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. It has to be proved that the plaintiff has suffered damages as a result of the prosecution. Your email address will not be published. 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]. Microsoft Edge. [24] The concept of malice, is differentiated from the concept of lack of reasonable and probable cause. In a malicious prosecution case, the Plaintiff must prove the four elements as articulated in Nelles v. Ontario, [1989] 2 S.C.R. Sahib v. Hasan Ghani[9], it was held that, “The action for malicious prosecution is part of the common law of England. 1970 Orissa 91 at p. 100. [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. 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. 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. [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. 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. [3]. Lack of reasonable and probable cause is to be understood objectively; it does not connect the subjective attitude of the accuser. MALICIOUS PROSECUTION. 390, 402 (1851). What is malicious prosecution? In malicious prosecution, the plaintiff has to prove the following essentials. Chief Justice Taney also mentioned the tort’s extension to maliciously initiated civil cases. Search, Amended Complaint for Negligence and Wrongful Death, Complaint for Personal Injury - Slip and Fall, Negligence and Personal Injury Questionnaire, Emotional Distress, Privacy, and Dignitary Torts. 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. The action or the remedy of malicious prosecution has long been recognised in American law. Otherwise, providing unsworn false information is no worse than a class 1 misdemeanor. For example, defamation resulting from a malicious lawsuit, such as lost business from a damaged reputation, typically would be considered a compensable injury. Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse? This site uses Akismet to reduce spam. To understand when prosecution begins, reference may be made to Madan Mohan Singh v. Bhrigunath Singh[14]. In Saville v. Unless the proceedings instituted are terminated in his favour, the plaintiff cannot initiate a suit for malicious prosecution. But some states require some direct interference with, or injury to, the plaintiff apart from the mere hassle of answering a civil complaint. Reasonable grounds of the existence of a state of circumstances; Assuming those circumstances to be true, whether a reasonable man placed in the position of the defendant would have come to the conclusion that the accused might be guilty; And the defendant must have an honest belief in the guilt of the plaintiff. The concept of malicious prosecution plays an important role in the protection of a man’s reputation. 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. Note, Groundless Litigation and Malicious Prosecution Debate: A historical analysis, 88 Yale L.J. [23] Kapoor Chand & Rikhi Ram Mahajan v. Hakim Jagdish Chand Sripat Rai, AIR 1974 (P&H) 215 at p. 218. – The damage done to a person as to where man is put to a danger of losing his life, limb or liberty. It will also suffice if the order is quashed on its appeal, which leads to the acquittal of the claimant. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Contact a qualified personal injury attorney to make sure your rights are protected. 89, [17] Badduri Chandra Reddy v Pammi Rami Reddy, (1954) 2 M.L.J. If the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. 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. The Supreme Court while deciding a case observed that instances of police machinery filing malicious charges is increasing day by day, and such cops should be punished. ADMINISTRATION OF ESTATES. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. Disablement pension. 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. Discovery is the legal process to seek information, deposition testimony, documents, and other evidence from the opposing side in a case. Accounts. By Dyson Hore-Lacy SC. The plaintiff in an action for malicious prosecution can recover money from the defendant for certain harms suffered. The court defined the term ‘Malicious prosecution’ in the case of West Bengal State Electricity Board v. Dilip Kumar Ray. 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. 776, 778 (1996). In those days, England witnessed a trend of misuse of the judicial process, especially criminal prosecutions for personal spite. Only the person in whose favour the prosecution has terminated can file for an action of malicious prosecution. The basic evolution of the law has taken place in England. Often while considering malicious prosecution, the ill-effects it has, on the fundamental rights of the aggrieved person, are totally ignored. Stay up-to-date with how the law affects your life, Name All rights reserved. The existence of a reasonable or probable cause for the prosecution of the plaintiff can serve as a complete defence. 13 at p. 14, [16] 3 C. Ambalam v Jagannatha, AIR 1959 Mad. What is malicious prosecution? [34] The threshold to maintain a suit for malicious prosecution is undoubtedly high, as all of the aforementioned requisites have to be met to ensure success in the suit. It is extremely difficult to infer spite from the conduct of a person. In such a social scenario, it is the need of the hour to address this issue. Making malicious prosecution, a tort is useful in the following ways: [1] Deepak Bajaj v. State of Maharashtra and Ors, AIR 2009 SC 628. [18] Girja Prasad Sharma v. Umashanker Pathak, AIR 1973 MP 79 at p. 82. “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.” 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]. Actual damages will vary from case to case and depending on your jurisdiction. i.e. 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. Deterrence is created amongst people against instituting malicious litigation. 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]. [24] West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976. 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. Malicious prosecution denotes a civil or criminal lawsuit filed against you without sufficient evidence or for an improper cause, such as harassing you or ruining your reputation. 1218. The name of this civil wrongdoing may seem misleading because it doesn’t have anything to do with Prosecutor/District Attorney or the State. 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]. This is the most important criterion. Malice may be proved by previously stained relations, unreasonable and improper conduct like advertising the charge or getting up false evidence. Law, p. 184. It is essential for the claimant to show that the prosecution ended in his favour, or the proceedings eventually are discontinued. 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]. 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. Thus, a victim of this entire chain of prosecution will be in a position to avail the remedy of malicious prosecution. According to the court, it was “ajudicial proceeding instituted by one person against another, from wrongful or improper motive […] Also, witnesses play a crucial part in such maliciously instituted proceedings. 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. 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. [11] Halsbury’s Laws of England, Vol. [27] Malice includes any other improper purpose motivating the prosecutor, such as, to gain a private collateral advantage[28], and an indirect motive, that is, some motive other than a desire to vindicate public justice, or private right.[29]. 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. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Your email address will not be published. A combination of malice and lack of reasonable and probable cause is essential to prove cause of action. ACTIO DE PASTU. If the appeal results in his favour then he can sue for malicious prosecution. Typical injuries include loss of reputation and credit, humiliation, and mental suffering. 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. [22] The Plaintiff must also prove that the facts and circumstances of the case at the time of the offence were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause. It has been held that the ambit of ‘prosecution’ cannot be extended to the mere filing of a complaint before the police. Rather, it has to do with the individual who brought the false charges against the criminal defendant. Favourable termination does not signify that the plaintiff is innocent, or he has been acquitted, but that he has not been convicted. Thus, the aggrieved person can claim compensation for the infringement of his rights under the law of torts. 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. Interestingly, malicious prosecution has been an entrenched part of common law for many centuries. ACCOMPLICE. Action against (POLICE) 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. They are. 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.”. The nature of the offence the plaintiff was charged of. [31] Jogendra Garababu v. Lingaraj Patra, AIR. When a plaintiff is successful in his case, damages for malicious prosecution may be substantial. So long as proceedings are pending, no action lies on the ground that they have been wrongfully instituted. 167, at p.171, [22] Darshan Pandey v. Ghaghu Pandey, AIR 1948 Pat. It is a rule of law that no one should be allowed to allege, of a still-pending suit as that is unjust.”[33]. It is necessary to add detailed legal provisions that act as an effective deterrent for such vexatious and malicious litigation and compensates the people for their loss of reputation, earnings, livelihood, and the trauma. In addition, just the uncertainty and fear of entering a criminal trial is often enough to convince a jury that the malicious act caused severe emotional distress. False imprisonment on the other hand is a … In S.T. A claim of malicious prosecution is a tort action. [4] In its contours of development, the tort has grown to provide protection and remedy to those who have been wronged by an abuse of the judicial process. Malicious Prosecution. ©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 "Malicious prosecution" is a tort which is actionable through the civil 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.”. When the prosecution is the discretion or the act of the officers of the law. Reasonable suspicion that the plaintiff committed the alleged crime for which he was prosecuted. 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. 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. Malicious Prosecution . The difficulties proving your case mean that you need the right evidence, which means you need an attorney skilled in taking discovery. 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. This was an outcome of the misuse of due procedure of law, in the 18th and 19th century in England. It is also known as “abuse of process”, that is, abuse of process of law for personal interest. 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. But Arizona does not have a criminal statute for malicious prosecution. 565: 46 MLJ 353. Malice is an element that can be established by inference from circumstances and cannot be proved by direct evidence. Holt C.J. Most states allow recovery for claims based on civil suits as long as the plaintiff (the defendant in the original case) is able to prove malicious intent and lack of probable cause. 3. The Supreme Court has observed that there is a rising trend amongst the women to file malicious cases under Sec. Internet Explorer 11 is no longer supported. This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Malicious Prosecution-Definition. 64 Geo. Compensatory damages consist of both the actual damages that were a direct result of the malicious prosecution (which may include pain and suffering and other non-monetary injuries), and special damages that identify quantifiable monetary losses - such as lost earnings, additional domestic costs such as childcare, etc.). The person who is aggrieved by malicious prosecution, his various rights are trampled upon by having to face the unnecessary and malicious litigation, his right to reputation is totally destroyed considering the social stigma attached to prosecution in our country, especially if it involves the arrest of a person. Being sued in a similarly malicious manner can also take its toll on one's emotional well-being. However, occasionally criminal charges or civil lawsuits are maliciously filed in order to intimidate, harass, defame, or otherwise injure the other party. 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. 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. ACTIONABLE WRONG. Injury or damage to the plaintiff as a result of the prior action. Defending against bogus criminal charges can be a traumatic experience for anyone, particularly if those charges were filed with malice. There are various types of defences that can be taken when one is charged with a claim of malicious prosecution, such as: However, not all of these defences can be foolproof in their bare form. Conversely, if a conviction stands, then the claimant will fail in an action for malicious prosecution. That the prosecution ended in his favour; That the prosecution lacked reasonable and probable cause; The proceedings must have been instituted, or continued by the defendant; He must have acted, without reasonable and probable cause; The proceedings must have been unsuccessful. 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. He believes that a local businessman who is active in politics played a large role in sabotaging his campaign. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court. A dignitary tort is one in which the plaintiff claims injury to his or her human dignity, a category that also includes infliction of emotional distress and abuse of process. For the initiation of malicious prosecution, the plaintiff should be acquitted by the c… Therefore, it is essential to note that not only the actual prosecutor is liable. 2. Definition: Malicious prosecution is the malicious institution against another of unsuccessful criminal or bankruptcy or liquidation proceeding without reasonable and probable cause. Malicious prosecution is a civil action where a person (the plaintiff) can claim redress where a malicious prosecution was initiated or continued by the defendant (usually the state) without reasonable or probable cause. The prior case can be either criminal or civil in nature. In Ram Lal v. Mahendra Singh[32], the son of Ram Lal committed suicide for which Ram Lal has filed a criminal complaint against the defendant that he was the reason behind his son’s death. However, societal changes played a major role in this evolution. Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause.Generally… Wash. L. Rev. 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. 167 at p. 168. Visit our professional site », Created by FindLaw's team of legal writers and editors When some questions come up about the businessman mixing business and politics, the prosecutor grabs the opportunity to accuse and charge the man with attempting to bribe public officials. 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. | Last updated December 06, 2018. The term ‘Malice’ in common parlance means ill-will against a person. Generally, in order for a person to succeed in the action of malicious prosecution… 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. 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. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Copyright © 2020, Thomson Reuters. At times, you can be sued as the scapegoat in a genuine personal injury when you had little to do with it. 170 at 192 to 193: There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution: a) the proceedings must have been initiated by the defendant; [34] Gilchrist v. Gardner, (1891) 12 N.S.W. TO SUE OR NOT TO SUE? In Glinski v. McIver,[7]Viscount Simonds had held that the plaintiff in order to succeed has to prove the following essentials. [25] Raja Braja Sunder Singh Deb v. Ramdeb Das Pattanaik, AIR 1944 P.C. 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. The main difference between claims based on criminal and civil actions has to do with evidence. America has made the laws against malicious prosecution, to act as effective deterrents against crime and protector of people’s right, but it has gone ahead and given it the status of a federal remedy. ‘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.”. 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. IF DAMAGES RESULT FROM A PERSON'S EXERCISE OF A RIGHT, IT IS DAMNUM ABSQUE INJURIA. In order to prove this cause of action, the plaintiff (the injured party) is required to prove certain elements. The plaintiff must prove that the prosecution was instituted against him, without any reasonable and probable cause, and that it was instituted with a malicious intention, which was wrongful in point of fact. 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). Firefox, or But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages. Malicious Prosecution. The damages may not necessarily be pecuniary. To get punitive damages in a malicious prosecution case where the facts are based upon a criminal prosecution, requires evidence of “actual malice” or “malice in fact,” and not merely “legal malice.”. An honest belief by defendant in the guilt of the plaintiff. In other words, your criminal prosecution had to have been initiated primarily for the purpose other than bringing you to justice. [33] Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. This case, which leapfrogged directly from the High Co… This article deals with the various aspects of malicious prosecution. 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. The proper test was indicated by the Privy Council in Mohammad Amin v. Jogendra Kumar Bannerjee[15]. In assessing the damage the court to some extent would have to consider: Since the tort of malicious prosecution includes the mental element (malice, reasonable and probable cause) which needs to be proved, there are certain shortcomings. 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]. 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. Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. This compensation may not get back his reputation, although, it acts as exemplary damage and has the ability to prevent/ reduce such malicious 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. 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 has its origin in England and evolved in the 18th and 19th century. Malice means, narrowly, a prosecution inspired by some motive of which the law disapproves. In India, the law on the subject is exactly the same as the law in England and the U.S.A.”. 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 … 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. For the efficient working of the criminal administration of Justice, the law expects every citizen to bring criminals to the courts of justice. [13]. This definition was approved by the House of Lords in Herniman v. Smith[20]. 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. These two concepts, though talk about violation of certain fundamental rights of a person, do differ primarily on certain aspects. In Corporate & Financial Law – To Pursue Or Not To? Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. The recent case of Willers v Joyce has broadened the long-established boundaries of the tort of malicious prosecution. V. Bhrigunath Singh [ 14 ] does not have a criminal statute for malicious prosecution has its origin in.... Tort ’ s extension to maliciously initiated civil cases that lack sufficient evidence are... Hand is a tort which is actionable through the civil courts is essentially the same as the scapegoat in suit! 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