Remedy for Malicious Prosecution

Sometimes, because of some personal animosity or sometimes, even by mistake an innocent person is fabricated in a lawsuit. Such kind of malicious prosecution of a person, is a penal offence.

What is the Meaning of Malicious Prosecution?

Malicious prosecution may be defined as the institution of false criminal proceedings brought maliciously and without reasonable cause against an innocent person. However, in civil court, if a civil suit is filed by the plaintiff against a defendant with an ulterior motive and without a valid cause of action, only to gain an unfair advantage over the defendant by engaging him in false litigation, the plaintiff will be found in contempt of court. Then it is referred to as "court process abuse."

Essentials to Prove Malicious Prosecution

In the suit for damages for malicious prosecution, the aggrieved person has to prove the following things −

  • The prosecution must be initiated by the prosecutor (defendant).

  • There is no reasonable cause for the prosecution.

  • The prosecutor is acting maliciously against an innocent person.

  • The proceedings have been finally terminated in favour of the plaintiff.

  • The plaintiff must have been harmed as a result of the false prosecution.

Remedy for Malicious Prosecution

When prosecution is brought against a person without a reasonable ground, it causes injury, damage, or loss of reputation to that person. So what remedy does the aggrieved person so prosecuted have in the law against the party prosecuting him? The remedy is an action for tort that can be instituted in civil court. Therefore, malicious prosecution is an illegal act, which is a kind of offence that comes under the law of tort in common law.

The legal action for tort of malicious prosecution is based upon the following two principles 

  • Every individual has the right and liberty to bring criminals to justice.

  • False accusations made against innocent people must be avoided.

How to Prevent Malicious Prosecution

It is not for the court to decide at the initial stage of the criminal proceedings whether the proceeding against the accused person is actually a false or malicious proceeding. However, if the proceedings in a criminal case have been terminated without finding the accused guilty, even then, the court cannot hold on its own that the proceedings in the said case were malicious proceedings. The accused person has to prove in a separate legal action in court that he was implicated in the false case and was subjected to the trial for something he had nothing to do with. And the false accusation has actually caused injury to his reputation, financial loss, and other damages.

The legal action that an innocent person may bring against the prosecutor of the false case is an action for tort, a kind of civil suit for damages. In the criminal court, at the time of framing charges in the prosecution case, if he is satisfied that there is no charge for which the accused person can be pleaded guilty, the court at that stage may discharge him.

Court’s Power to Prevent Abuse of the Process of the Court

If a civil suit is filed against a person without any valid cause of action, the suit is to be called an abuse of the court's process. In civil litigation, if there is no valid cause of action, the suit is not maintainable in court. However, due to a flaw in the system, such suits can drag on for years or decades, and if the plaintiff is unable to prove his case against the defendant, the suit may be dismissed. But what would be the remedy available to the defendant, who has been unnecessarily engaged in the litigation for decades. 

Probably there is no remedy available to him except a claim damages he suffered during the pendency of the false suit. Now the question arises whether the civil court has the power to stop the false litigation at an earlier stage. Of course, yes, the civil courts have been empowered with the inherent powers under Section 151 of the Code of Civil Procedure. The civil court, by using its inherent powers, can stop litigation without cause of action and dismiss the suit at the initial stage under Order 7 Rule 11 of the Code of Civil Procedure.


If person X filed a police complaint reporting a theft that occurred in his home, he suspected person Y of the same. The person Y was arrested by the police, but he was subsequently discharged by the magistrate. Then Y brought a suit against X, claiming damages for malicious prosecution. It was held in this case that the suit for damages was not maintainable as there was no prosecution at all by X. and it was merely police proceedings for the investigation of a crime of theft, and police proceedings are not the same thing as prosecution. Legal action for tort of malicious prosecution is only maintainable when the prosecution should be initiated by a prosecutor Y and not by the police.


A "malicious prosecution" is a kind of illegal act that comes under the law of tort, and the remedy for it is a claim for damages by way of a civil suit under the law of tort. However, in that suit for damages, the plaintiff has to prove to the court that a malicious prosecution was initiated by the defendant without any reasonable cause and that prosecution has been terminated in his favor; further, due to the prosecution, he has suffered injury, loss of reputation, and other damages.

In civil litigation, if a civil suit is filed by the plaintiff against the defendant without a valid cause of action, then it is referred to as court process abuse. The civil court has inherent powers to prevent abuse of the court's process, and thereby the court may reject the suit by using its inherent powers, having been satisfied by the material on record that the suit is devoid of a valid cause of action.

Frequently Asked Questions

Q1. What do you mean by "malicious prosecution"?

Ans: A "malicious prosecution" is a criminal proceeding initiated against a person in which charges have been framed against him by a judge in a court of law accusing him of committing a crime. The prosecution turns out to be malicious prosecution when the proceedings in the case have been terminated in the favour of the accuser and he has been exonerated of all the charges and set at liberty with all his reputation.

Q2. What do you mean by the abuse of the judicial process?

Ans: In cases where a civil suit has been filed by the plaintiff against the defendant without any valid cause of action and with an ulterior motive to harass and victimise the defendant or to prevent him from enjoying his full legal rights over his property, the suit is said to be an abuse of the legal system.

Q3. What is the remedy against the malicious prosecution?

Ans: The remedy for malicious prosecution is a civil suit under tort law claiming damages for the plaintiff's injury or loss against the defendant who initiated the malicious prosecution.

Q3. What powers does the court have to prevent malicious prosecution?

Ans: The court does not have an apparent power to prevent malicious prosecution, however, if it is proved by the trial of the case that the accused person is not guilty of the commission of the crime for which charges have been framed against him. The court shall acquit him, and the proceeding gets terminated in favour of the accused person.

Q4. Is the court empowered to prevent abuse of its process?

Ans: The civil court has inherent power to prevent abuse of its process under Section 151 of the Code of Civil Procedure (1908). 

Updated on: 07-Apr-2023


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