Author: Ayushi Kumari (The ICFAI University, Dehradun)


Malicious prosecution and arrest, as well as malicious bankruptcy and liquidation procedures (civil proceedings), malicious execution of process against property, and malicious search, are all examples of malicious processes. The malicious aim of unsuccessful criminal, bankruptcy, or liquidation actions against someone without reasonable or probable grounds is known as malicious prosecution. In general, a malicious prosecution is described as a court process brought by one person against another with an unlawful or inappropriate purpose and for which there is no reasonable and probable grounds.

 The phrase “malicious prosecution” was defined by the Court in the case of West Bengal State Electricity Board v. Dilip Kumar Ray as follows:

“A malicious prosecution is a court procedure brought by one person against another with an unlawful or inappropriate purpose and without reasonable cause to support it.” In the same instance, the Court defined the difference between “an action for malicious prosecution” and “an action for abuse of process” as follows:

“A malicious prosecution entails deliberately inducing process to be issued, whereas an abuse of process entails the use of legal process for a purpose other than that for which it was intended by law to prevent the inappropriate use of a regularly issued process.”

In a malicious prosecution case, the plaintiff must show that:

1) He was wrongfully persecuted by the defendant.

2) That the action in question was dismissed in favor of the current plaintiff.

3) That the charges were brought against you without any just or reasonable grounds.

4) That the prosecution was brought with a malevolent aim, i.e., not with the only intent of enforcing the law, but with an intention that was unlawful.

5) That he was damaged in terms of his reputation, personal safety, or property security.


In an action for damages for malicious prosecution, the plaintiff must establish the following essential elements: –

  • Prosecution by the defendant.
  • Termination of the prosecution in the plaintiff’s favor
  • Absence of reasonable and probable cause.
  • Malice
  • Damages
1. Prosecution by the defendant

The plaintiff must establish that he (plaintiff) was prosecuted by the defendant as the first necessary element in a claim for damages for malicious prosecution. The term “prosecution” refers to more than just a trial; it also refers to criminal processes that are appealed or revised. In the case of Musa Yakum v. Manilal, it was decided that the defendant’s failure to start the prosecution on a Court’s order is no justification if the Court was prompted to issue the order by the defendant’s false evidence.

The Court decided in Khagendra Nath v. Jacob Chandra that just presenting the matter before the executive authorities did not constitute prosecution, and so the malicious prosecution suit could not be pursued. It’s worth noting that a departmental investigation by a disciplinary body isn’t the same as a prosecution.

2. Termination of the prosecution in the plaintiff’s favor

The plaintiff must show that his case was successfully prosecuted. He has no right to sue before the case is settled or while it is still pending. The complaint may be dismissed for technical faults or non-prosecution, or it may be acquitted on the merits and a judgement of his innocence. If he is convicted, however, he would be denied the right to suit and will be denied the opportunity to prove that he was wrongfully convicted. In that situation, his sole option is to appeal the conviction. If the appeal is successful, he has the right to sue for malicious prosecution. The plaintiff does not need to show his innocence as a separate issue.

3. Absence of a reasonable and probable cause

The plaintiff must additionally establish that the defendant persecuted him without reasonable and probable cause in order to recover damages for malicious prosecution. In a malicious prosecution case, the issue of a lack of reasonable and probable cause should be evaluated based on all of the facts in the case. In Antara Jami Sharma v. Padma Bewa, the court held that the plaintiff bears the burden of proving the lack of a reasonable and probable clause in a case of damages for malicious prosecution.

 It doesn’t matter if there was reasonable and probable cause if the prosecutor didn’t know about it. The withdrawal of a prosecution or the acquittal of an accused person does not imply the absence of reasonable and probable cause. If a guy wants an indictment with many accusations, some of which have probable cause and others do not, his responsibility for malicious prosecution is total.

4. Malice

Malice, in the context of malicious prosecution, refers to any motivation other than bringing an offender to justice. Malice can be defined by a combination of venom and malice, although it is not required. Malice refers to the presence of an additional and improper motivation, i.e., the use of the legal process for a goal other than that which is legally prescribed and suitable. If directed via the criminal justice system, rage and retribution may be appropriate motivations. The absence of objective and reasonable cause is not proof of malice, but the absence of honest belief is. In Allen v. Flood, the House of Lords established a general rule that an act that is lawful in and of itself does not become unlawful because of the actor’s poor motivations, and several of their lordships argued that malicious prosecution was not an exception to this rule. Malice is the substance of the action for malicious prosecution and must be proven by the plaintiff in the first instance, according to the established procedure. The plaintiff bears the burden of proving the presence of malice, i.e. the plaintiff bears the burden of proof.

Evidence of malice

Previous stains relations, irrational or inappropriate actions like as publicizing the charge or fabricating evidence can all be used to show malice. Though carelessness is not proof of malice in and of itself, irrational behavior such as haste, recklessness, or a failure to establish inquiries might be. When there is no other plausible explanation for the defendant’s lack of trust in the truth of his accusation, it is conclusive proof of malice. The opposite is not true, because a person might be motivated by malice while maintaining a reasonable conviction in the truth of his case. There might be malice in starting a prosecution or prolonging one that was started honestly.

5. Damages

Another aspect that the plaintiff must establish in an action for damages for malicious prosecution is that the plaintiff incurred injury as a result of the prosecution. The plaintiff might so seek damages on the following three counts in a prosecution action.

  • Damages to the plaintiff’s person,
  • Damages to the plaintiff’s reputation,
  • Damages to the plaintiff’s property.


The reason stated is that such a case does not inevitably and naturally include injury to the person sued, therefore an action will not lie for deliberately and without reasonable and probable cause initiating suit. The fraudulent civil action will be dismissed during the hearing. All imputations against the defendant’s reputation will be removed, and he will be granted costs against the opponent. Damages for mental anguish or additional expenditures incurred above those imposed on failed parties are not covered by the law.


Malicious proceedings can be defined as those that are started with the intention of causing harm. The elements that the plaintiff must prove in a suit for damages for malicious prosecution (i.e., prosecution by the defendant, absence of reasonable and probable cause, defendant acted maliciously, termination of proceedings in favor of the plaintiff, and plaintiff suffered damage as a result of the prosecution) must be met. However, the Court should assess whether the complaint was filed maliciously or not based on the facts and circumstances.