Malicious Prosecution – Law of Torts – Notes

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Malicious Prosecution – Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously and without reasonable and probable cause. When malicious prosecution through criminal proceedings causes actual damage to the party prosecuted, it is a tort for which he can bring an action.

Essentials of Malicious Prosecution

  • Prosecution by the defendant – Prosecution means criminal proceedings against a person in a court of law.
  • The absence of reasonable and probable causes – The plaintiff has also to prove that the defendant prosecuted him without reasonable cause.
  • Malice – It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him.
  • Termination of proceedings in favour of the plaintiff – It is also essential that the prosecution terminates in favour of the plaintiff.
  • Damage – It has also to be proved that the plaintiff suffered damage as a consequence of the prosecution complained of.

Smt. Manijeh v. Sohrab Peshottam Kotwal – The lawyer was misled and was provided with such facts which the defendant knew to be false. In the prosecution on the basis of such advice, this was held to be want of reasonable and probable cause and also malice for which the defendant was held liable.

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