What is malicious prosecution? This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. This was an outcome of the misuse of due procedure of law, in the 18th and 19th century in England. ACTIO DE PAUPERIE. An example of malicious prosecution includes a police officer charging and prosecuting a person without any real evidence and for a purpose other than the proper use of the criminal law. Thus, the aggrieved person can claim compensation for the infringement of his rights under the law of torts. The defendant then filed a suit of malicious prosecution against the plaintiff. 22 (2nd Ed. [19] Hicks v Faulkner (1878) 8 Q.B.D. The statute of limitations for filing a malicious prosecution action in Oklahoma is 1 year. Speak with an Attorney about Malicious Prosecution Claims. Whether Mr Wood will be able to prove his case is yet to be determined, and the case is expected to commence in February next year. The Elements of a Malicious Prosecution Claim. However, societal changes played a major role in this evolution. But some states require some direct interference with, or injury to, the plaintiff apart from the mere hassle of answering a civil complaint. Deterrence is created amongst people against instituting malicious litigation. Malicious prosecution and abuse of process are related types of civil lawsuits where one person (the plaintiff) sues another person (the defendant) for, in a prior case, trying to use the legal system against the plaintiff in an inappropriate manner. Essentials of malicious prosecution and Indian courts, Favourable termination of the prosecution, Defences available to malicious prosecution claims, Distinction between Malicious Prosecution and False Imprisonment, Law of Torts; Notes, Case Laws And Study Material, Study Material for LLB, LLM, Judiciary and Entrance Exams, Relevancy of Motive in Tortious Liability, Essentials of the Law of Torts | Explained, Mechanisms For Settlement Of Industrial Disputes, International Mediation Training Program | Jagran Lakecity University, JOB: Joint General Manager [Legal] at IRFC-Indian Railway Finance Corporation | Apply before 14 Jan. LL.M. The prior case can be either criminal or civil in nature. [27] Salmond, Jurisprudence, at p.374 (1966). Malicious Prosecution-Definition. IF DAMAGES RESULT FROM A PERSON'S EXERCISE OF A RIGHT, IT IS DAMNUM ABSQUE INJURIA. [33] Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. Malicious Prosecution Author: Monazza Sajid, Symbiosis Law School, NOIDA What is the definition of Malicious Prosecution? False imprisonment on the other hand is a … – The damage done to a person as to where man is put to a danger of losing his life, limb or liberty. One view was that a prosecution began only when the process was issued and there could be no action when a magistrate dismissed a complaint under Section 203 of the code of criminal procedure. Actual damages will vary from case to case and depending on your jurisdiction. For example, mental suffering is usually considered an element of general damages in a claim based on malicious criminal prosecution, with no special proof required. Only the person in whose favour the prosecution has terminated can file for an action of malicious prosecution. The history of the tort can be traced back to the writ of conspiracy, as early as the reign of Edward I. English courts were concerned about the improper use of judicial proceedings as early as the 10th century. It is extremely difficult to infer spite from the conduct of a person. It has to be proved that the plaintiff has suffered damages as a result of the prosecution. “In this jurisdiction, the term ‘malicious prosecution’ has been defined as an action for damages brought by one against whom a criminal prosecution, civil suit or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or other proceeding in favor of the defendant therein.” A mere presentation of complaint to a magistrate who dismissed it on the ground that it disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. 1970 Orissa 91 at p. 100. The proceeding went on over three years. | Last updated December 06, 2018. Malice can be proved by evidence of the conduct and declarations. Another important contribution to the menace of unjust prosecution to the English law has been the introduction of the office of the public prosecutor. Hawkin’s defined ‘reasonable and probable cause’ as, ‘‘An honest belief in the guilt of an accused based upon…reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’’[19]. We recommend using The damages may not necessarily be pecuniary. This definition was approved by the House of Lords in Herniman v. Smith[20]. [13]. For the institution of the malicious proceeding, it is essential that plaintiff should prove that he was falsely prosecuted by the defendant without any reasonable and probable cause and the defendant has malafide intention to cause damage to plaintiff. We focus on this civil action as it relates to false criminal proceedings. A claim of malicious prosecution is a tort action. Conversely, if a conviction stands, then the claimant will fail in an action for malicious prosecution. The recent case of Willers v Joyce has broadened the long-established boundaries of the tort of malicious prosecution. 189, p.194. Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of process against property, and malicious search. Thus, a victim of this entire chain of prosecution will be in a position to avail the remedy of malicious prosecution. The other view was that a prosecution commenced as soon as a charge was made before the court and before the process was issued to the accused. Malicious Prosecution. [25] Raja Braja Sunder Singh Deb v. Ramdeb Das Pattanaik, AIR 1944 P.C. Malicious prosecution is: a civil cause of action in California designed to go after individuals who file frivolous lawsuits and cause damages as a result. This article discusses the elements of a malicious prosecution or abuse of process claim. [28] Nurse v. Rustomji, AIR 1924 Mad. For the purposes of malicious prosecution, a criminal charge may include ‘all indictments involving either scandal to reputation or the possible loss of liberty to the person.’ The tort also extends to certain forms of abuse of civil process. 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. But, because of the improper personal motives of the complainant, at times, if an innocent person is hauled up before a court of law, it may result in imprisonment or pecuniary loss to him. In order to effectively understand the tort of malicious prosecution, it is necessary to study every ingredient which it is comprised of. ACTIO DE PASTU. 13 at p. 14, [16] 3 C. Ambalam v Jagannatha, AIR 1959 Mad. [29] Mitchell v. Jenkins (1833) 5 B & Ad. Therefore, it is essential to note that not only the actual prosecutor is liable. [18] Girja Prasad Sharma v. Umashanker Pathak, AIR 1973 MP 79 at p. 82. Malicious prosecution has its origin in England and evolved in the 18th and 19th century. The main difference between claims based on criminal and civil actions has to do with evidence. In a malicious prosecution case, the Plaintiff must prove the four elements as articulated in Nelles v. Ontario, [1989] 2 S.C.R. To understand when prosecution begins, reference may be made to Madan Mohan Singh v. Bhrigunath Singh[14]. Malicious prosecution is an institution of proceeding by a person against someone who has initiated a malicious proceeding against him in order to cause him harm and damage. [34] Gilchrist v. Gardner, (1891) 12 N.S.W. Being sued in a similarly malicious manner can also take its toll on one's emotional well-being. Defending against bogus criminal charges can be a traumatic experience for anyone, particularly if those charges were filed with malice. Generally, in order for a person to succeed in the action of malicious prosecution… [24] The concept of malice, is differentiated from the concept of lack of reasonable and probable cause. 588. The emotional pain usually is more pronounced if the claim is in response to malicious criminal charges, since the plaintiff may have spent time in jail or otherwise detained or treated as a criminal. But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. In Glinski v. McIver,[7]Viscount Simonds had held that the plaintiff in order to succeed has to prove the following essentials. [30] Mitchell v. Williams, (1843) 11 M&W. 2003 Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780. It is often seen that the entire machinery of the police, witnesses and even the court staff are hands in glove with the prosecutor. A county prosecutor runs for mayor and loses the election. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. It was held that 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. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “a proceeding in a court of law charging a person with a crime”. There was a conflict on the question of whether there is a prosecution of a person before the process, is issued, calling upon him to defend himself. This is the most important criterion. ‘Malicious Prosecution’ means “a prosecution on a charge of crime, which is willful, wanton or reckless or against the prosecutor’s sense of duty and right.”. Generally, any malicious criminal proceeding that lacks probable cause -- regardless of whether the claimant was tried or even indicted -- may give rise to a malicious prosecution claim. The action or the remedy of malicious prosecution has long been recognised in American law. A suit for malicious prosecution will succeed if the claimant can prove that there was an absence of reasonable and probable cause for the prosecution by the defendant. The term ‘Malice’ in common parlance means ill-will against a person. Even the malicious issuance of a search warrant without probable cause may trigger such a claim. The English writers[8] on the whole seem to endorse the four essentials laid down by Viscount Simonds viz.. [8] Salmond, Torts, at p.720 (1961): Winfield, Tort, at p.575 (1967); [10] Major Gian Singh v. SP Batra, AIR 1973 (P&H) 400 at p. 408. It will be for the plaintiff to prove that the damage actually resulted. Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money. PERSONS. Hence, the law has recognised a right in such person to get damages from the person responsible for his prosecution. If you believe you were criminally charged or sued for reasons other than the quest for justice, speak with a personal injury attorney today. For the initiation of malicious prosecution, the plaintiff should be acquitted by the c… It starts with the evolution of the tort of malicious prosecution, goes into and explains the various essential ingredients of malicious prosecution with extracts from relevant case laws and finally touches upon the defences available for malicious prosecution. Walker Morris has reported previously on the 2016 Supreme Court case of Willers v Joyce, which [4] John T. Ryan, Jr., Note. The primary aim of this concept is to protect every person from mindless and vengeful litigation, be it civil or criminal. It acknowledges not just the importance of a person’s reputation, but also the trauma every person has to suffer while dealing with any litigation and the consequent losses thereto. 565: 46 MLJ 353. [11] Halsbury’s Laws of England, Vol. ADMINISTRATION OF ESTATES. An honest belief by defendant in the guilt of the plaintiff. They are. These two concepts, though talk about violation of certain fundamental rights of a person, do differ primarily on certain aspects. Ramaswami, J. has stated the law as below: “The settled law in India is that the defendant is liable as prosecutor, if he filed a complaint himself or through his agent or advocate or, if the prosecution was by the police of the State, at his instance and on his information.”[16]. Based on the above-stated definition, the following conjectures can be arrived at: In Glinski v. Melver[21] it was stated that reasonable and probable cause means “that there must be cause for thinking that the plaintiff was probably guilty of the crime imputed.”. In India, the law on the subject is exactly the same as the law in England and the U.S.A.”. It cannot be limited only to the process which starts from the formal act of taking cognizance by the Court. In other words, your criminal prosecution had to have been initiated primarily for the purpose other than bringing you to justice. Mere circumstances of suspicion cannot be said to be reasonable and probable cause.[23]. In either case, the plaintiff may claim compensatory and sometimes punitive damages. By Dyson Hore-Lacy SC. The court defined the term ‘Malicious prosecution’ in the case of West Bengal State Electricity Board v. Dilip Kumar Ray. ©PARKER MILLS LLP 2014 800 W. 6th Street, Suite 500, Los Angeles, CA 90017-2704 | Main (213) 622-4441 | Fax (213) 622-1444 | www.parkermillsllp.com MALICIOUS PROSECUTION HANDBOOK¤ By David B. Parker & William K. Mills Such actions are referred to as malicious prosecution, whether it's an unscrupulous prosecutor filing false charges against a political rival or a corporation suing a small business in order to put the competition out of business. Wash. L. Rev. ... FOR THE LAW COULD NOT HAVE MEANT TO IMPOSE A PENALTY ON THE RIGHT TO LITIGATE. For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by libel or slander. The kinds of malicious mischief and its penalties are provided in Articles 328, 329 and 330 of the Revised Penal Code, to wit: “Article 328. Being the subject of a malicious prosecution can cause a wide range of injuries, whether it's from unsubstantiated criminal charges or a bogus civil claim. Plaintiffs also may claim a damaged reputation, loss of future earning potential, attorney fees, court fees. When a plaintiff is successful in his case, damages for malicious prosecution may be substantial. So is the view of Bhagwati, J. : “No action for malicious prosecution or for any other malicious proceeding which involves a judicial decision of any question at issue between the parties will lie, until or unless the prosecution or other proceeding has been terminated in favour of the person complaining of it. In addition, the plaintiff may be awarded compensation for damage to his reputation, and pain and suffering. Depending on the circumstances, the court may even order the defendant to pay punitive damages. A suit for malicious prosecution seeks to recover damages incurred as a result of a previous criminal or civil lawsuit which was unsuccessful, and was brought without probable cause, and for a malicious purpose (such as, to harass or annoy, rather than to seek a judicial determination of the claim). The plaintiff must prove the following (as summarised by the High Court in Beckett): 320. According to the court, it was “ajudicial proceeding instituted by one person against another, from wrongful or improper motive […] This site uses Akismet to reduce spam. Since prosecutors have considerable discretion over which cases are pursued and private citizens are free to file lawsuits, this tort provides an essential check on potential abuses. Interestingly, malicious prosecution has been an entrenched part of common law for many centuries. 1218. In either case, the plaintiff may claim compensatory and sometimes punitive damages. The Supreme Court has reiterated the principle in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[26]as, “Malicious Prosecution – Malice. Any statement made by a defendant in the course of an investigation, which suggests the names of prosecution witnesses that have been examined, cannot be construed to mean that he influenced the institution of a case against the said witnesses.[18]. Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause.Generally… The existence of a reasonable or probable cause for the prosecution of the plaintiff can serve as a complete defence. As the name suggests, malicious prosecution involves legal action being taken against a defendant in order to deliberately cause harm – rather than on reasonable grounds. Reasonable and probable cause must be such, as would operate on the mind of a discreet and reasonable man; ‘malice’ and ‘want of reasonable and probable cause’ have reference to the state of the defendant’s mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.”, Malice has been identified to include wrong or indirect motive, but a prosecution cannot be labelled as malicious if it is only inspired by anger. The mental stress and agony, the loss of reputation, loss of livelihood and earning, the costs of defending the prosecution, the physical hardships etc. The intentional "dignitary" tort of malicious prosecution may be brought by someone against whom a criminal or civil action has proceeded without probable cause and with malicious intent. ACTIONABLE WRONG. In such a social scenario, it is the need of the hour to address this issue. In malicious prosecution, the plaintiff has to prove the following essentials. It has been held that the ambit of ‘prosecution’ cannot be extended to the mere filing of a complaint before the police. To justify a suit for malicious prosecution, the plaintiff has to prove that the prosecution was instituted by the defendant due to a malicious intention. Thus, however wrong-headed a prosecutor maybe, if he honestly and genuinely believes that the accused is guilty of a criminal offence, there cannot be initiation of malicious prosecution proceedings.[25]. Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause. This compensation may not get back his reputation, although, it acts as exemplary damage and has the ability to prevent/ reduce such malicious prosecution. The plaintiff in an action for malicious prosecution can recover money from the defendant for certain harms suffered. Your email address will not be published. It is unnecessary for the plaintiff to prove his innocence as a separate issue. Malicious Prosecution . i.e. The same was reiterated by the Hon’ble Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh[2]. Pension benefits. However, Section 320[12] of the Code must be kept in mind while analysing the definition of ‘prosecution’, to ensure that a wider context is given to the same. 89, [17] Badduri Chandra Reddy v Pammi Rami Reddy, (1954) 2 M.L.J. However, occasionally criminal charges or civil lawsuits are maliciously filed in order to intimidate, harass, defame, or otherwise injure the other party. This case, which leapfrogged directly from the High Co… [6] Dinsman v Wilkes, 53 U.S. (12 How.) It is essential for the claimant to show that the prosecution ended in his favour, or the proceedings eventually are discontinued. The term ‘malice,’ as used in the expression “malicious prosecution” is not to be considered in the sense of ill-spite or hatred against an individual, but of malus animus, and as denoting that, the party is actuated by improper and indirect motives. Otherwise, providing unsworn false information is no worse than a class 1 misdemeanor. Disablement pension. [24] West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976. The email address cannot be subscribed. Previously available only in relation to criminal claims, this case now offers a brand new cause of action for a defendant who has suffered as a result of the malicious prosecution of civilproceedings against it, for which there was no reasonable and probable cause. Malice can be best proven by portraying the wrong motive or by indicating that the circumstances of the case were such that the only causation factor of the prosecution was some wrong or indirect motive of the prosecutor. Hence, it is immaterial, how the termination came about; whether by the decision of the court or by the discontinuance of prosecution or by some technical defect or want of prosecution. The name of this civil wrongdoing may seem misleading because it doesn’t have anything to do with Prosecutor/District Attorney or the State. It is an established rule that in order for malicious prosecution to prosper, the following requisites must be proven by petitioner: (1) the fact of prosecution and the further fact that the defendant (respondent) was himself the prosecutor, and that the action finally terminated with an acquittal; (2) that in bringing the action, the prosecutor acted without probable cause; and (3) that the prosecutor was actuated or … The basic evolution of the law has taken place in England. 167 at p. 168. He stated that, “The tort was initially applied to criminal proceedings; to cases where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he was not guilty.”[6]. The penalty for the crime of malicious mischief shall depend upon the value and the kind of the property damaged. The six elements of this claim are as follows: Being the subject of a malicious prosecution can cause a wide range of injuries, whether it's from unsubstantiated criminal charges or a bogus civil claim. In the said case, when a person who was remanded to jail custody for almost 40 days on a charge of dacoity, although ultimately no cognizance was taken of the offence, the Judges held that there was “prosecution” for the purpose of an action for malicious prosecution. Malice may be proved either by showing that the motive was, and that it can be wrong, or by showing that the circumstances were such that the prosecution can be only accounted for by imputing wrong or indirect motive to the prosecutor[30]. Begin typing to search, use arrow keys to navigate, use enter to select, Please enter a legal issue and/or a location. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court. These shortcomings are in the form of numerous defences that can be availed in a suit of malicious prosecution. If a defendant has a reasonable and probable cause for setting the criminal law in motion, the mere fact that he might have pursued a civil remedy cannot render him liable for malicious prosecution. All rights reserved. Even the Supreme Court of India has said that Right to Reputation is part and parcel of Right to Life and Personal Liberty guaranteed by the Constitution of India[1]. The test appears to be, as to whether there was reasonable and probable cause for any discreet man to make the charge, complained of. The Supreme Court has observed that there is a rising trend amongst the women to file malicious cases under Sec. Further, this helps the court save its time from wasting on such frivolous litigations and eventually the number of cases in court drops down since only the real legal disputes remain, thereby reducing the pendency of cases in courts. The court observed: “Merely because the plaintiff came to be acquitted or discharged by the criminal court as the prosecution failed to prove the case beyond doubt as is required in criminal law, does not mean that such acquittal or discharge could necessarily boomerang upon the defendant as a case for malicious prosecution.”. 167, at p.171, [22] Darshan Pandey v. Ghaghu Pandey, AIR 1948 Pat. Rather, it has to do with the individual who brought the false charges against the criminal defendant. are not accounted for; and the victim of malicious litigation has no legal recourse to protect himself against such abuse of the process of law. [5] W.Page Keeton et al., Prosser and Keeton on the Law of Torts, 5th Ed., (1984) (providing overview of malicious prosecution in American Tort law and its extension to malicious civil claims); cf. Malicious Prosecution In one case, we defended a client who was sued for damages based on the theory of malicious prosecution. in Savile v. Roberts[35] refers to three types of damages which the plaintiff must prove to have suffered to maintain an action for malicious prosecution. "Malicious prosecution" is a tort which is actionable through the civil courts. Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. So long as proceedings are pending, no action lies on the ground that they have been wrongfully instituted. 776, 778 (1996). This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit. ... PENALTY CLAUSE See CONTRACT (Penalty) PENSIONS. Lack of reasonable and probable cause is to be understood objectively; it does not connect the subjective attitude of the accuser. Discovery is the legal process to seek information, deposition testimony, documents, and other evidence from the opposing side in a case. Internet Explorer 11 is no longer supported. Stay up-to-date with how the law affects your life, Name Even the present provisions of law which vaguely talk about malicious prosecution and punishment thereto, do not consider the violation of fundamental rights like the right to life & liberty, right to reputation, right to work, etc. There are five ingredients to the tort of malicious prosecution, namely: All the above-mentioned conditions must co-exist before a plaintiff can succeed.[10]. In India, when a person is prosecuted by the criminal justice system or is put through civil litigation, all he can do is defend himself. The prosecutor becomes obsessed with the idea that the businessman caused him to lose the election. It will also suffice if the order is quashed on its appeal, which leads to the acquittal of the claimant. What is malicious prosecution? The institution or continuation of a civil or criminal legal proceeding against the plaintiff; By, or abetted by, the defendant (the prosecutor or plaintiff in the malicious action); Termination of the prior proceeding in favor of the plaintiff (for instance, the case was dismissed); Absence of probable cause for instituting the prior proceeding; Malice as the primary purpose for the prior action; and. If the plaintiff has been able to prove monetary damages, such as lost wages, or loss of employment, attorneys fees paid in defense of the claim, and other costs, he may be awarded the full amount proven. Artificial person. Criminal and civil cases that lack sufficient evidence usually aren't pursued. That he acted without reasonable and probable cause. Microsoft Edge. Malicious prosecution is a common law intentional tort.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 favor of the victim of the malicious prosecution. The law of malicious prosecution has evolved generously through ages. In India, where fundamental rights are protected with all its vigour, it is about time that the law of malicious prosecution is also granted constitutional status. In the case of malicious prosecution, the, In malicious prosecution, it is necessary to show that the proceeding was without any. Can file for an action for malicious prosecution damages for seduction or breach of promise of marriage is 1.... V. Umashanker Pathak, AIR 2007 SC 976 discretion or the proceedings terminate in favour of the prosecutor... 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