Torts 2nd Trimester

8/18/2019 Torts 2nd Trimester

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National Law Institute University

Bhopal

ProjectOn

MALICIOUS PROSECUTION

Submitted to Submitted by

Dr. Rajiv Kumar Khare Deepak kaneriya


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proessor !"#! B.$.LL.B

%&Contents

• Statement o problem '''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

• Introdu(tion.''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

• )hat is mali(ious *rose(ution+''''''''''''''''''''''''''''''''''''''''''''''''''

• )hat is *rose(ution+''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

•

,ommen(ement o *rose(ution'''''''''''''''''''''''''''''''''''''''''''''''''• -ssentials o mali(ious prose(ution'''''''''''''''''''''''''''''''''''''''''''''

• *rose(ution by the deendant.''''''''''''''''''''''''''''''''''''''''''''''''''''

• )ant o Reasonable and *robable ,ause.'''''''''''''''''''''''''''''''''''''

• he plainti must show the proo o mali(e.'''''''''''''''''''''''''''''''''

• ermination o pro(eedin/s in avour o the plainti.''''''''''''''''''''''

• *lainti needs to have suered dama/e.''''''''''''''''''''''''''''''''''''''

• Re(ent (ase

• ,on(lusion.''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

• Biblio/raphy.----------------------------------------------------


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Statement of problem

I have made a (riti(al study o the tort 01$LI,I2US *R2S-,UI2N3 and tried to

understand it as an instrument o abuse o le/al pro(ess. I (hose this topi( or my proje(t

be(ause mali(ious prose(ution4 bein/ a tort whi(h needs mali(e as an essential element makes

interestin/ study.

Introduction


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his proje(t deals with the study o the tort o 1ali(ious prose(ution. I a person iles a

(riminal (omplaint a/ainst a person whom he knows to be inno(ent and then allows the

(riminal pro(eedin/s to take pla(e or to (ontinue4 without inormin/ the State o the other

person5s inno(en(e4 the tort o mali(ious prose(ution is said to be (ommitted.

It takes into a((ount the essentials whi(h are re6uired to make a parti(ular a(t4 an a(t o

1ali(ious prose(ution.

his proje(t is an honest attempt to analy7e the position o 1ali(ious prose(ution as a tort

and its impa(t on the law and le/al system and as to how the law has molded itsel a((ordin/

to the dierent (ases that has (ome beore it. It be(omes obvious rom the dierent (ases4

whi(h have been dealt with in this proje(t. his proje(t also takes into a((ount the intri(a(ies

involved with this parti(ular aspe(t o law and tries to answer them as ar as possible.

Malicious prosecution

1ali(ious prose(ution (onsists in institutin/ unsu((essul (riminal pro(eedin/s mali(iously

and without reasonable and probable (ause. )hen su(h prose(ution (ause a(tual dama/e to

the party prose(uted4 it is a tort or whi(h he (an brin/ an a(tion.


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he law authori7es persons to brin/ (riminals to justi(e by institutin/ pro(eedin/s

a/ainst them. I this authority is misused by somebody by wron/ully settin/ the law in

motion or improper purpose4 the law dis(oura/es the same. o prevent alse a((usations

a/ainst inno(ent person4 an a(tion or mali(ious prose(ution is permitted.

0In an a(tion or mali(ious prose(ution4 the plainti has to prove 4 irst that he was

inno(ent and his inno(en(e was pronoun(ed by the tribunal beore whi(h the a((usation was

made8 se(ondly4 that there was want o reasonable and probable (ause or the prose(ution4 or4

as it may be otherwise stated 4 that the (ir(umstan(es o the (ase were su(h as to be in the

eyes o the jud/e in(onsistent with the e9isten(e o reasonable and probable (ause8 and lastly4

that the pro(eedin/s o whi(h he (omplains were imitated in a mali(ious spirit that is rom an

indire(t and improper motive4 and in urtheran(e o justi(e.3

Prosecution

he word :prose(ution5 means pro(eedin/s in a (ourt o law (har/in/ a person with a (rime.

It in(ludes4 in India4 a pro(eedin/ beore a ma/istrate under the prevention se(tion o the

(ode o (riminal pro(edure or (ompellin/ a person to /ive se(urity or keepin/ the pea(e or

or /ood behavior4 on the 6uestion whether there is a prose(ution o a person beore pro(ess

is issued (allin/ upon him to deend himsel4 there was a (onli(t o authority in the ;i/h

,ourts. 2ne view was that a prose(ution was be/in only when pro(ess was issued and there

(ould be no a(tion when a ma/istrate dismissed a (omplaint under s !"


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(riminal pro(edure. he other view was that a prose(ution (ommen(ed as soon as a (har/e

was made beore a (ourt and beore pro(ess was issued to the a((used.

In a re(ent $ndhra *radesh (ase it has been held that the test as to whether a pro(eedin/ is a

prose(ution under the ,ode o ,riminal *ro(edure is to see whether noti(es have been issued

to the plainti and in a(t whether he was asked to show (ause a/ainst the proposed a(tion.

In Nagendra Nath Ray v. Basanta Das Bairagya4 ater a thet had been (ommitted in the

deendant5s house4 he inormed the poli(e that he suspe(ted the plainti or the same.

hereupon the plainti was arrested by the poli(e but was subse6uently dis(har/ed by the

ma/istrate as the inal poli(e report showed that there was no eviden(e (onne(tin/ the

plainti with the thet. In suit or mali(ious prose(ution4 it was held that it was not

maintainable be(ause there was no prose(ution at all as mere poli(e pro(eedin/s are not the

same thin/ as prose(ution.

Commencement of Prosecution

he prose(ution is not deemed to have (ommen(ed beore a person is summoned to answer a

(omplaint. In khagendra nath v. Jabob chandra4 there was a mere lod/in/ o ejahar alle/in/

that the plainti wron/ully took away the bullo(k (art belon/in/ to the deendant and

re6uested that somethin/ should be done. he plainti was neither arrested nor prose(uted. It

was held that merely brin/in/ the matter beore the e9e(utive authority did not amount to

prose(ution and4 thereore4 the a(tion or mali(ious prose(ution (ould not be maintained.

here is no (ommen(ement o the prose(ution when a ma/istrate issues only a noti(e and not

a summons to the a((used on re(eivin/ a (omplaint o deamation and subse6uently

dismisses it ater hearin/ both the parties.


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ESSENTIALS O MALICIOUS PROSECUTION

!" Prosecution s#ould be instituted b$ t#e defendant%

$ prose(utor is a man who is a(tively instrumental in puttin/ the law in or(e or prose(utin/

another. $lthou/h (riminal pro(eedin/s are (ondu(ted in the name o the state but or the

purpose o mali(ious prose(ution4 a prose(utor is the person who insti/ates the pro(eedin/s.

In Balbhaddar v. Badri sah, the *rivy ,oun(il said4 0In any (ountry where4 as in India4

prose(ution is not private4 an a(tion or mali(ious prose(ution In the most literal sense o the

word (ould not be raised a/ainst any private individual. But /ivin/ inormation to the

authorities that naturally leads to prose(ution is just the same thin/. $nd i that is done and

trouble (aused4 an a(tion will lie.3

$ person (annot be deemed to be a prose(utor be(ause he /ave inormation o some

oen(e to the poli(e. he mere /ivin/ o inormation4 even thou/h it was alse4 to the poli(e

(an not /ive (ause o a(tion to the plainti in a suit or mali(ious prose(ution i he =the

deendant> is not proved to be the real prose(utor by establishin/ that he was takin/ a(tive

part in the prose(ution4 and that he was primarily and dire(tly responsible or prose(ution. In


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Dattatraya Pandurang Datar v. Hari keshav4 the deendant lod/ed a irst inormation report

to the poli(e re/ardin/ the thet at his shop namin/ the plainti4 his servant4 as bein/

suspe(ted or thet. $ter the (ase was re/istered4 the poli(e started the investi/ation4 the

plainti was arrested and remanded by a ma/istrate4 to poli(e (ustody. 2n investi/ation4 the

poli(e (ould not ind sui(ient eviden(e a/ainst the plainti and at the instan(e o the poli(e4

the bail bond was (an(elled and the a((used4 i.e.4 the plainti in the instant (ase4 was

dis(har/ed. here ater4 the plainti sued the deendant or mali(ious prose(ution. It was held

that the essential element or su(h an a(tion that the plainti had been prose(uted by the

deendant (ould not be established. he deendant had done nothin/ more than /ivin/

inormation to the poli(e and it is the poli(e who a(ted thereater. he deendant (ould not be

deemed to be the prose(utor o the plainti.

!> Absence of reasonable and probable cause

he plainti has also to prove that the deendant prose(uted him without reasonable and

probable (ause. Reasonable and probable (ause has been deined as 0an honest belie in the

/uilt o the a((used upon a ull (onvi(tion4 ounded upon reasonable /rounds4 o thee9isten(e o (ir(umstan(es4 whi(h assumin/ them to be true would reasonably lead any

ordinarily prudent man pla(ed in the position o the a((used to the (on(lusion that the person

(har/ed was probably /uilt o the (rime imputed.3 here is reasonable and probable (ause

when the deendant has sui(ient /rounds or thinkin/ that the plainti was probably /uilt o

the (rime imputed. he prose(utor need not be (onvi(ted as to the /uilt or maintainability o

the (riminal pro(eedin/s beore he iles the (omplaint4 but he may only be satisied that there

is a proper (ase to approa(h the (ourt. hus4 neither mere suspi(ion is enou/h nor has the

prose(utor to show that he believed in the probability o the (onvi(tion.

In Wyatt v. White4 the deendant4 a miller4 noti(ed on the plainti5s whar a number o his

sa(ks4 some new whi(h bore his mark and others old rom whi(h the mark had been (ut o.

Believin/ the sa(ks to be his own4 the deendant (har/ed the plainti or thet beore the

ma/istrate. he plainti was a(6uitted and then he sued the deendant or mali(ious

prose(ution. It was held that sin(e some o the sa(ks observed by the deendant were new4 the

deendant had reasonable and probable (ause and was4 thereore4 not liable.


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&" Malice

It is also or the plainti to prove that the deendant a(ted mali(iously in prose(utin/ him4

that is there was mali(e o some indire(t and ille/itimate motive in the prose(utor4 that is the

primary purpose was somethin/ other than to brin/ the law into ee(t. It means that the

deendant is a(tuated not with the intention into ee(t4 but with an intention whi(h was

wron/ul in point o a(t. :mali(e5 means the presen(e o some improper and wron/ul motive

that is to say4 an intent to use the le/al pro(ess in 6uestion or some other than its le/ally

appointed or appropriate purpose.

the prose(ution must have been laun(hed with an obli6ue motive only with a view to harass

the plainti. It means a wish to injure the plainti rather than to vindi(ate the law.

In Kamta Prasad u!ta v. National Building "onstruction "o!rn. #td . he oi(er o the

respondent (orporation ound (ertain arti(les missin/ while preparin/ inventory and (he(kin/

up with the sto(k re/ister. he plainti was prose(uted under S.?"@4 I.*.,4 but was /iven the

beneit o doubt and a(6uitted. he plainti brou/ht an a(tion or mali(ious prose(ution. he

plainti (ould not prove that he had been harassed by the oi(ers. here was held to be

reasonable and probable (ause or prose(ution o the plainti4 and the a(t that the plainti was not harassed indi(ated that there was no mali(e4 and hen(e the plaintis a(tion or

mali(ious prose(ution ailed.

'" Termination of proceedin( in fa)our of t#e plaintiff

I the plainti was (onvi(ted by the (ourt then he (annot4 obviously4 (laim mali(ious

prose(ution be(ause even the (ourt thou/ht he was /uilty4 implyin/ thereore that the

prose(ution was justiied and not mali(ious.

It is also essential that the prose(ution terminated

in avour o the plainti. I the plainti has been (onvi(ted by a (ourt4 he (annot brin/ an

a(tion or mali(ious prose(ution4 even thou/h he (an prove his inno(en(e and also that the

a((usation was mali(ious and unounded.

ermination in avour o the plainti does not mean judi(ial determination o his inno(en(e8

it means absen(e o judi(ial determination o his /uilt. he pro(eedin/s are deemed to have


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terminated in avour o the plainti when they do not terminate a/ainst him. hus4 the

pro(eedin/s terminate in avour o the plainti i he has been a(6uitted on te(hni(ality4

(onvi(tion has been 6uashed4 or the prose(ution has been dis(ontinued4 or the a((used is

dis(har/ed.

I the prose(ution results in (onvi(tion at the at the lover level but the (onvi(tion is reversed

in appeal4 the 6uestion whi(h arises isA

Can an action for malicious prosecution be brought in such a case?

In Reynolds v. Kennedy, it has been held that the ori/inal (onvi(tion was a bar to an a(tion

or mali(ious prose(ution and subse6uent reversal o (onvi(tion4 an appeal was no ee(t.

his position does not appear to be (orre(t in view o subse6uent de(ision. hus4 i on

appeal4 the pro(eedin/s terminate in avour o the plainti4 he has a (ause o a(tion.

> *AMA+E

It has also to be proved that the plainti has suered dama/e as a (onse6uen(e o the

prose(ution (omplained o the prose(ution (omplained o. -ven thou/h the pro(eedin/sterminate in avour o the plainti4 he may have suered dama/e as a result o the

prose(ution Dama/e is the /ist o the a(tion and in $ohammed %mmin v. Jogendra Kumar,

the *rivy ,oun(il said8

0o ind an a(tion or dama/es or mali(ious prose(ution based upon (riminal pro(eedin/s4

the test is not whether the (riminal pro(eedin/s ha(e rea(hed a sta/e at whi(h they may be

(orre(tly des(ribed as a prose(ution8 the test is whether su(h pro(eedin/s have rea(hed the

sta/e at whi(h dama/e to the plainti results. heir Lordships are not prepared to /o as ar as

some o the (ourts in India in sayin/ the mere representation o a alse (omplaint whi(h irst

seeks to se the (riminal law in mktion will per se ound an a(tion or dama/es or mali(ious

prose(ution.3

In Wi&&en v. Bailey Rom&ort '.D." 4 the plainti havin/

ailed to (omply with its noti(e re6uirin/ him to (lean the walls o some rooms in his house

was prose(uted by the deendants4 and on a(6uittal4 he sued or mali(ious prose(ution. It was


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held that there was no /round or a(tion4 sin(e the ailure o the prose(ution did not dama/e

his reputation.

Recent case$ppellantsA ,anti #a . ,anti *e)i/ 0ife of 1#a(2an Lal #a/ 1#a(2an Lal #a/ Son

of Late 1almu3und #a/ Pratima/ *4o% 1#a(2an Lal #a and Poonam *e)i . Poonam

#a/ *4o% 1#a5an Lal #a/ 04o% Ra(#)endra Nara$an #a

6s%

RespondentA State of 1i#ar and Rac#na #a/ *4o% 1i#ari #a/ 04o% Santos# #a

Respondent iled a ,ompliant a/ainst the a((used'*etitioners named above dis(losin/

therein that her husband4 Santosh Kumar Cha had (ontested last Bihar $ssembly -le((tion

rom 1adhepur $ssembly Seat as a party (andidate o Lok Canshakti. ;er husband sent her

alon/ with her dau/hter4 Karnika a/ed about '& years and a son a/ed about ? years on ?th

Canuary !"" to her 1aika or arran/in/ Rs. "4"""'. $ter (ompletion o ele(tion4 on #%th

Eebruary !"" *etitioners'a((used Kanti Cha F Kanti Devi and Bha/wan Lal Cha (ame and

took away her both (hildren to *atna on the prete9t o providin/ edu(ation and sin(e

thereater they both are missin/. hen it has been submitted that she had telephoni(

(onversation with her (hildren or !'< days but sin(e thereater they both are missin/. She

had served an advo(ate noti(e4 however4 without any response. Eurther had dis(losed that her

husband is in (ustody in (onne(tion with hen4 she had dis(losed that whenever she insisted

or return o her (hildren4 *etitioner' a((used4 Kanti Cha4 Bha/wan Lal Cha and *ratima asked

or puttin/ her si/nature over divor(e paper as well as also demanded ransom o Rs. to !

la(s.

De(ision' a((ordin/ to learned jud/e'

Indian *enal ,ode whi(h reads as ollowsA

Kidnappin/ rom lawul /uardianship.' )hoever takes or enti(es any minor underGsi9teenH

years o a/e i a male4 or under Gei/hteenHyears o a/e i a emale4 or any person o unsound


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mind4 out o the keepin/ o the lawul /uardian o su(h minor or person o unsound mind4

without the (onsent o su(h /uardian4 is said to kidnap su(h minor or person rom lawul

/uardianship.

-9planation.' he words lawul /uardian in this se(tion in(lude any person lawully

entrusted with the (are or (ustody o su(h minor or other person.

-9(eption.' his se(tion does not e9tend to the a(t o any person who in /ood aith believes

himsel to be the ather o an ille/itimate (hild4 or who in /ood aith believes himsel to be

entitled to the lawul (ustody o su(h (hild4 unless su(h a(t is (ommitted or an immoral or

unlawul purpose.

his e9(eption /imps the a(t so alle/ed (ommitted by the a((used out o (reel4 when the said

a(t does not dis(lose to have been (ommitted or an immoral or unlawul purpose while

removin/ the vi(tim even under illusion o bein/ entitled to have lawul (ustody over vi(tim.

he (hild is /ettin/ /ood edu(ational a(ility at renowned s(hool provided by their ather and

urther makin/ No. (omplaint o any sort durin/ the (ourse o their physi(al presen(e beore

the ;onble ,ourt4 makes the alle/ation on its a(e sket(hy as well as its ori/ination under

malicious prosecution apart rom urther supported with penden(y o /uardianship case.

. In the aoresaid a(tual aspe(t subsistin/ on re(ord4 there happens to be ull appli(ation o

prin(iple enun(iated by the ;onble Supreme ,ourt in Bhajan Lal =supra> case as a result o

whi(h4 the order impu/ned is 6uashed. ,onse6uent thereupon4 the petition is allowed.

Conclusion


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It is obviously a /rievan(e that an individual that an individual should be harassed by le/al

pro(eedin/s improperly instituted a/ainst him. he tort o mali(ious prose(ution unlike

others re6uires the element of malice or bad intention as its ne(essary element.

I a person iles a (riminal (omplaint a/ainst a person whom he knows to be inno(ent

and then allows the (riminal pro(eedin/s to take pla(e or to (ontinue4 without inormin/ the

State o the other person5s inno(en(e4 the tort o mali(ious prose(ution is said to be

(ommitted. -ssentially this tort prevents people rom deliberately harassin/ others by abusin/

the le/al pro(ess.

his tort I eel needs not only a theoreti(al but also an empiri(al study to know a

proper understandin/ o the (ourt5s trends in handlin/ su(h (ases.

I would also like to su//est that the deendant i proved to be liable should not only be

liable or dama/es but be /iven a stri(t punishment as le/al pro(ess is a rame work in whi(h

justi(e should be met to all. A person 2#o tries to misuse t#is must be se)erel$ punis#ed

so t#at it ser)es as a deterrent effect%

he tort o mali(ious prose(ution is dominated by the problem o balan(in/ two

(ountervailin/ interests o hi/h so(ial importan(eA

• Sae/uardin/ the individual rom bein/ harassed by unjustiiable liti/ation.

• $nd4 en(oura/in/ (iti7ens to aid in law e. nor(ement

1iblio(rap#$


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