Malicious Prosecution

Proceedings instituted maliciously may also encompass now no longer best malicious prosecution and malicious arrest however additionally malicious financial disaster and liquidation intending (civil lawsuits), malicious execution of system in opposition to property, and malicious search. Malicious prosecution is the malicious purpose of unsuccessful crook or financial disaster or liquidation lawsuits in opposition to every other with out affordable or probably purpose. Generally, it may be stated that the malicious prosecution is described as a judicial intending instituted via way of means of one man or woman in opposition to every other, from wrongful or incorrect motive, with none affordable and probably purpose to justify it.

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Court defined the term “malicious prosecution” in the following words:-

A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution.

The Court in the same case laid down the distinction between “an action for malicious prosecution” and “an action for abuse of process” in the following words:-

A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to affect the improper use of a regularly issued process.


Following are the essential elements which the plaintiff is required to prove in a suit for damages for malicious prosecution:-

  • Prosecution by the defendant.
  • Absence of reasonable and probable cause.
  • Defendant acted maliciously.
  • Termination of proceedings in the favour of the plaintiff.
  • Plaintiff suffered damage as a result of the prosecution.

Malicious civil proceedings

In the case of Darbhangi Thakur v. Mahabir Prasad, it was held that unlike malicious criminal prosecution, no action can be brought, as a general rule, in the case of civil proceedings even though the same are malicious and have been brought without any reasonable cause.

In the case of Genu Ganapati v. Bhalchand Jivraj, it was held that following are the essentials to establish malicious abuse of civil proceedings:-

  • Malice must be proved.
  • The plaintiff must allege and prove that the defendant acted without reasonable and probable clause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.
  • The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such civil proceedings have affected or likely to affect his reputation.


It can be said that the malicious proceedings are that proceedings which are initiated with malicious intent. The elements (i.e. prosecution by the defendant, absence of reasonable and probable cause, defendant acted maliciously, termination of proceedings in the favour of the plaintiff and plaintiff suffered damage as a result of the prosecution) which are necessary to the plaintiff to prove in a suit for damages for malicious prosecution must be fulfilled. However, on the basis the facts and circumstances, the Court should decide whether the suit is filed maliciously or not.



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