Dr. Ram Manohar Lohiya National Law University

DR.
RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
LAW OF TORTS
ROUGH DRAFT-
JUDICIAL TRENDS IN MALICIOUS PROSECUTION
SUBMITTED TO : SUBMITTED BY:
Dr. RAJNEESH KUMAR YADAV FAIZAN KHAN

Associate Professor (Law) Roll No.-49 (A)
RMLNLU B.A.LLB.(HONS.)
OVERVIEW
Malicious prosecution is an intentional tort designed to provide redress for losses flowing from
an unjustified prosecution.
Under the first element of the test for malicious prosecution, the plaintiff must prove that the
prosecution at issue was initiated by the defendant. This element identifies the proper target of
the suit, as it is only those who were actively instrumental in setting the law in motion that may
be held accountable for any damage that results.
The second element of the tort demands evidence that the prosecution terminated in the
plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly
rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The
favourable termination requirement may be satisfied no matter the route by which the
proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a
preliminary hearing, a withdrawal, or a stay. However, where the termination does not result
from an adjudication on the merits, for example, in the case of a settlement or plea bargain, a live
issue may arise whether the termination of the proceedings was in favour of the plaintiff.
The third element which must be proven by a plaintiff absence of reasonable and probable cause
to commence or continue the prosecution further delineates the scope of potential plaintiffs. As a
matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced
or continued the criminal proceeding in question, the proceeding must be taken to have been
properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.
Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds
does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of
whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is
an intentional tort that requires proof that the defendant’s conduct in setting the criminal process
in motion was fueled by malice.
Elements of malicious prosecution:
1. Institution or continuation of Legal proceedings
There must have been a prosecution initiated by the defendant. The word
‘prosecution’ means a proceeding in a court of law charging a person with a crime.
To prosecute is to set the law in motion and the law is set in motion only by an
appeal to some person clothed.
2. Termination of the prosecution in the plaintiff’s favour .
The plaintiff must prove that the prosecution ended in his favour. He has no right
to sue before it is terminated and while it is pending. The termination may be by an
acquittal on the merits and a finding of his innocence or by a dismissal of the
complaint for technical defects or for non-prosecution.
3. Absence of reasonable and probable cause.
‘Reasonable and probable cause’ is an honest belief in the guilt of the accused
based on a full conviction founded upon reasonable grounds, of the existence of a
circumstances, which assuming them to be true, would reasonably lead any
ordinary prudent man and cautious man placed in the position of the accuser to the
conclusion that the person charged was probably guilty of the crime imputed.
4. Malice
Malice for the purposes of malicious prosecution means having any other motive
apart from that of bringing an offender to justice. Spite and ill-will are sufficient
but not necessary conditions of malice.
CASES
1) Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil
2) Punam Singh vs. State of Jharkhand & another
3) Ramlal vs. Mahendra
TENTATIVE CHAPTERISATION
1. Declaration
2. Acknowledgement
3. Table of Cases Referred
4. Statement of Problem
5. Objective of Research
6. Hypothesis
7. Research methodology
8. Introduction
9. Elements
10. Case analysis
11. Some important cases
12. Conclusion
13. Bibliography
Bibliography
 Web resources
1) http://www.wikipedia.com
2) http://www.manupatra.com
3) http://www.indiankanoon.org
4) http://www.indianlawreports.com
 Other resources
1. Law of Malicious prosecution
2. Ramaswamy Iyer’s – The Law of Torts
3. Law of Torts – Ratanlal Dhirajlal

Dr. Ram Manohar Lohiya National Law University

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DR.

RAM MANOHAR LOHIYA NATIONAL LAW

JUDICIAL TRENDS IN MALICIOUS PROSECUTION

SUBMITTED TO : SUBMITTED BY:

Dr. RAJNEESH KUMAR YADAV FAIZAN KHAN

1. Institution or continuation of Legal proceedings

2. Termination of the prosecution in the plaintiff’s favour .

3. Absence of reasonable and probable cause.

1) Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil

2) Punam Singh vs. State of Jharkhand & another

3) Ramlal vs. Mahendra

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