By Sudipta Bhowmick, KIIT School of Law, Bhubaneswar.

Before you embark on a journey of revenge, dig two graves.


According to Jurist Blackstones “every man is entitled to have his reputation preserved inviolate”. A man’s reputation is his sacred property. Reputation depends on opinion, and opinion is the main basis of communication of thoughts and Information amongst humans. In simpler words, reputation is nothing but enjoyment of good opinion on the part of others. Hence, the right to have reputation involves right to have reputation inviolate or intact.1 And, malicious prosecution brings scratches to one’s this reputation and he tries to balance the scale by filing suit against the former complainant.

Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause.2 It is an abuse of process of law for personal interest.  This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons.3



In an action of malicious prosecution the plaintiff must prove the following:

  1. he was prosecuted by the defendant,

  2. the prosecution ended in his favour,

  3. reasonable and probable cause lacked in prosecution case,

  4. malice was present in defendant’s action,

  5. plaintiff suffered damage to his reputation or to the safety of person, or to security of his property.

Prosecution by the defendant:

This essential ingredient requires the proof of two elements:

  1. That there was “prosecution” and

  2. The same was instituted by the defendant.


It should be a criminal prosecution rather than a civil action. Prosecution means criminal proceedings against a person in a court of law. A prosecution is there when a complaint is made before a Judicial Officer, or when a FIR has been lodged before a Police Officer. “To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question.”4 In a suit for malicious prosecution, it was held that mere police proceedings are not the same thing as prosecution5; the Judicial Officer should have taken the cognizance in the matter.

Prosecution should be initiated by the defendant:

A prosecutor is a man who is actively instrumental in pursuing the law in force for prosecuting another. Although, criminal proceeding are conducted in the name of the State, but for the purpose of malicious prosecution, a prosecutor is the person who instigates the proceedings.6

The proper test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution; rather the test is whether such proceedings have reached a stage at which damage to the plaintiff results.7 A mere presentation of complaint to a magistrate who dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually resulted.8

Favourable termination of prosecution:

The plaintiff must prove that the prosecution terminated in his favour. He has no legal right to sue the defendant while it is pending. The termination may be by an acquittal on the merits, or by a dismissal of the complaint for technical defects or for non-prosecution.9 There can be no action if the plaintiff had been convicted, even if the conviction was later appealed.10 The law does not regard the above principle in today’s scenario. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.

Lack of Reasonable and probable cause:

In Hicks v Faulkner11, Hawkins J. defined reasonable and probable cause as “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily 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”. It was stated that the test contains a subjective as well as an objective element. There must be both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances.


Malice for the purposes of malicious prosecution means having any other motive apart from that of bringing an offender to justice. Anger and revenge may be proper motives if channelled into the criminal justice system. The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice.12 The settled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. It is for the plaintiff to prove that there was an existence of malice i.e. the Burden of Proof lies upon the plaintiff.13


In Saville v. Roberts14, Halt C.J. classified damage for the purpose of this tort as of 3 kinds, which are:

  1. A person’s fame (i.e. his character)

  2. Safety of his person

  3. Security of his property by reason of his expense in repelling an unjust charge

The damage must also be the reasonable and probable results of malicious prosecution and not too remote. In assessing damage, the Court to some extent would have to consider:

  1. the nature of the offence the plaintiff was charged with,

  2. the inconvenience caused to the plaintiff because of such charge,

  3. monetary loss and

  4. the status of the person prosecuted.


The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance supplanted it. The gap was filled by an action on the case which appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts15. But in a recent case of Sheldon Appel Co. v. Albert & Oliker16, a unanimous California Supreme Court observed by declining to expand the tort of malicious prosecution that “while the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded.”

1 Defamation: its civil and criminal liability, available at



4 Dhauji Shaw Rattanji v. Bombay Municipality AI.R 1945 Bom. 320

5 Nagendra Nath Ray v. Basanta Das Bairagya, I.L.R. (1929) 47 Cal. 25

6 Balbhaddar  v. Badri  Sah , the Priviy Council, A.I.R. 1926 P.C. 46

7 Mohammad Amin v. Jogendra Kumar Bannerjee, (1947) 49 BOMLR 584



10 Reynolds v. Kennedy (1748) 1 Wils 232

11 1878 8 QBD 167 171, approved and adopted by the House of Lords in Herniman v Smith 1938 AC 305 316 per Lord Atkin.


13 Allen v. Flood [1898] AC 1

14 1899) 1 Raym 374

15 Id.

16 47 Cal. 3d 863, 873 (1989)