Monday, 31 January 2022





Malicious prosecution involves carrying out unsuccessful criminal proceedings maliciously and without a reasonable and justifiable cause. When such a prosecution causes actual damage to the arty prosecuted, it is a tort for which he can bring an action. In the normal course of events, criminals and other wrongdoers are to be brought to justice through the institution of proceedings as provided by law. The law, however, forbids the misuse of this power of the institution of proceedings by wrongfully setting the law in motion for improper purposes. To prevent false and frivolous cases against innocent persons brought only in order to harass or annoy, an action for malicious prosecution is permitted. The term prosecution is not only limited to the stage of trial but also includes further stages such as appeal and revision. 

 A discussion on malicious prosecution involves two cases. The first case is where the plaintiff with a malicious intention prosecutes a person ( an accused in that case). In the second case, where one who was the accused in the first case will file a case for the tort of malicious prosecution against the person who prosecuted him maliciously ( this person was the prosecutor in the first case). therefore, in the second case, which is filed to seek reedy in tort law for malicious prosecution, the one who was the prosecutor in the first case becomes the defendant and the one who was accused would be the plaintiff. The tort of malicious prosecution requires an element of bad intention on the part f prosecutor and may lead to a tort claim as an action in criminal law. In order to succeed in a suit for damages for malicious prosecution, the plaintiff has to prove some essential conditions. 

The first condition to be satisfied for malicious prosecution is that there was a prosecution; and that the same was instituted by the defendant or on the complaint of the defendant. Prosecution means criminal proceedings against a person in a court of law. A prosecution arises when a criminal charge is made before a judicial officer or tribunal. 

The plaintiff has to prove that the defendant prosecuted him without reasonable and probable cause. If the prosecutor had honestly believed that the accused is likely to have caused the alleged wrongdoing, and therefore started proceedings, he cannot be said to have done so maliciously. However, before a prosecution is started, the defendant should have some feelings or thoughts that the plaintiff is guilty. However, if there is no such belief a tort of malicious prosecution will arise as a legal process has been instituted with full knowledge of the plaintiff’s innocence. 

The plaintiff needs to prove that the defendant acted maliciously in prosecuting him i.e. proceedings were initiated with an evil intention. The evil intention must be established. If one uses available legal resources in good faith, however wrongly, that does not amount to malicious prosecution.  

The proceedings complained should be terminated in favor of the present plaintiff which means, before a case of malicious prosecution can be filed, the prosecution must be terminated in favor of the accused of the cause of action for a tort of malicious prosecution to arise. If the prosecution succeeds, or if the allegations are found to be true, there is o way a claim for malicious prosecution can stand. 

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