Friday, November 8, 2013

Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.8

MALICIOUS PROSECUTION

1.    INTRODUCTION

                                Malicious prosecution is an unsuccessful prosecution of one person, with malice and without reasonable cause. It is actionable on proof of damage. The action of plaintiff under Malicious prosecution would be dismissed of he fails to prove damage from his malicious prosecution.

2.    MEANING
                                                      It means an unsuccessful institution of criminal or involving
Proceedings against a person maliciously without probable cause.


3.    DEFINITION

                                  Tort of malicious prosecution is defined as filing a criminal case of one person against another person with malice and without reasonable and probable cause.

4.       TORT OF MALICIOUS PROSECUTION IS AN EXCEPTION TO GENERAL RULE

                                     Tort of malicious prosecution is an exception to the general rule that malicious is not relevant tortuous liability under law of tort.

5.       KINDS OF MALICIOUS PROSECUTION
Malicious prosecution has followed kinds.
i.        Malicious criminal procedure
ii.      Malicious civil procedure.
iii.    Malicious arrest.
iv.    Maintenance and champerty.
6.       CASE LAW
Abrath vs. North Eastern Railway 1883
According to this case “w” a passenger suffered some injuries in accident on a train operated by defendant NER. Northern eastern railway. Plaintiff dr. Abrath gave certificate to ‘w’ prescribing symptoms of his injuries as grievous nature. On this certificate ‘w’ claimed damages from defendant. The defendant relying upon the certificate of the plaintiff paid compensation to ‘w’ out side the court. The amount of compensation was distributed equally between plaintiff and ‘w’. Thereafter information was laid before that they had been defrauded by conspiracy between plaintiff and ‘w’ because injuries suffered by ‘w’ were of simple nature. The defendants prosecute the plaintiff but the prosecution was dismissed because of lack of sufficient evidence. On dismissal criminal prosecution, plaintiff filed suit for malicious prosecution. The defendant pleaded that, the legal advice by their law department was reasonable and probable cause for defendant to prosecute the plaintiff. The court accepted the plea of defendant and dismissed the suit for malicious prosecution by holding that plaintiff had failed to prove his prosecution by defendant was without reasonable and probable cause.
7.       BURDEN ON PROVE
                                   The burden of prove for malicious prosecution is on the plaintiff.

8.       PRE REQISITE OF MAILICIOUS PROSECUTION                    
                                 In order to succeed in this action for malicious prosecution in the civil court, the plaintiff must establish and prove the following pre-requisite.

I.       PROSECUTION
                                    The prosecution shall be deemed to have been instituted by the defendant when he makes a complaint to the Magistrate or where making a false report he misled the police for malicious prosecution. The term malicious prosecution is not confined to prosecution under ‘criminal law’. It is used in wider sense and includes the following prosecution.
i.        Prosecution under criminal law.
ii.      Malicious prosecution for insolvency.
iii.    Malicious execution of property.
iv.    Malicious proceeding in family court.

II.   TERMINETION OF PROCEEDING IN FAVOUR OF PLAINTIFF

                                         It is pre-requisite to an action for malicious prosecution that termination of prosecution of plaintiff in his favour. It need not be on merits of case. It would be sufficient if prosecution is dismissed for any technical reason.
                    III MALICE
                                      Prosecution of plaintiff by defendant must be proved to be malicious. A prosecution which is done in good faith Is not malicious prosecution.

IV. ABSENCE OF REASONABLE AND PROBABLE CAUSE
                                    The plaintiff must prove that there was absence of reasonable and probable cause for prosecution launched by the defendant against him.
V.    DAMAGE
                                  The plaintiff must prove that he has suffered damage. Damage may be classified onto the following kinds.
(a)            Damage to man’s fame
(b)           Damage done to person
(c)            Damage to man’s property

9.        CONCLUSION


                              To conclude I can say that malicious prosecution is a tort which consists of instituting certain kinds of legal proceeding against another person maliciously and without reasonable and probable cause. It is wider than in the criminal law.

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