Law of Tort
Malicious prosecution
Every man has some reputation right every honest citizen wants protection from being unnecessarily dragged before a court of law for unnecessary variation worry and unjust charge brought against him.
When some body sue against an innocent man, file a criminal case, and it is proved that the case in vague. Then it may be called malicious prosecution.
The tort of malicious prosecution consists in unsuccessful criminal proceedings against another person, maliciously and without reasonable and probable cause.
Civil suit is not actionable
What things are to be proved by the plaintiff?
1) Prosecution by defendant
2) Termination of proceeding in favor of plaintiff
3) Reasonable and probable cause
4) Malicious intention
5) Damage of the Plaintiff
1) Prosecution by defendant:
a. Plaintiff was prosecuted
b. defendant was the prosecutor
Nagendra Nath Roy vs. Basanta das Bairagya (1922) 57 cal 25.
“Here the defendant had merely given information of his honest suspicion about the police without further interference on his part launched a case against the plaintiff. Held there was no prosecution by the defendant.”
2) Termination of proceeding in favor of plaintiff:
That the proceedings complained of terminated in favor of the plaintiff if from their nature they were capable of terminating.
Herniman vs. Smith (1938) AC 305
“Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal, the plaintiff can sue for malicious prosecution.”
Not on the date of filing criminal suit against plaintiff but on the date when it is terminated.
3) Reasonable and probable cause:
The prosecution was instituted without any reasonable or probable cause
Firstly – honest belief.
Secondly – existence of circumstances.
Thirdly – Circumstances based on reasonable grounds.
4) Malicious intention: If there is no reasonable and probable cause.
5) Damage:
Chief Justice Holt: Three types of damage
- The damage to a man’s as where the matter where of he is accused is scandal.
- The damage done to the person as where a man is put in danger of loosing his life, limb or liberty.
- Damage to his property.
a. Damage of reputation
b. Damage to person
c. Damage to property
Differences between malicious prosecution and False imprisonment:
- Existence of a proceeding.
- Movement.
- Permission of judicial authority
- Malice
- Prove
- Damage of the plaintiff
- Constitutional and criminal
Differences between malicious prosecution and False imprisonment:
- Malicious prosecution is wrongfully setting the criminal law in motion but false imprisonment is wrongfully restraining the personal liberty of the plaintiff.
- The action of false imprisonment owes its origin to the writ of trespass whereas the history of malicious prosecution may be traced back to the old writ of conspiracy.
- The purpose of the tort of false imprisonment is to protect the liberty of a person. The purpose of the law of malicious prosecution is to check the abuse of legal process.
- To constitute false imprisonment restraint on the freedom of movement is essential but restraint on personal liberty is not an essential element of the tort of malicious prosecution.
- In malicious prosecution must be before a judicial authority but in false imprisonment restriction on movement is by the defendant or any other person for whose acts he is responsible.
- In case of malicious prosecution damage must be proved by the plaintiff but in false imprisonment damage is not an essential element.
- In malicious prosecution malice is essential element and must be established by the plaintiff but malice is not essential in an action for false imprisonment.
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