What is malicious prosecution? Previously available only in relation to criminal claims, this case now offers a brand new cause of action for a defendant who has suffered as a result of the malicious prosecution of civilproceedings against it, for which there was no reasonable and probable cause. Malicious prosecution cases are complex and have many legal requirements, as you can see. Deterrence is created amongst people against instituting malicious litigation. One view was that a prosecution began only when the process was issued and there could be no action when a magistrate dismissed a complaint under Section 203 of the code of criminal procedure. Malicious Prosecution. An honest belief by defendant in the guilt of the plaintiff. Interestingly, malicious prosecution has been an entrenched part of common law for many centuries. The Supreme Court has observed that there is a rising trend amongst the women to file malicious cases under Sec. All rights reserved. Malicious prosecution is an institution of proceeding by a person against someone who has initiated a malicious proceeding against him in order to cause him harm and damage. Search, Amended Complaint for Negligence and Wrongful Death, Complaint for Personal Injury - Slip and Fall, Negligence and Personal Injury Questionnaire, Emotional Distress, Privacy, and Dignitary Torts. Essentials of malicious prosecution and Indian courts, Favourable termination of the prosecution, Defences available to malicious prosecution claims, Distinction between Malicious Prosecution and False Imprisonment, Law of Torts; Notes, Case Laws And Study Material, Study Material for LLB, LLM, Judiciary and Entrance Exams, Relevancy of Motive in Tortious Liability, Essentials of the Law of Torts | Explained, Mechanisms For Settlement Of Industrial Disputes, International Mediation Training Program | Jagran Lakecity University, JOB: Joint General Manager [Legal] at IRFC-Indian Railway Finance Corporation | Apply before 14 Jan. LL.M. An example of malicious prosecution includes a police officer charging and prosecuting a person without any real evidence and for a purpose other than the proper use of the criminal law. But Arizona does not have a criminal statute for malicious prosecution. In addition, just the uncertainty and fear of entering a criminal trial is often enough to convince a jury that the malicious act caused severe emotional distress. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case. Ramaswami, J. has stated the law as below: “The settled law in India is that the defendant is liable as prosecutor, if he filed a complaint himself or through his agent or advocate or, if the prosecution was by the police of the State, at his instance and on his information.”[16]. In S.T. Sahib v. Hasan Ghani[9], it was held that, “The action for malicious prosecution is part of the common law of England. The other view was that a prosecution commenced as soon as a charge was made before the court and before the process was issued to the accused. It is an established rule that in order for malicious prosecution to prosper, the following requisites must be proven by petitioner: (1) the fact of prosecution and the further fact that the defendant (respondent) was himself the prosecutor, and that the action finally terminated with an acquittal; (2) that in bringing the action, the prosecutor acted without probable cause; and (3) that the prosecutor was actuated or … Wash. L. Rev. The proper test was indicated by the Privy Council in Mohammad Amin v. Jogendra Kumar Bannerjee[15]. The Supreme Court has reiterated the principle in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[26]as, “Malicious Prosecution – Malice. However, Section 320[12] of the Code must be kept in mind while analysing the definition of ‘prosecution’, to ensure that a wider context is given to the same. IF DAMAGES RESULT FROM A PERSON'S EXERCISE OF A RIGHT, IT IS DAMNUM ABSQUE INJURIA. – The damage done to a person as to where man is put to a danger of losing his life, limb or liberty. Even the present provisions of law which vaguely talk about malicious prosecution and punishment thereto, do not consider the violation of fundamental rights like the right to life & liberty, right to reputation, right to work, etc. 189, p.194. The prosecutor becomes obsessed with the idea that the businessman caused him to lose the election. Actual damages will vary from case to case and depending on your jurisdiction. Whether Mr Wood will be able to prove his case is yet to be determined, and the case is expected to commence in February next year. It was held that 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. The defendant then filed a suit of malicious prosecution against the plaintiff. In the case of malicious prosecution, the, In malicious prosecution, it is necessary to show that the proceeding was without any. Google Chrome, The proceeding went on over three years. 167 at p. 168. 170 at 192 to 193: There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution: a) the proceedings must have been initiated by the defendant; For the efficient working of the criminal administration of Justice, the law expects every citizen to bring criminals to the courts of justice. This definition was approved by the House of Lords in Herniman v. Smith[20]. The law of malicious prosecution has evolved generously through ages. Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money. The damages may not necessarily be pecuniary. Malice can be best proven by portraying the wrong motive or by indicating that the circumstances of the case were such that the only causation factor of the prosecution was some wrong or indirect motive of the prosecutor. [24] West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976. [34] The threshold to maintain a suit for malicious prosecution is undoubtedly high, as all of the aforementioned requisites have to be met to ensure success in the suit. Malicious Prosecution-Definition. ACTIO DE PASTU. In malicious prosecution, the plaintiff has to prove the following essentials. Such actions are referred to as malicious prosecution, whether it's an unscrupulous prosecutor filing false charges against a political rival or a corporation suing a small business in order to put the competition out of business. Plaintiffs also may claim a damaged reputation, loss of future earning potential, attorney fees, court fees. Actual damages for a malicious prosecution claim will hinge on the emotional impact of the act, such as the confusion, bewilderment, and isolation typically experienced by the wrongfully accused. [25] Raja Braja Sunder Singh Deb v. Ramdeb Das Pattanaik, AIR 1944 P.C. In addition, the plaintiff may be awarded compensation for damage to his reputation, and pain and suffering. Malicious prosecution denotes a civil or criminal lawsuit filed against you without sufficient evidence or for an improper cause, such as harassing you or ruining your reputation. A suit for malicious prosecution seeks to recover damages incurred as a result of a previous criminal or civil lawsuit which was unsuccessful, and was brought without probable cause, and for a malicious purpose (such as, to harass or annoy, rather than to seek a judicial determination of the claim). The main difference between claims based on criminal and civil actions has to do with evidence. Favourable termination does not signify that the plaintiff is innocent, or he has been acquitted, but that he has not been convicted. [4] In its contours of development, the tort has grown to provide protection and remedy to those who have been wronged by an abuse of the judicial process. For the institution of the malicious proceeding, it is essential that plaintiff should prove that he was falsely prosecuted by the defendant without any reasonable and probable cause and the defendant has malafide intention to cause damage to plaintiff. The penalty for the crime of malicious mischief shall depend upon the value and the kind of the property damaged. 498A of Indian Penal Code, and that the police should not make automatic arrests in such cases as it permanently scars the reputation of the person. Malice can be proved by evidence of the conduct and declarations. 1. [5] The concept of malicious prosecution was formulated in America by Chief Justice Taney. A mere presentation of complaint to a magistrate who dismissed it on the ground that it disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. In Corporate & Financial Law – To Pursue Or Not To? Your email address will not be published. The emotional pain usually is more pronounced if the claim is in response to malicious criminal charges, since the plaintiff may have spent time in jail or otherwise detained or treated as a criminal. [31] However, this does not mean that if a prosecution ends in acquittal the informant was malicious. [30] Mitchell v. Williams, (1843) 11 M&W. It cannot be limited only to the process which starts from the formal act of taking cognizance by the Court. We recommend using [31] Jogendra Garababu v. Lingaraj Patra, AIR. [27] Malice includes any other improper purpose motivating the prosecutor, such as, to gain a private collateral advantage[28], and an indirect motive, that is, some motive other than a desire to vindicate public justice, or private right.[29]. This case, which leapfrogged directly from the High Co… | Last updated December 06, 2018. The damage must also be the reasonable and probable results of malicious prosecution and not too remote. Rather, it has to do with the individual who brought the false charges against the criminal defendant. The basic evolution of the law has taken place in England. [4] John T. Ryan, Jr., Note. Lack of reasonable and probable cause is to be understood objectively; it does not connect the subjective attitude of the accuser. Law, p. 184. Reasonable grounds of the existence of a state of circumstances; Assuming those circumstances to be true, whether a reasonable man placed in the position of the defendant would have come to the conclusion that the accused might be guilty; And the defendant must have an honest belief in the guilt of the plaintiff. universitas. [34] Gilchrist v. Gardner, (1891) 12 N.S.W. The plaintiff must prove the following (as summarised by the High Court in Beckett): Making malicious prosecution, a tort is useful in the following ways: [1] Deepak Bajaj v. State of Maharashtra and Ors, AIR 2009 SC 628. The elements of an action for malicious prosecution. Conversely, if a conviction stands, then the claimant will fail in an action for malicious prosecution. At times, you can be sued as the scapegoat in a genuine personal injury when you had little to do with it. Disablement pension. But, because of the improper personal motives of the complainant, at times, if an innocent person is hauled up before a court of law, it may result in imprisonment or pecuniary loss to him. 2003 Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780. “In this jurisdiction, the term ‘malicious prosecution’ has been defined as an action for damages brought by one against whom a criminal prosecution, civil suit or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or other proceeding in favor of the defendant therein.” Only the person in whose favour the prosecution has terminated can file for an action of malicious prosecution. Your email address will not be published. Visit our professional site », Created by FindLaw's team of legal writers and editors [28] Nurse v. Rustomji, AIR 1924 Mad. Chief Justice Taney also mentioned the tort’s extension to maliciously initiated civil cases. It is often seen that the entire machinery of the police, witnesses and even the court staff are hands in glove with the prosecutor. The institution or continuation of a civil or criminal legal proceeding against the plaintiff; By, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action); Termination of the prior proceeding in favor of the plaintiff (for instance, the case was dismissed); Absence of probable cause for instituting the prior proceeding; Malice as the primary purpose for the prior action; and. Malicious prosecution involves the prosecution of a person without reasonable grounds and for an improper purpose. A county prosecutor runs for mayor and loses the election. Pension benefits. Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of process against property, and malicious search. Otherwise, providing unsworn false information is no worse than a class 1 misdemeanor. Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause.Generally… [5] W.Page Keeton et al., Prosser and Keeton on the Law of Torts, 5th Ed., (1984) (providing overview of malicious prosecution in American Tort law and its extension to malicious civil claims); cf. It starts with the evolution of the tort of malicious prosecution, goes into and explains the various essential ingredients of malicious prosecution with extracts from relevant case laws and finally touches upon the defences available for malicious prosecution. ACCOMPLICE. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. The mental stress and agony, the loss of reputation, loss of livelihood and earning, the costs of defending the prosecution, the physical hardships etc. Definition: Malicious prosecution is the malicious institution against another of unsuccessful criminal or bankruptcy or liquidation proceeding without reasonable and probable cause. Further, this helps the court save its time from wasting on such frivolous litigations and eventually the number of cases in court drops down since only the real legal disputes remain, thereby reducing the pendency of cases in courts. 22 (2nd Ed. If a defendant has a reasonable and probable cause for setting the criminal law in motion, the mere fact that he might have pursued a civil remedy cannot render him liable for malicious prosecution. Perjury in Arizona is a class 6 felony, (maximum possible penalty 1 1/2 years of prison) if the false statements were sworn out. It has been held that the ambit of ‘prosecution’ cannot be extended to the mere filing of a complaint before the police. Learn how your comment data is processed. 13 at p. 14, [16] 3 C. Ambalam v Jagannatha, AIR 1959 Mad. Even the malicious issuance of a search warrant without probable cause may trigger such a claim. It is also known as “abuse of process”, that is, abuse of process of law for personal interest. In a malicious prosecution case, the Plaintiff must prove the four elements as articulated in Nelles v. Ontario, [1989] 2 S.C.R. Generally, any malicious criminal proceeding that lacks probable cause -- regardless of whether the claimant was tried or even indicted -- may give rise to a malicious prosecution claim. Are you a legal professional? [3]. Thus, the aggrieved person can claim compensation for the infringement of his rights under the law of torts. For example, mental suffering is usually considered an element of general damages in a claim based on malicious criminal prosecution, with no special proof required. Malicious prosecution and abuse of process are related types of civil lawsuits where one person (the plaintiff) sues another person (the defendant) for, in a prior case, trying to use the legal system against the plaintiff in an inappropriate manner. TO SUE OR NOT TO SUE? For damages for seduction or breach of promise of marriage. It acknowledges not just the importance of a person’s reputation, but also the trauma every person has to suffer while dealing with any litigation and the consequent losses thereto. The defendant was even kept in custody for three months and then acquitted due to lack of evidence. Criminal and civil cases that lack sufficient evidence usually aren't pursued. The plaintiff must prove that the prosecution was instituted against him, without any reasonable and probable cause, and that it was instituted with a malicious intention, which was wrongful in point of fact. When a plaintiff is successful in his case, damages for malicious prosecution may be substantial. ADMINISTRATION OF ESTATES. In order to effectively understand the tort of malicious prosecution, it is necessary to study every ingredient which it is comprised of. Malicious prosecution is: a civil cause of action in California designed to go after individuals who file frivolous lawsuits and cause damages as a result. That he acted without reasonable and probable cause. Unless the proceedings instituted are terminated in his favour, the plaintiff cannot initiate a suit for malicious prosecution. In assessing the damage the court to some extent would have to consider: Since the tort of malicious prosecution includes the mental element (malice, reasonable and probable cause) which needs to be proved, there are certain shortcomings. Malicious prosecution is a civil action where a person (the plaintiff) can claim redress where a malicious prosecution was initiated or continued by the defendant (usually the state) without reasonable or probable cause. P. 82 required for a malicious prosecution ( tort ) A. ABSOLUTION from the INSTANCE evolution the... Unjust prosecution to the plaintiff was charged to, the plaintiff committed the crime. That they have been wrongfully instituted civil or criminal Firefox, or Edge! Man ’ s extension to maliciously initiated civil cases conversely, if prosecution... Process, especially criminal prosecutions for personal spite compensatory and sometimes punitive damages place in England and the U.S.A... 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