Malicious Prosecution Project

A PROJECT ON

Trespass - An Analysis

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Submitted To

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARHSubmitted On 22nd August, 2015

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Table of Contents

• Introduction 2

• Statement of problem 3

• Hypothesis 4

• Acknowledgment 5

• Research methodology 6

• Objective 7

• Review of literature 8

• Essential condition 9

• Prosecuted by the defendant 10

• Termination of proceedings in plaintiff’s favour 11

• Without reasonable and probable cause 12

• Prosecution by the defendant with malice 13

• Damage 15

• Distinction b/w false imprisonment and malicious prosecution 16

• Conclusion 17

• Bibliography 18

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CHAPTER 1: INTRODUCTION

Trespass is an ancient set of wrongs which mainly deals with the direct, and usually

intentional, invasion of a claimant’s interest in either his person, his land or his goods.

Trespass was one of medieval forms of action, the second being “trespass on the case” or

simply “case” case covered injury which was consequential to a wrong but the wrong was

neither forcible nor direct. The distinction can still be seen in the law of torts today; torts

which are actionable per.se, such as trespass to land and trespass to person originate from old

forms of trespass, while those torts which require prove of damage such as negligence and

nuisance.

The law of trespass today has much of its origin in criminal law where its function is

deterrent than compensatory. For example an action will lie in trespass but not in negligence

even if the claimant has suffered no damage. This shows its usefulness in protecting civil

rights hence much of the law of trespass is the basis of a civil liberties today.

Some cases of trespass can be filed under criminal law for example trespass to the person

such as assault and battery. This occurs where a criminal offence has been committed. In

such cases the courts have powers under the Powers of Criminal Courts (Sentencing) Act

2000, s.130 to make a compensation order.

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STATEMENT OF PROBLEM

The tort of malicious prosecution can have a negative effect as a just accuser might be deterred in instituting criminal proceedings against a person because of fear of damages for malicious prosecution.

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Hypothesis

“Malicious prosecution may deter an innocent from filing a complaint.”

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Acknowledgement

I would like to thank Mam Madhurima De Sarkar for offering this subject, Malicious

prosecution and for her valuable guidance and advice.

Nikhil Parthsarthi

Semester 3

Research MethodologyPage | 5


This research paper is descriptive and analytical – based on secondary sources, i.e.,

books and electronic sources (internet).

Books and other references have been primarily helpful in giving this project a firm

structure. Websites, dictionaries and articles have also been referred.

Footnotes have been provided wherever needed to acknowledge the source.

Objective

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To study the concept of Malicious prosecution

To know contribution of various factors to constitute malicious prosecution.

To highlight the difference between false imprisonment and malicious prosecution.

Review of literature1. Singh S.P.,Law of Torts

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2. Law of torts, RK Bangia

CHAPTER 2: Essential conditionsThere are certain essential conditions that need to be fulfilled in order to prove the tort of

malicious prosecution. This can be explained with the help of an example. Suppose, A

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maliciously and without any reasonable cause, prosecuted B for theft. B was acquitted by the

court as an innocent person. Now B has a remedy against A. In a suit for damages for

malicious prosecution, the defendant must prove the following essentials:

(a) That he was prosecuted by defendant.

(b) He was prosecuted without any reasonable and probable cause.

(c) That defendant prosecuted him maliciously.

(d) The proceeding terminated in favour of the plaintiff.

(e) Plaintiff suffered damage as a result of such prosecution

All the above are discussed in detail in the following chapters.

CHAPTER 3: Prosecuted by the Defendant

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Here two conditions are very essential, plaintiff has to prove –

1. He was prosecuted

2. The defendant prosecuted him.

Prosecution

Prosecution means to set the law in motion against another person. And it can be set in

motion when an appeal is made before a person clothed with judicial authority. Thus,

prosecution normally means criminal proceedings and not civil proceedings. But for the

purpose of this tort it also includes any other proceedings which reflect plaintiff honor or

character. Eg. Liquidation and bankruptcy proceedings. The question is at what stage the

prosecutions commences? It is a settled law that it doesn’t commence when a complain

ismade to police authorities and police starts its proceedings .In the case bolandanda

pemmaya vs ayaradara

,the facts were defendant lodged a complaint in the police station alleging the fact that the

plaintiff have committed theft in his house. The sub inspector of the police station called both

and recorded the statement. Heals searched the plaintiff house and found complaint as false.

He filed his report. Plaintiff filed a suit for damages for malicious prosecution. Rejecting the

contention of the plaintiff. The court held that mere filing of the before the police is not

amount to prosecution it starts when some judicial authority is set in motion as a consequence

of such complain.

The question arises that has the proceedings reached to a place where there is damage to the

plaintiff.

Prosecution of plaintiff by the defendant

It is for the plaintiff to prove that the defendant instituted the prosecution against him.

Instigating a prosecution is different from act of giving information on the basis of honest

suspicion.1However, if the story told is false to the knowledge of the teller, and the

prosecution is launched by the police without any further investigation, he will be

prosecuted.2

1 R Dayal v Kallu,1940 AIR 2132 AIR 1974 P&H 215

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CHAPTER 4: Termination of proceedings in Plaintiff’s favor

If the prosecution would result in plaintiff’s conviction,no suit would lie against the

defendant.But where the prosecution ended in favour of the plaintiff, he has a cuse of action

against the defendant for such prosecution. The prosecution ends in plaintiff’s favour when

he shows that

1. He was acquited by the court either on merit3 or on tehncal grounds4

2. His conviction was quashed or set aside by the appellate court5

3. His prosecution was discontinued or withdrawn by the defendant.

4.

3 Berry v BTC,1962 1 QB 3054 Wicks v Fentham, 1791 4 TR @2475 Herniman v Smith, 1938 AC 305

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CHAPTER 5: Without resonable and probable cause

The distinction between “resonable” and “porbable” is difficult to make. It is almost similar

but since it has been used for a ong time the practice continues.

Resonable and probable cause has been defined by Hawkins J. in Hicks and Faulkner in

these words : “an honest belief in the guilt of the accused based upon a full conviction,

founded on resonable grounds, of the existance of a state of circumstances, which, assuming

them to be true, would resonably lead any ordinary prudent and cautious man placed in that

position of the accuser,to the conclusion that the person charged was probably guilty of the

crime imputed.”

Basically it means honest belief in the guilt of the accused based upon resonable ground.

Normally, the plaintif has to prove that te defendant, without resonable and probable cause,

prosecuted him, but there s one exception to this rule- where the defendant claims to have

seen the plaintiff commiting the crime, and the trial ends in acquital on merit.

In the case Girija Prasad Shankar v Umanshankar Pathak6 , the plaintiff Umashankar was an

advocate and also a Jan Sangh leader. Jan sangh started an agitation due to food security in

Panna district.Girja Prasad , a sup inspector, was depted to control the crowd. Girja Prasad

stated while he was being assulted, his revolver got fired. The same day he loged an FIR that

he was assulted, his wristwatch was snatched and that Umashankar was present at the scene

and was instigating the crowd. The court found that the complaint was false and at that time

Umashankar was not there but in a case beore the civil judge.

Girja Prasad was, therefore, acting without resonable cause and trying to use the machinery

for an improper purpose of falsely imlicating the plaintiff. He was held liable for malicious

prosecution.

6 AIR 1975 MP 79

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CHAPTER 6: Prosecution by the defendant with malice

It is for the plaintiff to prove that the defendant acted, with malice intention. Malice means

indirect

And improper motive as said in Jogendra v Lingraj.7 It is to be established by inference

from circumstances and cannot be proved by the direct evidence. Intention of the man even

the devil knoweth not. Infact the jist of the action of malicious prosecution is malice. Malice

and without reasonable and probable cause are two distinct ingredient for an action for

malicious prosecution which the plaintiff must prove. In abdul majid v. harvans choubey,

the station officer conspired with two other defendants concoctod a story that plaintiff was

involved in a dacioty and the ‘hansuli’ used in dacoity was recovered from plaintiff’s house.

The court acwuited the plaintiff on the benefit of doubt . the plintiff brought an action

against the defendant. The court found that the defendants were actuated by improper ans

wronful motive to prosecute the plaintiff on concocted story. The court hels that the

defandants were liable.

But where there is resonable and probable cuse for intituting prosecution the defendant will

not be liable.thus in Bhogi lal v Saroj behen8, B agreed to sell his house to A fo 15000 rs

and accepted 2000 as earnest money from A. late A came to know that house was already

mortgaged by B and what B told at the time of agreement was false.he instituted criminal

proceedings against B for cheating under setion 420 IPC but the court aquitted him, B then

filed a case against A for malicious prosecution. The court held that A had without malice

instituted the proceedings believeing honestly that he had been cheated.

Thus it may be stated that any motive other than that of simply instituting a prosecution for

the purpose of bringing a person to justice is a malicious motive on the part of the person

who acts in that way.9

It may be added that it is not necessary that there should be malice at the time of laumching

the prosecution. Even at the subsequent stage if the prosecution become malicious, he may

be liable for malicious prosecution.

7 AIR 1970 Ori 918 AIR 1979 Guj 2009 M.L.Ahir Gayawal v Sahai P. Dhami

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It may also be noted that a corporation is liable to an action for malicious prosecution

although it has no mind of its own. The liability is based on the principle of agency.

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CHAPTER 7:DamageThe plaintiff has to prove that he has suffered damage as a result of his prosecution. There are

three types of damages10 and the proof of any one would be sufficient to support an action for

malicious prosecution. They are

(A)The damage to a man’s fame i.e. where the plaintiff has been accused of scandalous

matter.

(B) Damage to the person i.e. when the person is put in danger of losing his life, liberty or

limb.

(C) 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.

It must be noted that the damage must be the reasonable result of prosecution and not too

remote. In Sova Rani Dutta v Debabrata Dutta11, the defendant logged a false FIR against the

plaintiff and his sister alleging theft of her ear rings. The defendant knew that the complaint

was false and that the police would handcuff the plaintiff. The defendant was held liable for

malicious prosecution and the humiliation suffered by the plaintiff due to handcuffing.

10 Saville v Roberts11 AIR 1991 Cal 185

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CHAPTER 8: Distinction between false imprisonment and malicious prosecution

Following are the main points of distinction between false imprisonment and malicious

prosecution are:

1. False imprisonment is wrongfully restraining the personal liberty of the plaintiff while

malicious prosecution is the unlawful use of legal procedure to bring about legal

confinement.

2. The personal liberty of plaintiff is wrongfully restrained by private individual in false

imprisonment whereas arrest under malicious prosecution is secured by judicial

sanction.

3. The defendant under false imprisonment must affirmatively prove the existence of

reasonable and probable cause as justification where as the plaintiff has to prove its

non existence in malicious prosecution.

4. Malice is an essential ingredient for an action of malicious prosecution but malice

may not be proved for false imprisonment.

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CHAPTER 9: ConclusionMalicious prosecution is a common law intentional tort. Criminal prosecuting attorneys and

judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial

immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute

an abuse of process. The parties, who have abused or misused the process, have gone beyond

merely filing a lawsuit. The taking of an appeal, even a frivolous one, is not enough to

constitute an abuse of process. The mere filing or maintenance of a lawsuit, even for an

improper purpose, is not a proper basis for an abuse of process action.

Thus the above mentioned hypothesis stands false as there is enough procedural law and

firmly laid down principles that protect and individual from malicious prosecution as well as

the fear of filing a complaint thinking they would be charged of malicious prosecution.

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https://en.wikipedia.org/wiki/Tort

https://en.wikipedia.org/wiki/Common_law


BIBLIOGRAPHY

CASES

1. Dayal v Kallu,1940 AIR 213

2. Berry v BTC,1962 1 QB 305

3. Wicks v Fentham, 1791 4 TR @247

4. Herniman v Smith, 1938 AC 305

WEBSITES

1. www.lawnet.com2. www.legallyindia.com3. www.clatapault.com4. www.lawcentre.com5. www.lawbritinica.com6. www.lawted.com

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