Malicious Prosecution

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecution, but may be brought in response to any baseless and malicious litigation or prosecution, whether civil or criminal.

To win a suit for malicious prosecution, the plaintiff must prove four elements:-

• The original case was terminated in favor of the plaintiff.
• The defendant played an active role in the original case.
• The defendant did not have probable cause or reasonable grounds to support the original case, and
• The defendant initiated or continued the initial case with an improper purpose.

Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. The main difference between claims based on civil or criminal action has to do with evidence. 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. But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages.

In the Gaya Prasad v. Bhagat Singh, the Privy Council pointed out that the conduct of the complainant before and after the complaint has to be seen to decide whether he was the real prosecutor or not. If the complainant knowing that the charge is false tries to misled the police by procuring false evidence for the conviction of the accused, he would be considered to be the prosecutor.