffered damage to his reputation or to the safety of person, or to security of his
property.

The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar
Bannerjee. The defendant had filed a complaint before the magistrate charging the plaintiff with
cheating. The magistrate thereupon examined the complainant an oath and made an inquiry under s
202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who
attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the
complaint under section 203 of the code. In these circumstances the Privy Council held that there
was a prosecution .The test is not whether the criminal proceedings have reached a stage at which
they may be described as a prosecution, the test is whether such proceedings have reached a stage
at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who
dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming
that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually
resulted.

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.

In the Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd. The officer of the
respondent corporatin found certain articles missing while preparing inventory and checking up with
the stock register. The plaintiff was prosecuted under sec. 403 of the I.P.C. but was given the benefit
of doubt and hence acquitted. The plaintiff brought an action for malicious prosecution. The plaintiff
could not prove that he had been harassed by the officers. There was held to be reasonable and
propable case for prosecution of the plaintiff and the4 fact that plaintiff was not harassed indicated
that there was no malice and hence the charge was not held.
Decision
The court decided that the plaintiff was maliciously prosecuted by the defendants without any
reasonable and propable cause , and therefore they are liable to pay damages worth Rs 12,500.00 to
the plaintiff.

Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion
on a criminal charge. In order to succeed the plaintiff must prove that there was a prosecution
without any just and reasonable cause, initiated by malice and the case was decided in the plaintiff's
favour. It is necessary to prove that damages were incurred by the plaintiff as a result of the
prosecution. The burden of proof rests on him. He has to prove the existence of malice.
Malice may be proved by previously stained relations, unreasonable and improper conduct like
advertising the charge or getting up false evidence.