Malicious Prosecution: Definition and Meaning

The malicious establishment of unsuccessful criminal, bankruptcy, or liquidation actions against another without a good faith basis is known as "malicious prosecution." This statute strikes a compromise between opposing ideologies, including the freedom that everyone should have to bring offenders to justice and the requirement to prevent false allegations against innocent people.

A "malicious prosecution" is when a criminal charge is unjustly used to start legal proceedings in a court. The tort of malicious prosecution offers relief for persons who are unfairly and maliciously prosecuted. The tort of malicious prosecution has its roots in the triangle exploitation of the judicial system, which is designed to encourage the distortion of the machinery of justice for a just cause.

What is the Meaning of Malicious Prosecution?

A person against whom a criminal or civil action has been initiated without probable cause and with malicious intent may file a claim for the deliberate "dignitary" tort of malicious prosecution. Injuries against one's human dignity are classified as "dignitary torts," which also include inflicting emotional pain and abusing the legal system. A malicious prosecution happens when one party brings a pointless lawsuit against another party with knowledge and malice. Both criminal and civil claims are included in this. Evidence is the primary distinction between claims based on criminal and civil activities.

As long as the plaintiff (the defendant in the original case) is able to demonstrate malice fortiori and a lack of probable cause, most jurisdictions permit recovery for claims based on civil lawsuits. Yet, some states want more than just the inconvenience of responding to a civil lawsuit; they also demand some actual interference with or harm to the plaintiff.

Remedies For Malicious Prosecution

The three types of court-based remedies that are against malicious prosecution and incarnation are presented by the current legislation and case law.

Remedies For Malicious Prosecution
Public Law Remedy Private Law Remedy Criminal Law Remedy

Public Law Remedy

The malicious prosecution violates the accused's fundamental rights, at which point the accused may assert writ jurisdiction pursuant to articles 32 or 226 and request from the writ courts that compensation is granted to the victim who experienced a physical, mental, and social injury. The right to compensation provided by the civil law of torts is not excluded by public-law remedies.

Private Law Remedy

A person who has been wrongly prosecuted may sue the state under the vicarious liability theory of private law for monetary damages. The defendant in a malicious prosecution may bring both cases at once.

Criminal Law Remedy

According to the provisions of the Indian Penal Code and the Criminal Procedure Code, the victim of malicious prosecution may seek that the relevant government takes criminal law remedy action against the relevant public officer. According to the Supreme Court, releasing an arrested person does not erase an illegal arrest. When this occurs, the states should take action against the individuals in charge of the prosecution.

Defences Available to Malicious Prosecution

The tort of malicious prosecution has some drawbacks despite being quite successful when used in the appropriate way. These flaws take the shape of a variety of defences that may be used in a lawsuit alleging intentional prosecution. When one is accused of malicious prosecution, one may raise a number of different defenses, including −

  • There is a solid suspicion that the accused is guilty of the offence for which he is being investigated.

  • A sincere conviction by the defendant of the plaintiff's guilt.

  • When the prosecution is the result of the officers of the law's judgement or action, the existence of a reasonable or plausible cause can be used as a complete defence.

  • If the plaintiff is at fault, there is Contributory Negligence. Such an instance may occur when the plaintiff generates a malicious impression by deceptive conduct, which served as the foundation for the prosecution and reasonable suspicion of the claimed offence.

  • Judiciary's power and immunity.

  • Statutory or legal power.

Elements of Malicious Prosecution

It means −

Prosecution by the Defendant

It should be highlighted that disciplinary authorities' departmental inquiries into the plaintiff will not be viewed as a prosecution. The term "prosecution" describes legal processes involving appeals.

Absence of Reasonable and Probable Cause

It is the plaintiff's duty to persuade the court that the defendants' malicious prosecution of him was without justification.

Even though a motive is reasonable, likely, and probable, it is useless if the prosecutor pursues the case without sufficient knowledge. It must be underlined that an accused person's acquittal or the case's dismissal should not serve as evidence that there was no reasonable and probable cause for the arrest.

The Malicious Act of the Defendant

Malice isn't always just a sentiment of ill will or a spirit of vengeance towards the plaintiff; it may also be acting with any erroneous motive that drives the prosecutor to gain from the person.

It is not always necessary for the prosecution to make the defendant appear to be acting intentionally. A motion for malicious prosecution may be valid if the prosecutor starts out innocent but later turns malicious. The continuation of the trial is malevolent from that point on if, throughout the course of the criminal prosecution, the defendant learns with great certainty of the accused's innocence. Evidence of the absence of sincere perception in the accusation and the subsequent requirement of reasonable and probable cause for establishing the prosecution complaint might be used to infer malice

Proceedings Are Terminated in Favour of The Plaintiff

Termination in this context refers to the absence of a finding of guilt for the defendant made by a judge.

Malice is no longer limited to being an emotion of hostility, spite, or a desire for retribution against the plaintiff. Malice can also refer to any improper motive that could aid the prosecutor in obtaining personal assets. While the investigation or legal proceedings are ongoing, no further action may be taken. It is against the law to claim that a case that is still in progress is wildly unfair.


Everyone has the right to bring a case in order to further their interests or to defend their rights, which will start the legal process in action. But such a right shouldn't interfere with the rights of others. Such rights must not be abused by starting unwarranted legal actions. It would subject the other person to unwarranted litigation, and the legal system would be exploited.

By demonstrating that the prosecution was started with malice, that there was no legitimate justification for it, and that it was ultimately ruled in the plaintiff's favor, the victim may be able to recover damages. A deterrent system of justice is the only method to safeguard citizens' fundamental rights and guard against abuse of the law.

Frequently Asked Question

Q1. What is the limitation for malicious prosecution?

Ans. When filing a lawsuit for malicious prosecution, one year must have passed since the plaintiff was cleared of all charges or the prosecution against them was otherwise ended, according to the terms of The Limitation Act, 1963 that were previously quoted.

Q2. Is malicious mischief a criminal case?

Ans. In accordance with Article 327 of the Revised Criminal Code, malicious mischief is a crime. Being naughty may sound cute, but it might get you in trouble with the law. As silly as it may seem, trashing someone else's property is illegal.

Q3. Why is malicious prosecution important?

Ans. A person who is the target of baseless and unreasonable legal action may file a civil claim for damages against the prosecutor under the legal concept of "malicious prosecution."

Q4. Who is the defendant in a malicious prosecution?

Ans. A person (the plaintiff) sues another person (the defendant) for, in a previous case, attempting to use the legal system against the plaintiff in an improper manner. These types of civil cases are connected to malicious prosecution and abuse of process.

Updated on: 07-Apr-2023


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