Malicious prosecution consist instituting unsuccessful criminal proceeding maliciously and without reasonable and probable cause. When malicious prosecution through criminal proceeding causes actual damage to the party prosecuted it is tort for which he can bring the action.
Essentials of malicious prosecution
In order to succeed in an action for malicious prosecution the following essentials have got to be proved –
Prosecution by defendant
For the malicious prosecution prosecution by defendant is essential ingredient ingredient. Prosecution means criminal proceeding against a person in a court of law. Proceedings before the police are proceding anterior to prosecution. A prosecution is there where a criminal charge is made before a Judicial officer or a Tribunal. In Nagendra nath Ray vs Basanta Das Bairagya, Theft was committed in the defendant’s house, he informed the police that he suspected the plaintiff for the same thereupon the plaintiff was arrested by the police but it was subsequently discharged by the magistrate as the final report showed that there was no evidence connecting the plaintiff with that theft. It was held that it was not maintainable as there was no prosecution at all because mere police proceeding are not same thing as prosecution.
Prosecution should be made by the defendant. A prosecutor is a man who is actively instrumental in putting the law in force for prosecuting another.
Absence of reasonable and probable cause.
The plaintiff has also to prove that the defendant prosecuted him without any reasonable cause. There is a reasonable and probable cause when the plaintiff has sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed. Mere suspicion is not enough. Prosecutors has to show that he believed in the probability of the conviction.
The burden of proof lies on the plaintiff to show that there was an absence of reasonable and probable cause. If there is a reasonable and probable cause for the prosecution, malice is immaterial because existence of reasonable cause in the plaintiff’s mind is sufficient defence.
The prosecutors belief should be based on enquiry acting on the advice of lawyer, is a good defence provided the lawyer has been fully and fairly acquainted with the all relevant facts within the defendant’s knowledge.
In case of Smt. Manijeh v. Sohrab Peshottam Kotwal, the lawyer was misled and was provided with such facts which the defendant knew to be false. In prosecution on the basis of such advice there was held to be want of reasonable and probable cause and also malice for which the defendant was held liable. It should also be borne in mind that the absence of reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused.
Malice
For the suit of malicious prosecution, it is also necessary for the plaintiff to prove that the defendant acted maliciously in prosecuting him. It means that the defendant is is actuated not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact. In case of Abdul Mazid v. Harbans Chaubey SHO of a police station knowingly concocts false criminal story against the plaintiff and shows the recovery of people from the planttiff’s house. This prosecution is malicious and the plaintiff can sue successful for the malicious prosecution.
Termination of proceeding in favour of plaintiff
It is also essential that the prosecution terminates in favour of plaintiff. If the plaintiff has been convicted by the court, he cannot bring an action for the malicious prosecution even though he can prove his innocence and also that the accusation was malicious and unfounded.
Termination in favour of the plaintiff does not mean judicial determination of his innocence. It means absence of judicial determination of his guilt. It is enough if the plaintiff has been acquitted on technically, conviction has been quashed or the prosecution has been discontinued or the accused is discharged.
Damage
It has also to be proved that the plaintiff suffered damage as a consequence of the prosecution complained of. Though prosecution ends in acquittal, the plaintiff may have suffered damage to his person, property or reputation by it for which he can claim compensation.