Saturday, 4 June 2022

Malicious Prosecution

                      Malicious Prosecution

According to the law of torts, ‘A judicial proceeding instituted by one person against another, from wrongful or improper motive and without proper cause to sustain it is a malicious prosecution’. It is a principle or definition which is laid down by the Court in the case of West Bengal State Electricity Board Vs. Dilip Kumar Ray. The essential ingredients which are required in this intentional tort are:

  1. There is a prosecution by the defendant in the Court- In this regard, it is important to understand here is that mere filing a complaint will not constitute as a prosecution. To hold that prosecution has happened, the plaintiff should show that the proceedings happened in the Court where he was charged with the unlawful or wrongful acts for which he is accused of.

  2. The plaintiff’s acquittal has happened- The plaintiff can only initiate the case of malicious prosecution when his acquittal has happened be it on any ground that is his innocence, merits or dismissal on technical defects. If the case is not over and still going on, he has no right to file. Also, he shouldn’t be found guilty or liable in the proceedings because in that case he may file for appeal but cannot bring a fresh legal suit of malicious prosecution. If he is acquitted in the appeal, then also he can bring a case of malicious prosecution.

  3. The prosecution has happened without a reasonable and probable cause- In order to bring a suit of malicious prosecution and maintainable in the Court, it must be proved that the defendant at the time of filing the case has not any reason to believe or consider that the plaintiff has done it. There is should be no actual apprehension of it. It was done without a reasonable and probable cause. 

  4. In the case which was brought, malicious intention should be present- To bring a case, it must be proved that the defendant’s case consisted of malice. Merely proving that it is filed without any reasonable and probable cause, malice will not be proved. It should be present that the defendant had ulterior motive in the prosecution he initiated which is not in furtherance of justice. Also, even if he is not acting with malice in the beginning, if he continues the case after he knows the innocence of the plaintiff, he will still be liable.

  5. The plaintiff must have suffered damages in some or the other kind- for the malicious prosecution suit to be maintainable, it must be present that the plaintiff suffered damages which can be fame or reputation or person or property. It can be anything. Also, it should not be remote in nature. It is the direct result of the prosecution which is brought by the defendant.

Therefore, as per Section 211 of the Indian Penal code, 1860 the person who has brought a legal suit in the court accusing another individual of wrongful or unlawful act with a malicious intention, the defendant can bring a fresh legal suit of malicious prosecution after his acquittal. It is important to punish that person because not only he has brought damage to the plaintiff’s reputation and property but also took precious time of the justices which could be used for solving the genuine cases.


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