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. The defendant then filed a suit of malicious prosecution against the plaintiff. 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. Reputation is considered to be the most important facet of any person’s life. His only remedy, in that case, is to appeal against the conviction. In either case, the plaintiff may claim compensatory and sometimes punitive damages. 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. In malicious prosecution, the plaintiff has to prove the following essentials. There must be a valid prosecution made by the defendant against the claimant. Malice may be proved either by showing that the motive was, and that it can be wrong, or by showing that the circumstances were such that the prosecution can be only accounted for by imputing wrong or indirect motive to the prosecutor[30]. 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. The action or the remedy of malicious prosecution has long been recognised in American law. Preservation of the security of the state/country. Accounts. Malicious Prosecution Author: Monazza Sajid, Symbiosis Law School, NOIDA What is the definition of Malicious Prosecution? 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 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.”. 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. In either case, the plaintiff may claim compensatory and sometimes punitive damages. Copyright © 2020, Thomson Reuters. When a plaintiff is successful in his case, damages for malicious prosecution may be substantial. 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. Walker Morris has reported previously on the 2016 Supreme Court case of Willers v Joyce, which A prosecution is said to exist when: “A criminal charge is made before a judicial officer or tribunal and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it, and is called the prosecutor.” [11], Prosecution is not expressly defined in The Code of Criminal Procedure in India. To understand when prosecution begins, reference may be made to Madan Mohan Singh v. Bhrigunath Singh[14]. 1. 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. Visit our professional site », Created by FindLaw's team of legal writers and editors The basic evolution of the law has taken place in England. As the name suggests, malicious prosecution involves legal action being taken against a defendant in order to deliberately cause harm – rather than on reasonable grounds. In the area of police misconduct I am asked about the advisability of suing for malicious prosecution more than any other tort, usually at the request of a still angry person who has been found not guilty by a judge or jury of a criminal charge or charges. Being the subject of a malicious prosecution can cause a wide range of injuries, whether it's from unsubstantiated criminal charges or a bogus civil claim. In Saville v. Malicious prosecution claims are expensive to get to trial. This is the most important criterion. Typical injuries include loss of reputation and credit, humiliation, and mental suffering. [25] Raja Braja Sunder Singh Deb v. Ramdeb Das Pattanaik, AIR 1944 P.C. ©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 320. In Glinski v. McIver,[7]Viscount Simonds had held that the plaintiff in order to succeed has to prove the following essentials. Lack of reasonable and probable cause is to be understood objectively; it does not connect the subjective attitude of the accuser. The English writers[8] on the whole seem to endorse the four essentials laid down by Viscount Simonds viz.. If you believe you were criminally charged or sued for reasons other than the quest for justice, speak with a personal injury attorney today. Malice can be best proven by portraying the wrong motive or by indicating that the circumstances of the case were such that the only causation factor of the prosecution was some wrong or indirect motive of the prosecutor. The damages may not necessarily be pecuniary. [18] Girja Prasad Sharma v. Umashanker Pathak, AIR 1973 MP 79 at p. 82. The proper test was indicated by the Privy Council in Mohammad Amin v. Jogendra Kumar Bannerjee[15]. 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. 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.). 776, 778 (1996). 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. Google Chrome, ... PENALTY CLAUSE See CONTRACT (Penalty) PENSIONS. Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. 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. The prosecutor becomes obsessed with the idea that the businessman caused him to lose the election. Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause.Generally… 189, p.194. Reasonable suspicion that the plaintiff committed the alleged crime for which he was prosecuted. Compensatory damages consist of both the actual damages that were a direct result of the malicious prosecution (which may include pain and suffering … [29] Mitchell v. Jenkins (1833) 5 B & Ad. 22 (2nd Ed. In the case of malicious prosecution, the, In malicious prosecution, it is necessary to show that the proceeding was without any. [31] Jogendra Garababu v. Lingaraj Patra, AIR. 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. [13]. [24] The concept of malice, is differentiated from the concept of lack of reasonable and probable cause. An honest belief by defendant in the guilt of the plaintiff. We recommend using Malicious prosecution is a common law intentional tort.Like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. [33] Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. Rather, it has to do with the individual who brought the false charges against the criminal defendant. 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. Also, witnesses play a crucial part in such maliciously instituted proceedings. 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. [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. Artificial person. 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]. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. Malicious prosecution has its origin in England and evolved in the 18th and 19th century. 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.”. It cannot be limited only to the process which starts from the formal act of taking cognizance by the Court. 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. This article discusses the elements of a malicious prosecution or abuse of process claim. The proceeding went on over three years. 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. [28] Nurse v. Rustomji, AIR 1924 Mad. [23] Kapoor Chand & Rikhi Ram Mahajan v. Hakim Jagdish Chand Sripat Rai, AIR 1974 (P&H) 215 at p. 218. 64 Geo. 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. [19] Hicks v Faulkner (1878) 8 Q.B.D. Reasonable and probable cause must be such, as would operate on the mind of a discreet and reasonable man; ‘malice’ and ‘want of reasonable and probable cause’ have reference to the state of the defendant’s mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.”, Malice has been identified to include wrong or indirect motive, but a prosecution cannot be labelled as malicious if it is only inspired by anger. The nature of the offence the plaintiff was charged of. 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. What is malicious prosecution? Malicious prosecution cases are complex and have many legal requirements, as you can see. For the efficient working of the criminal administration of Justice, the law expects every citizen to bring criminals to the courts of justice. 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. Speak with an Attorney about Malicious Prosecution Claims. At times, you can be sued as the scapegoat in a genuine personal injury when you had little to do with it. [3] Arnesh Kumar v. State of Bihar & Anr, (2014) 8 SCC 273. The Supreme Court has reiterated the principle in the case of West Bengal State Electricity Board v. Dilip Kumar Ray[26]as, “Malicious Prosecution – 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. In Corporate & Financial Law – To Pursue Or Not To? 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. 498A of Indian Penal Code, and that the police should not make automatic arrests in such cases as it permanently scars the reputation of the person. ... FOR THE LAW COULD NOT HAVE MEANT TO IMPOSE A PENALTY ON THE RIGHT TO LITIGATE. [24] West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976. Disablement pension. The statute of limitations for filing a malicious prosecution action in Oklahoma is 1 year. 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. Actual damages for a malicious prosecution claim will hinge on the emotional impact of the act, such as the confusion, bewilderment, and isolation typically experienced by the wrongfully accused. Unless the proceedings instituted are terminated in his favour, the plaintiff cannot initiate a suit for malicious prosecution. The damage must also be the reasonable and probable results of malicious prosecution and not too remote. However, occasionally criminal charges or civil lawsuits are maliciously filed in order to intimidate, harass, defame, or otherwise injure the other party. These shortcomings are in the form of numerous defences that can be availed in a suit of malicious prosecution. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “a proceeding in a court of law charging a person with a crime”. ACTIO DE PAUPERIE. A county prosecutor runs for mayor and loses the election. According to the court, it was “ajudicial proceeding instituted by one person against another, from wrongful or improper motive […] Your email address will not be published. This case, which leapfrogged directly from the High Co… Malice means, narrowly, a prosecution inspired by some motive of which the law disapproves. 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]. If the appeal results in his favour then he can sue for malicious prosecution. 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. 2. 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. 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. ACTIONABLE WRONG. Another important contribution to the menace of unjust prosecution to the English law has been the introduction of the office of the public prosecutor. The prior case can be either criminal or civil in nature. Pension benefits. Malice can be proved by evidence of the conduct and declarations. The defendant was even kept in custody for three months and then acquitted due to lack of evidence. Interestingly, malicious prosecution has been an entrenched part of common law for many centuries. Defending against bogus criminal charges can be a traumatic experience for anyone, particularly if those charges were filed with malice. This article deals with the various aspects of malicious prosecution. The elements of an action for malicious prosecution. What is malicious prosecution? The recent case of Willers v Joyce has broadened the long-established boundaries of the tort of malicious prosecution. Being sued in a similarly malicious manner can also take its toll on one's emotional well-being. Even though the proceedings terminate in favour of the plaintiff, he may suffer damage as a result of the prosecution. Mere circumstances of suspicion cannot be said to be reasonable and probable cause.[23]. A claim of malicious prosecution is a tort action. In such a social scenario, it is the need of the hour to address this issue. 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. [31] However, this does not mean that if a prosecution ends in acquittal the informant was malicious. Injury or damage to the plaintiff as a result of the prior action. For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by libel or slander. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. In order to prove this cause of action, the plaintiff (the injured party) is required to prove certain elements. Required fields are marked *. Malicious Prosecution In one case, we defended a client who was sued for damages based on the theory of malicious prosecution. Holt C.J. i.e. 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]. Favourable termination does not signify that the plaintiff is innocent, or he has been acquitted, but that he has not been convicted. That he acted without reasonable and probable cause. Depending on the circumstances, the court may even order the defendant to pay punitive damages. If the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. 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. In India, when a person is prosecuted by the criminal justice system or is put through civil litigation, all he can do is defend himself. ADMINISTRATION OF ESTATES. 390, 402 (1851). [5] The concept of malicious prosecution was formulated in America by Chief Justice Taney. – The damage to a man’s property as where is forced to expend money in necessary charges, to acquit himself of the crime of which he is accused. The inconvenience to which the plaintiff was charged to, The status and prosecution of the person prosecuted. 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]. We focus on this civil action as it relates to false criminal proceedings. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court. This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit. [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. Special cases of malicious mischief. The Rajasthan High Court held that the plaintiff could not prove malicious prosecution as there was no mala fide intention. Criminal and civil cases that lack sufficient evidence usually aren't pursued. MALICIOUS PROSECUTION. Therefore, it is essential to note that not only the actual prosecutor is liable. "Malicious prosecution" is a tort which is actionable through the civil courts. Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. 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. Conversely, if a conviction stands, then the claimant will fail in an action for malicious prosecution. It is often seen that the entire machinery of the police, witnesses and even the court staff are hands in glove with the prosecutor. TO SUE OR NOT TO SUE? This definition was approved by the House of Lords in Herniman v. Smith[20]. ‘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.”. It has to be proved that the plaintiff has suffered damages as a result of the prosecution. However, societal changes played a major role in this evolution. 565: 46 MLJ 353. Previously available only in relation to criminal claims, this case now offers a brand new cause of action for a defendant who has suffered as a result of the malicious prosecution of civilproceedings against it, for which there was no reasonable and probable cause. The difficulties proving your case mean that you need the right evidence, which means you need an attorney skilled in taking discovery. This site uses Akismet to reduce spam. Deterrence is created amongst people against instituting malicious litigation. Malice is an element that can be established by inference from circumstances and cannot be proved by direct evidence. 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; The name of this civil wrongdoing may seem misleading because it doesn’t have anything to do with Prosecutor/District Attorney or the State. It will also suffice if the order is quashed on its appeal, which leads to the acquittal of the claimant. 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. Plaintiffs also may claim a damaged reputation, loss of future earning potential, attorney fees, court fees. This was an outcome of the misuse of due procedure of law, in the 18th and 19th century in England. Your email address will not be published. Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse? 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. POLICE. For the initiation of malicious prosecution, the plaintiff should be acquitted by the c… Malicious Prosecution . 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. Generally, in order for a person to succeed in the action of malicious prosecution… The plaintiff in an action for malicious prosecution can recover money from the defendant for certain harms suffered. [30] Mitchell v. Williams, (1843) 11 M&W. 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 is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause. In India, the law on the subject is exactly the same as the law in England and the U.S.A.”. 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]. The Elements of a Malicious Prosecution Claim. Courts generally agree on the elements required for a malicious prosecution claim, but some states combine elements or arrange them differently. 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. [34] Gilchrist v. Gardner, (1891) 12 N.S.W. 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. Malicious Prosecution-Definition. – The damage done to a person as to where man is put to a danger of losing his life, limb or liberty. 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