malicious prosecution
vinod bansal
(Querist) 17 May 2009
This query is : Resolved
Sir
A civil suit was filed for declaration of adoption deed null & void,later suit was dismissed as withdrawn without any liberty to file a fresh suit again etc.,now i want to file a case against petitioner for malicious prosecution,under which provision/section it is covered & what is limitation.Plz advice
A V Vishal
(Expert) 17 May 2009
Dear Vinod
What are the facts of the case
A V Vishal
(Expert) 18 May 2009
Dear Vinod,
In an action of malicious prosecution the plaintiff must prove:
1) That he was prosecuted by the defendant.
2) That the proceeding complained was terminated in favour of the present plaintiff
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact.
5) That he suffered damage to his reputation or to the safety of person, or to security of his property.
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. The person to be sued is the person who was ‘actively instrumental in putting the law in force. There was a conflict on the question whether there is prosecution of a person before process is issued calling upon him to defend himself. One view was that a prosecution began only when process was issued and there could be no action when a magistrate dismissed a complaint under section 203 of the code of criminal procedure. The other view was that a prosecution commenced as soon as a charge was made before the court and before process was issued to the accused.
The proper test was indicated by the privy council in the Mohammad Amin v. Jogendra Kumar Bannerjee[2].The defendant had filed a complaint before the magistrate charging the plaintiff with cheating. The magistrate thereupon examined the complainant an oath and made an inquiry under s 202 of the code of criminal procedure. Notice of the inquiry had been issued to the plaintiff who attended it with his counsel and incurred costs doing so. The magistrate finally dismissed the complaint under section 203 of the code. In these circumstances the Privy Council held that there was a prosecution .The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. A mere presentation of complaint to a magistrate who dismissed it on the ground that is disclosed no offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually resulted.
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. If however his is convicted he has no right to sue and will not be allowed to show that he was innocent and wrongly convicted. His only remedy in that case is to appeal against the conviction. If the appeal results in his favour then he can sue for malicious prosecution. It is unnecessary for the plaintiff to prove his innocence as a separate issue.
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. As laid down in Hicks v. Faulkner [4] there must be
i. an honest belief of the accuser in the guilt of the accused
ii. such belief must be based on an honest conviction of the existence of circumstances which led the accuser
iii. such secondly mentioned belief as to the ex
adv. rajeev ( rajoo )
(Expert) 18 May 2009
Suit was filed for declaration of adoption deed null & void,later suit was dismissed as withdrawn without any liberty to file a fresh suit again etc., There is no wrong in this.
Malice Means : Intentionally committing an act from wrong motives or intention to comit a crime.
Malicious Means: without a lawful reason or with an improper motive.
Suit was filed and withdrawn even though there in an intention to harrash the person against whom the suit was filed, but after withdrawl of the suit, nothing is affected to the adoption and deed is intact.No harm is caused to the person. So question of filing malicious prosecution does not arise.
RAKHI BUDHIRAJA ADVOCATE
(Expert) 18 May 2009
