SUBJECT:-D.P.

PROJECT TITLE
SUIT FOR MALICIOUS PROSECUTION

SUBMITTED BY
AJITABH
ROLL NO -906, 4th YEAR (BA LLB)

SUBMITTED TO
Dr. B.R.N SHARMA
FACULTY OF D.P.C

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

 ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who
gave their all support and helped me to complete this project.

First of all I am grateful to my subject teacher Mr. BRN Sarma without the kind support of
whom and help the completion of the project was a herculean task for me. He donated his
valuable time from his busy time to help me to complete this project and suggested me from
where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very
useful and could not be ignored in writing the project.

AJITABH

Roll No. 906

RESEARCH METHODOLOGY

The researcher will use Doctrinal Method. The researcher will refer various books, articles various
law journals regarding the project work.

Aims and Objectives:

This research paper looks at the dimensions of suit for malicious prosecution.

Scope and Limitations:

Due to space constraints, the paper is limited to a brief discussion of the points.

Research Questions:

What is the meaning of malicious prosecution?

What is the format of drafting of suit for malicious prosecution?

HYPOTHESIS

The researcher hypotheses that there are certain elements that the plaintiff is required to satisfy in
the suit of malicious prosecution.

Sources of Data:

Secondary sources of data have been used while researching for the paper.

Style of Citation:

A uniform style of citation has been followed throughout the paper.

CHAPTERISATION

1. INTRODUCTION
2. MEANING OF MALICIOUS PROSECUTION
3. ELEMENT OF MALICIOUS PROSECUTION
4. DRAFT FOR THE SUIT OF MALICIOUS PROSECUTION
5. CONCLUSION
BIBLIOGRAPHY
INTRODUCTION

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.1 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 plaintiffs favour. Liability of Malicious Prosecution
has always had to steer a path between two competing principles- one, freedom of action that
everyone should have to set the law in motion and to bring criminals to justice and two, the
necessity to check false accusation against innocent people.

Malicious prosecution is a common law intentional tort, while like the tort of abuse of
process, its elements include

(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or
pursued) a legal action (civil or criminal) that is

(2) brought without probable cause and

(3) dismissed in favour of the victim of the malicious prosecution.

In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation
of criminal proceedings, while the term "malicious use of process" denotes the wrongful
initiation of civil proceedings. 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

1
Lossing v. Superior Court (1989) 207 Cal. App. 3d 635, 638-640[255 Cal. Rptr. 18]
mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for
an abuse of process action.

Origin

The history of malicious prosecution can be traced back to the writ of conspiracy which was in
existence as early as Edwards Is reign. This fell into decay in the 16th century, partly because
the writ of maintenance supplanted it. The gap was filled by an action on the case which
appeared in Elizabeth Is reign and eventually came to be known as action for Malicious
Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts2.

Definition

Malicious prosecution is the malicious institution against another of an unsuccessful criminal,

bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known
as abuse of process, that is, abuse of process of law for personal interest.

In Saville v. Roberts3, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any
of which might ground the action. Malicious prosecution might damage-

a. A persons fame (i.e. his character)

b. Safety of his person

c. Security of his property by reason of his expense in repelling and unjust charge

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.

2
(1738) 90 ER 981 (A)
3
Ibid 2
When does Prosecution commence?

The Prosecution is not deemed to have commenced before a person is summoned to answer a
complaint. In Khagendra Nath v. Jacob Chandra4 there was mere lodging of ejahar alleging
that the plaintiff wrongfully took away the bullock cart belonging to the defendant and
requested that something shoud be done. The plaintiff was neither arrested nor prosecuted. It
was held that merely bringing the matter before the executive athourity did not amount to
prosecution and therefore the action for malicious prosecution could not be maintained. There
is no commencement of the prosecution when a magistrate issues only a notice and not
summons to the accused on receiving a complaint of defamation and subsequently dismissed
it after hearing both the parties.

4
AIR 1977 NOC 207 (Gau)
ELEMENTS OF MALICIOUS PROSECUTION

1. Institution or continuation of Legal proceedings

There must have been a prosecution initiated by the defendant. The word prosecution means
a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in
motion and the law is set in motion only by an appeal to some person clothed. The person to
be sued is the person who was actively instrumental in putting the law in force. There was a
conflict on the question whether there is prosecution of a person before process is issued calling
upon him to defend himself. One view was that a prosecution began only when process was
issued and there could be no action when a magistrate dismissed a complaint under section 203
of the code of criminal procedure. The other view was that a prosecution commenced as soon
as a charge was made before the court and before process was issued to the accused.

The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra
Kumar Bannerjee5.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 Singh6 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.

5
(1947) 49 BOMLR 584
6
[1908] 30 All. 525
2. Termination of the prosecution in the plaintiffs favour

The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before
it is terminated and while it is pending. The termination may be by an acquittal on the merits
and a finding of his innocence or by a dismissal of the complaint for technical defects or for
non-prosecution. If however his is convicted he has no right to sue and will not be allowed to
show that he was innocent and wrongly convicted. His only remedy in that case is to appeal
against the conviction. If the appeal results in his favour then he can sue for malicious
prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.

3. Absence of 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. Faulkner7 there must be: an honest belief
of the accuser in the guilt of the accused and such belief must be based on an honest
convictionof the existence of circumstances which led the accuser and 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 defendants situation
to believe so. 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 the 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

7
[1878] 8 QBD 167
conclusion.

4. Malice

Malice for the purposes of malicious prosecution means having any other motive apart from
that of bringing an offender to justice. Spite and ill-will are sufficient but not necessary
conditions of malice. Malice means the presence of some other and improper motive that is to
say the legal process in question for some other than its legally appointed and appropriate
purpose. Anger and revenge may be proper motives if channeled into the criminal justice
system. The lack of objective and reasonable cause is not an evidence of malice but lack of
honest belief is an evidence of malice. In Allen v. Flood a general rule was propounded that an
act lawful in itself does not merely become unlawful because of the bad motives of the actor
and some of their lordships in the House of Lords suggested that malicious prosecution was
not really an exeption to this rule. The setteled rule is that malice is the gist of the action for
malicious prosecution and must be proved by the plaintiff in the first instance. It is for the
plaintiff to prove that there was an existence of malice i.e the Burden of Proof lies upon the
plaintiff.

Evidence of Malice

Malice may be proved by previously staines relations, unreasonable or improper conduct like
advertising of the charge or getting up false evidence. Though mere carelessness is not per se
proof of malice unreasonable conduct like haste, recklessness or failure to prove enquiries
would be some evidence. When there is absence of some reasonable cause qwing to defendants
want of belief in the truth of his charge is the conclusive evidence of malice. However the
converse proposition is not true because a person may be inspired by malice and also has a
reasonable belief in the truth of his case. There may be malice either in commencing a
prosecution or continuing one, honestly began. The mere fact that criminal prosecution resulted
in acquittal or discharge of the accused will not establish that the defendant had acted with
malice.

5.Damages
It has to be proved that the plaintiff has suffered damages as a result of the prosecution
complaint of. Even though the proceedings terminate in favour of the plaintiff, he may suffer
damage as a result of the prosecution. The damages may not necessarily be pecuniary. Acc to
HOLT C.J. s classic analysis in Savile v. Robert 8there could be three sort of damages any
one of which could be sufficient to support any action of malicious prosecution.
1) The damage to a mans fame as where the matter whereof he is accused is scaldalous
2) The damage done to a person as where man is put to a danger of losing his life , limb or
liberty
3) The damage to a mans property as where is forced to expend money in necessary charges
to acquit himself of the crime of which he is accused. The damage must also be the reasonable
and probable results of malicious prosecution and not too remote. In assessing damage the court
to some extent would have to consider9:

1) The nature of the offence the plaintiff was charged of

2) the inconvenience to which the plaintiff was charged to

3) monetary loss

4) The status and prosecution of the person prosecuted.

8
[1795] EngR 3039, (1795) 3 Salk 16, (1795) 91 ER 664 (B
9
http://law.jrank.org/pages/8407/Malicious-Prosecution.html, retrieved on 23rd april 2017
MODEL DRAFT NO. 1
In the Court of the Munsif of CIVIL COURT, PATNA

Suit No. of

SANJEEV KUMAR PLAINTIFF

R/O KANKARBAGH, ROAD NO.5

HOUSE NO.243, PATNA - 800001

RADHE SHAYAM Defendant

R/O BORING ROAD, NAGESHWAR COLONY

ROAD NO.2, PATNA -800003

The plaintiff above-named begs to state as follows:

1. That on the 13th of May, 2016, the defendant filed a complaint before the Magistrate of
PATNA charging the plaintiff with having burgled the defendants house.

2. That a warrant was, in consequence of the complaint, issued for the arrest of the plaintiff,
who was arrested and kept in the lock-up for a period or fifteen days.

3. That after a protracted trial on the said charge the plaintiff was acquitted on the 28 th of
May,2016, on the finding that the complaint was false.

4. That the defendant had made the complaint against the plaintiff maliciously and without a
reasonable or probable cause.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental
pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge.

Particulars of special damage:

Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 3000
Fee paid to his clerk Rs. 300

Expenses incurred in summoning three defence witnesses on two dates Rs. 500

Loss of business as a shop-keeper dealing in clothes Rs. 20000

Total Rs. 23800

6. That the cause of action for the suit arose on the 5th of May, 2016, viz., the date of acquittal.

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction
of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 24800.

Relief:
The plaintiff claims:

1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 23800 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

SANJEEV KUMAR

(PLAINTIFF)

MAHESH VERMA

Pleader.
MODEEL DRAFT NO.2

In the Court of the Magistrate of CIVIL COURT PATNA

Suit No. of

SIDDHARTH CHAUHANPLAINTIFF

R/O MITHAPUR, ROAD NO.5

HOUSE NO.24, PATNA - 800001

RADHE SHAYAM. Defendant

R/O FRAZER ROAD, AG COLONY

ROAD NO.2, PATNA -800003

The plaintiff above named begs to state as follows:

1. That the defendants father, namely chandrabhushan singh was killed by some misceants on
13th of May, 2016. The defendant made a report to the police station at shastri nagar police
station.(being FIR 546 Of 2016) wherein the defendant out of malice and without any
reasonable and probable cause included the plaintiff;s name as of the assailiants.

2. That the plaintiff was arrested on a charge under sec 302, IPC for the alleged murder of
defendents father on 16th may 2016 And remain in custody till 30th may 2016 when he was
acquitted by sessions judge suresh jha in sessions trial no 3546.of 2017 having been committed
for trial by the committing magistrate by his order. A copy of the order of the committing
magistrate dated 16th may 2016 as well as copy of the order of the sessions judge dated 30th
may 2016 are appended herewith. The prosecution of the plaintiffs accordingly terminated on
30th may 2016

3. That the defendant is guilty of malicious prosecution of the plaintiff and is bound to
compensate the plaintiff for the injury caused

I. To the reputation of the plaintiff;

 II. In respect of the incarceration in police and judicial lockups for a period of 15 days;

III. In respect of pecuniary loss incurred in defending the prosecution.

A schedule incorporating the sums due to the plaintiff from the defendant on the above
mention counts is appended herewith which forms the part of the plaint. The plaintiff
made a demand for the above sum of rupees 71500.from the defendant but the defendant
has not pay the same.

4. That the cause of action for the suit arose on the 30th of May, 2016, on the date of acquittal.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental
pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge

Particulars of special damage:

Fee paid to Sri ramakant jha, Pleader for defence Rs. 10000

Fee paid to his clerk Rs. 1000

Expenses incurred in summoning witnesses on two dates Rs. 500

Loss of business as a shop-keeper dealing in motorbikes Rs. 50000

Total Rs. 61500

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction
of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 71500.

Relief:
The plaintiff claims:
1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 61500 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

Siddharth chauhan

(PLAINTIFF)

SURESH VERMA

Pleader.
MODEL DRAFT NO. 3
IN THE HIGH COURT OF JUDICATURE AT PATNA

Suit No. of

SUBODH KUMAR APPELLENT

R/O AGAMKUA, CITY COLONY ROAD NO.5

HOUSE NO.43, PATNA - 800001

RADHE MOHAN RESPONDANT

R/O BORING ROAD, NEAR CHILDREN PARK

ROAD NO.2, PATNA -800003

The plaintiff above-named begs to state as follows:

1. That this first appeal is directed against the judgment and decree dated 30-10-2016 of the
District Judge,Patna

2. The facts leading to this appeal, briefly stated are that plaintiff appellant instituted a suit
for damages for malicious prosecution launched in a criminal case arising out of FIR No.
466/16 lodged by defendant at Police Station Kotwali (Bharatpur) on 22-9-16 for offence
punishable under Section 435,1. P. C. The case of the plaintiff as per the plaint is that aforesaid
FIR was totally false because the defendant had pressurised upon the police by adducing false
evidence which resulted in filing of challan against the plaintiff for offence under Section 435,
I. P. C. and for which he had to apply for anticipatory bail twice before the trial Court and once
before the High Court and whereupon he had incurred expenses for advocates fees, and the
launching of such false prosecution by the defendant culminated into acquittal in his favour
by Judgment dated 26-1-17 in Sessions Case No. 26/87. The plaintiff therefore pleaded that his
acquittal is the outcome of malicious prosecution which was launched by the defendant in
order to wreck vengeance which caused physical as well as mental agony for which he is
entitled to damages for such malicious prosecution by way of a decree for amount given later
in the draft against the defendant.
3. That after a protracted trial on the said charge the plaintiff was acquitted on the 26th of
jan,2017, on the finding that the complaint was false.

4. That the defendant had made the complaint against the plaintiff maliciously and without a
reasonable or probable cause.

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental
pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge.

Particulars of special damage:

Fee paid to Sri MAHESH VERMA, Pleader for defence Rs. 5000

Fee paid to his clerk Rs. 500

Expenses incurred in summoning three defence witnesses on two dates Rs. 1500

Loss of business as a shop-keeper dealing in clothes Rs. 50000

Total Rs. 57000

6. That the cause of action for the suit arose on the 26th of Jan, 2017, viz., the date of acquittal.

7. That the plaintiff was prosecuted in Patna and the defendant resides within the jurisdiction
of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 67000.

Relief:
The plaintiff claims:

1. Rs. 1,0000 as general damages for mental and bodily pain and loss of reputation.

2. Rs. 57000 as special damage.

3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

SUBODH KUMAR

(PLAINTIFF)

MAHESH VERMA

Pleader.
CONCLUSION
An action for damages brought by one against whom a civil suit or criminal proceeding has
been unsuccessfully commenced without PROBABLE CAUSE and for a purpose other than
that of bringing the alleged offender to justice.

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is
not limited to criminal prosecutions but may be brought in response to any baseless and
malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil
respondent in a baseless and malicious case may later file this claim in civil court against the
parties who took an active role in initiating or encouraging the original case. The defendant in
the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or
prosecutor in the original case becomes the defendant. In most states the claim must be filed
within a year after the end of the original case.

A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to
recover money damages for certain harm suffered. 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.

The public policy that supports the action for malicious prosecution is the discouragement
of VEXATIOUS LITIGATION. This policy must compete against one that favors the
freedom of law enforcement officers, judicial officers, and private citizens to participate and
assist in the administration of justice.

In most jurisdictions an action for malicious prosecution is governed by the COMMON LAW.
This means that the authority to bring the action lies in case law from the courts, not statutes
from the legislature. Most legislatures maintain some statutes that give certain
persons IMMUNITY from malicious prosecution for certain acts. In Colorado, for example, a
merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has
occurred, may detain and question the suspect without fear of liability for slander, false
arrest, FALSE IMPRISONMENT, unlawful detention, or malicious prosecution.

An action for malicious prosecution is distinct from an action for false arrest or false
imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest,
the proper remedy is an action for false arrest. If a person is confined against her or his will,
the proper remedy is an action for false imprisonment. An action for malicious prosecution is
appropriate only when the judicial system has been misused.
BIBLIOGRAPHY

1. http://law.jrank.org/pages/8407/Malicious-Prosecution.htm
2. http://www.alllaw.com/articles/nolo/personal-injury/lawsuits-malicious-prosecution-
abuse-process.html
3. http://www.legalindia.com/suit-for-damages-format/

CASES
1. Saville v. Roberts
2. Khagendra Nath v. Jacob Chandra
3. Mohammad Amin v. Jogendra Kumar Bannerjee
4. Gaya Prasad v Bhagat Singh