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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