Malicious prosecution

The action for damages for malicious prosecution is part of the Common LawCommon law The legal system that originated in England and is now in use in the United States. It is based on court decisions rather than statutes passed by the legislature. of EnglandEngland In England, the Parliament was originally an advisory body summoned to consult with the monarch, and the courts exercised delegated royal powers, as “lions beneath the throne”.. In IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more as in other parts of the Commonwealth like Australia the law on the subject is exactly the same as the law in England and the United States of America.

For a comparative study of malicious legal proceedings under the three systems see Chapter XXII page 850 and foll., of Clerk and Lindsell on Torts, Eleventh Edition (1954), Chapter XXV, page 849 and foll, of Anand and Sastri, LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. of Torts (1952), Restatement of the Law of Torts as adopted and promulgated by the American Law Institute at Washington, D.C., Vol. III, Ch. XXIX, page 379, foll., and J. C. Fleming, The Law of Torts (1957) (The Law Book Co. of Australasia Pty. Ltd., Ch. XXIV, pages 618-636).

The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of the justice for an improper purpose. The gist of the action as 34 American JurisprudenceJurisprudence It is a branch of philosophy, that discusses the legality of Law. Oppenheimer v Cattermole (1976), the court considered the question of whether a Nazi law was so iniquitous that it should refuse to recognise it as a law, thus raising the connection between the concepts of law and morality., page 703, puts it is the putting of legal process in force, regularly for the mere purpose of vaxation or injury, or as 38 Corpus Juris puts it the gist of the action is that plaintiff has been improperly made the subject of legal process resulting in his damage (page 383).

Professor Winfield in his well-known work on Law of Torts narrates the long history of this tortTort A civil wrong or breach of a duty to another person as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident. taking us back to the old writ of conspiracy de odioetatia which was in existence as early as Edward I’s reign and how its progress towards its modern equivalent had to make way slowly between two competing principles, viz., the freedom of action that every man should have in bringing criminals to-justice and the necessity for checking lying accusations of innocent people. (4th edition (1948) pages 610-611).

Thus malicious prosecution a very ancient action, regarded as a remedy is a distinctive action ex delicto for the recovery of damage to person, property or reputation shown to have proximately resulted from a previous civil or criminal proceeding which was commenced or continued without probable cause but with malice and which has terminated unsuccessfully (38 Corpus Juris, page 383).

It was only in 1698 that this action for damages for malicious prosecution, was placed on a firm basis in Savile or Savill v. Roberts (1698) 1 Ld. Raym. 374 : 1 Salkeld 14 : Car thew 416 : 12 Mod. 208 : 5 Mod. 223 : 91 E.R. 14 and Professor Winfield concludes this historical exposition by pointing out that even then it has become so much hedged about with restrictions and the burden of proof upon the plaintiff is so heavy that no honest prosecutor is ever likely to be deterred by it from doing his duty, and it is notable how rarely an action is brought at all much less a successful one, for this tort. Therefore to cite 34 American Jurisprudence, page 705, again it is frequently said that the action for malicious prosecution is not favoured in law but a better way of expressing the idea is to say that the action should be properly guarded and its true principles strictly adhered to since public policy favours the exposure of a crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor. which a recovery against a prosecutor obviously tends to discourage. Harper on Torts, U.S.A., Chapter XVI, page 581 : It is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society. It is unnecessary that the citizen be accorded immunity for bona fide efforts to bring anti-social members of society to the bar of justice. Again it is necessary that one individual be free to protect his own personal rights by resort to the Courts without the threat of a counter suit for damages in the event he is unsuccessful. All the restricts resulting from these various interests and principles of social policy are reflected in the usual formula for the tort of malicious prosecution that the plaintiff must show (a) that proceedings had been instituted against him (b) for an offence which was groundless as evidenced by the successful termination of the proceedings in his favour and (c) which were instituted against him by the defendant without probable cause and from malicious motives.

In a suit for damages for malicious prosecution the plaintiff has to prove as laid down by their Lordships of the Privy Council in Mohammed Amin v. Jogendra Kumar Bannerjee (1947) 2 M.L.J. 27 : ILR (1948) 1 Cal. 256 : L.R. 74 IndAp 193 : AIR 1947 P.C. 108 that the defendant has prosecuted the plaintiff, i.e., instituted criminal proceedings or certain other proceedings reflecting upon the plaintiff’s honour or character (2) that the prosecution has ended in favour of the plaintiff; (3) that the defendant has prosecuted without reasonable and probable cause; (4) that the defendant in prosecuting was actuated by malice, i.e., an indirect and improper motive ; and (5) that the plaintiff when the proceedings are other than criminal proceedings has suffered special damage, unless the proceedings are such as from their very nature are calculated to injure the creditor honour of the plaintiff. To sum up in the language of 34 American Jurisprudence, page 703, a malicious prosecution is one that is begun in malice without probable cause to believe it can succeed and finally ends in failure. If any one of these elements is lacking the result is fatal to the action. (Indian) Anand and Sastri Law of Torts, page 850; Ramaswami Iyer, The Law of Torts, Fourth Edition, page 317; Venkatesa Iyer, law of Torts, page 498; (English) Clerk and Lindsell on Torts, Eleventh Edition, page 582; Salmond on Torts, Eleventh Edition, page 789; Under bill’s Law of Torts, 15th Edition, page 276, et seq; (American) Restatement of the Law: Torts, Volume III, Section 653, page 392; 34 American Jurisprudence Malicious Prosecution, S.I., page703 and foil.; 38 Corpus Juris, page 386, Section 3; Fleming, page 619 (Australian).

The term ” prosecution ” will normally mean criminal proceedings in general. 3ut for the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. obloquy is attached. The word ” prosecution ” in the phrase ” malicious prosecution ” is not to be taken in the restricted sense in which it is used in the Code of Criminal Procedure. It is not essential that the original proceeding should have been of such a, nature as to render a person against whom it is taken liable to be arrested, fined or imprisoned. Thus, proceedings u/s 47 b of the Code of Criminal Procedure and proceedings u/s 13 of the Legal Practitioners Act would constitute a prosecution within the meaning of the Law of Tort. The prosecution must, however, as pointed out in Pollock on Torts, Fourteenth Edition, at page 249, have been for an offence of which a conviction would carry reprobation impairing the party’s fair name. It is not enough that the proceedings were penal in form as is the case under many administrative statutes. Wiffen v. Bailey L.R. (1915) 1 K.B. 600 Sreeramulu v. Kolandaioelu (1916) 37 I.C. 374 .

In order to entitle a plaintiff to succeed in a suit for damages for malicious prosecution, the first essential to be established by him is that there was prosecution of the plaintiff by the defendant. A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filed through the instrumentality of an agentAgent An agent is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. Indian Contract Act or a counsel. A private person at whose instance and report the prosecution is launched by the police is a prosecutor within the meaning of the present context : Gaya Prasad v. Bhagat (1908) 18 M.L.J. 394 : L.R. 35 IndAp 189 : ILR 30 All. 525 . But the case would be otherwise, where the defendant merely gave an account of his honest suspicion about the plaintiff to the police, who without any further activity on his part had started a case against the plaintiff. Thus a mere informant cannot be a prosecutor. There is a sharp distinction between giving information and making complaint upon which prosecution is based. The question whether the defendant was the real prosecutor or informant is to be determined by his conduct before and during the trial. Periya Goundan Vs. Kuppa Goundan, Manlckam v. Munuswami (1915) 29 M.L.J. 694 Rajagopal v. Spencer & Co (1920) 12 L.W. 87 Shanmuga v. Kandaswami (1920) 12 L.W. 170 To render one liable for malicious prosecution it must appear that he was the proximate and efficient cause or instigated ” or was ” actively instrumental as Fleming puts it, in putting the law in motion ; some affirmative “act or procuration in connection with the prosecution must be shown: Damby’s Case 43 L.T. 603. Therefore witnesses cannot be sued for damages : Fakir Mohammed v. Fakir Nanji AIR 1932 Sind 23. Shanmuga v. Kandaswami AIR 1932 Sind 23. Cabasi v. Vila (1940) C.L.R. 130. (distinction: Witnesses are not “self-starters “). For the purpose of a suit for damages for malicious prosecution, the prosecution cannot be said to have commenced unless and until a process has been issued for the plaintiff to appear ; Sheik Meeran v. Ratnavelu (1912) 25 M.L.J. 1 : ILR 37 Mad. 181., Arunachaala v. Chinna Muniswami 1926 M.W.N. 527. Vattappa Kone v. Kuttu Karuppan (1941) M.L.J. 200 Sanjivi v. Koneri (1925) 50 M.L.J. 460 : ILR 49 Mad. 315. Their Lordships of the Privy Council in Muhammad Amin v. Jogendra (1947) 2 M.L.J. 27 : 51 C.W.N. 723 : L.R. 74 IndAp 193 have laid down a different test, viz., whether criminal proceedings have reached a stage at which damage to the plaintiff results; See also (Indian) Anand and Sastri Law of Torts, page 850; Ramaswami Iyer, Law of Torts, Fourth Edition, page 319; K. G. Kale, the Law of Malicious Prosecution (1930), page 8 ; Mitter, Defamation and Malicious Prosecution (1954), Part I, Chapter II, page 202 and following; Venkatesa Iyer, Law of Torts (1935), Chapter XXI, page 498 and following, D. N. Guha, Defamation and Malicious Prosecution, page 101 and following; (English) Clerk and Lindsell on Torts, Eleventh Edition, page 852 ; Salmond on Torts, Eleventh Edition, page 740; (American) 34 American Jurisprudence, Sections 22-26, pages 715 and following; Restatement of Law : Torts, Volume III, Chapter XXIX, Section 654, page 389; 38 Corpus Juris, Section 22, page 394 and following ; Fleming, pages 621-622 (Australian).

In order to succeed in a suit for malicious prosecution, the second essential is that the plaintiff must establish that his prosecution by the defendant ended in his favour. The reason for this proposition is that if in the proceeding complained of the decision was against the plaintiff and was unreversed, it would not be consistent with the principle on which the law is administered, for another Court, not being the Court of Appeal, to hold that the decision was come to without reasonable and probable cause. The word ” ended ” is the operative word. If the plaintiff was convicted, and the conviction was quashed on appeal, he can still sue as the proceedings ended in his favour. Where the plaintiff is convicted of an offence similar to, but less grave than the offence with which he was charged by the defendant, the, defendant may still be liable for malicious prosecution of the graver offence. A prosecution may end favourably not only by acquittal but also and favourably by discharge, discontinuance of the proceedings excepting where it is due to the impossibility or impracticability of bringing the accused to trial or dismissal of the complaint: (Indian) Anand and Sastri Law of Torts (1952), page 857 ; Ramaswami Iyer, The Law of Torts, Fourth Edition, page 320; Venkatesa Iyer, the Law of Torts, page 501; Mitter, Defamation and Malicious Prosecution, page 223; K. G. Kale, The Law of Malicious Prosecution, page 27; (English) Clerk and Lindsell on Torts, Eleventh Edition, page 858; Salmond on Torts, Eleventh Edition, page 747; (American) 34 American Jurisprudence, Section 27, page 718 and following; Restatement of the Law,: Torts, Volume III, Chapter XXIX, Section 659, Topic 2 ; 38 Corpus Juris, Malicious Prosecution, Sections 47-48; Fleming, page 624 (Australian).

The plaintiff must show that the defendant prosecuted him without reasonable and probable cause. It is when he has led some evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 to this effect that the defendant can be called upon to show the existence of such a cause. The onus lies heavily upon the plaintiff; V.T. Srinivasa Thathachariar Vs. P. Thiruvenkatachariar, . This rule may appear to require the plaintiff to prove a negative, viz., that the defendant had not reasonable and probable cause for the prosecution. But in the words of Bowen, L.J.

if the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff “: Quartz Hill Gold Mining Co. v Eyre (1883) L.R. 11 Q.B.D. 674.

When the plaintiff has produced evidence which if unrebutted would entitle him to succeed the onus shifts to the defendant to establish the contrary, that is the presence of reasonable and probable cause. To sum up as has been set out in Halsbury’s Laws of England (Hailsham Edition), Volume XXII, Part I, page 21, the plaintiff in proving the absence of reasonable and probable cause has to prove a negative and in general need only give slight evidence of such absence.

1. “Reasonable and probable cause” means simply reasonable cause, the word probable being used with its original meaning of” probable ” and hence ” reliable “. The conjunction of the adjectives ” reasonable ” and ” probable ” is a heritage from the redundancies in which the old pleaders delighted. Salmond observes that probable is synonymous with reasonable and means a good cause and that probabilis causa was not unknown to classical Latin. The American case-law as well as American text-books speak only of probable cause and do not make use of the phrase ” probable and reasonable cause “. We naturally follow the English practice. The Australians also do the same (Fleming, page 619).

In a suit for malicious prosecution the important question is whether the facts as known to the defendant or reasonably believed in by him at the material timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”), constituted a reasonable cause for the prosecution.

The following extracts from the Standard Text Books on the Law of Torts will be helpful.

Salmond on Torts, Eleventh Edition, page 742, has the following to say:

Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. In Hicks v. Faulkner (1878) L.R. 8 Q.B.D. Hawkins, J. said ‘I should define reasonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary, prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.

In Ramaswamy Iyer’s Law of Torts, pages 321-326, it is stated:

The issue is one of fact in the ordinary sense that it is a conclusion to be drawn from the circumstances. It is a question of law in England in the sense that it is for the Judge and not for the jury to decide. Where it is shown that the defendant did not believe in the plaintiff’s guilt, there is no reasonable and probable cause for him and he cannot be heard to say that the real facts which were unknown to him would make out the plaintiff’s guilt. In such a case the defendant’s conduct is conclusive evidence not merely of absence of reasonable and probable cause, but also of malice. Where it does not appear that the defendant had no belief in the plaintiff’s guilt, the plaintiff must show that the-defendant’s conduct was unreasonable in the circumstances. Recklessness, haste, failure to make enquiries or test his information or grounds of suspicion would be evidence of such conduct. On the other hand, the fact that he placed his information fairly before his lawyers and acted on legal, advice would be evidence of the contrary. The existence of mere grounds of suspicion would not be reasonable cause. The plaintiff is bound to give some evidence which will prima facie suggest absence of reasonable and probable cause; if he does, the onus will then be shifted to .the defendant to rebut it. Whether mere proof of the plaintiff’s innocence would be such evidence would depend on the facts of each case.

But as pointed out in Clerk and Lindsell on Torts, Eleventh Edition, page 864:

A man is not bound before instituting proceedings to see that he has such evidence as will be-legally sufficient to secure a conviction. In Dawson v. Vansandau (1863) 11 W.R. 516 the defendant had preferred a charge of conspiracy against the plaintiff on the evidence of an alleged accomplice, and it was held that he might well have reasonable and probable cause. An accomplice or tainted witness may give-evidence sufficient to make out a prima facie case and warrant the preferring of a criminal charge, though it might not be sufficient evidence upon which to convict. Neither is it necessary that the-defendant should act only on legal evidence and inquire into everything at first hand. It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life ; and it is for the plaintiff to satisfy the jury that there was a want of proper care in testing that information.

It is not justifiable to commence a prosecution on mere suspicion….

American Jurisprudence, pages 731-732 (Section 47) defines probable cause as follows:

Many definitions of the term ‘ probable cause ‘ as used in actions for malicious prosecution, differing more or less in their language, are to be found in the decisions. Thus, for instance, probable cause for a criminal prosecution has been defined as a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious, or as some Courts put it, a prudent, man in the belief that the party is guilty of the offence with which he is charged as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offence for which he was prosecuted, and as such facts and circumstances as, when communicated to the generality of men of ordinary and impartial minds, are sufficient to raise in them a belief or real, grave suspicion of the guilt of the person. With reference to civil actions, probable cause has been said to be such reason supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper. ‘ Probable cause ‘ in this connection, does not mean sufficient cause; and the question in the action is not whether there was in fact a sufficient cause for the prosecution or proceeding complained of, since the acquittal or failure of the proceeding shows that there was not. A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish for the complete legal idea expressed by the term ‘ probable cause ‘ is not to be gathered from a mere definition. However, notwithstanding the different wordings of the many judicial definitions before referred to, there seems to be sufficient substantial agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. among them to warrant the statement that the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant. That is if a reasonable man would have believed and acted under the circumstances as the defendant did, there would be probable cause;, otherwise not. It is to be noted that the conduct of the defendant is to be weighed in view of what appeared to him at the time of instituting the prior proceeding, not in the light of subsequently appearing facts.

Restatement of the Law: Torts, Volume III, Section 662, defines probable cause as follows:

One who initiates criminal proceedings against another has probable cause for so doing if he (a) reasonably believes that the person accused has acted or failed to act in a particular manner ; and

(b) (i) correctly believes that such acts or omissions constitute at common law or under an. existing statute the offence charged against the accused, or

(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in Section 666.

Corpus Juris sets out in Section 35, pages 405-406, the requisite knowledge of prosecutor, as follows:

The facts relied upon to constitute probable cause may be those which are within the persona’ knowledge of the prosecutor, or those of which he learns from proper, information derived from others, or both. Probable cause is wanting where he acts on facts widiin his own knowledge which, to his knowledge, do not constitute a crime ; or where notwithstanding die sufficiency of the facts on which ‘ he makes this accusation, he has knowledge of other facts which satisfactorily show accused’s innocence. If he acts on information derived from others making an accusation, these facts to operate as a defence by way of probable cause must relate to the question of guilt. And the test of the sufficiency of the resulting knowledge is whether it would have justified a prudent, honest and strong suspicion of the guilt of accused. Obviously mere rumour or information of a vague and indefinite nature, or information which the party making the accusation knows to be false or which does not tend to establish the guilt of accused, or a mere statement by third parties that they believe that accused had committed a crime, does not establish probable cause for a prosecution.

But as pointed out in the next section:

The prosecutor is not bound to verify the correctness of each item of information, or to investigate the crime itself, or to institute an inquiry into the character and antecedents of accused before he attempts to set on foot a criminal prosecution, where he has information on which he is entitled to rely, or to act as a spy on accused for the purpose of ascertaining his defence, or to make inquiries from him or ask him for an explanation, it is sufficient that he acted with such caution, impartiality and diligence as a reasonably prudent man would have used under the circumstances to ascertain the truth of his suspicions. However, if the facts or circumstances put him upon inquiry, he will be charged with knowledge of such facts as he would have learned if he or his agent authorised to investigate had made a proper investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. into the circumstances of the case, including the character and identity of accused.

In addition the following three well-known English decisions may be briefly referred to. In Herniman v. Smith L.R. (1938) A.C. 305 the House of Lords laid down:

It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. Circumstances may exist in which it is right, before charging a man with misconduct to ask him for an explanation; but no general rule can be laid down, and where a person is satisfied, or has apparently sufficient evidence, that he has in fact been cheated, there is no obligation to call on the cheat and ask for an explanation, in as much as to ask for this may only have the effect of causing material evidence to disappear or be manufactured.

In Tims v. John Lewis & Co., Ltd L.R. (1951) 2 K.B. 459. Lord Goddard, C.J., held:

The question in an action for malicious prosecution whether there was an absence of reasonable cause for the prosecution has not to be determined subjectively; it is a question which the Court has to determine objectively on the evidence before it ; that is to say, the question is not what, on the evidence known to the prosecutor he did in fact think, but what, as a reasonable person, he ought in the view of the Court, to have thought.

In Tempest v. Snowden L.R. (1952) 1 K.B. 130. Denning, L.J., has observed:

It is sometimes said that, in order to have reasonable and probable cause there must be an honest belief in the guilt of the accused. But I do not think that should be regarded as a universal proposition applicable to all cases. It depends on the particular case. There are many justifiable prosecutions where the prosecutor has not himself formed any concluded belief as to the guilt of the accused. If he is a very fair-minded man he may well say to himself. ‘ The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the Court finds him to be so ‘. Such a man would, I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is said sometimes, that in order to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting. This again is by no means always necessary. Let me give another illustration. Take the case of a fair-minded man who is personally convinced that the man is guilty but does not himself think the evidence sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself ‘I do not myself believe there is sufficient evidence, but my solicitor says there ‘is, so I feel justified in going on’. If the Judge afterwards takes the same view as the solicitor, then I should have thought that such a man would have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it.

On this topic of absence of reasonable and probable cause the following:-(a) English and (b) Madras decisions may be usefully consulted (a) Abrath v. N. E. Ry. Co. L.R. (1883) 11 Q.B.D. 440. Leibo v. Buckman (1952) 2 All E.R. 1057. Lister v. Ferryman L.R. (1870) 4 H.L. 521. (b) Sowcar Lodd Govindoss and Another Vs. Arumuga Mudali and Others, . Chenna Reddi v. Venkataswami (1919) 53 I.C. 70 : 10 L.W. 314. Vydianatha Iyer v. Krishnaswami Iyer (1911) 24 M.L.J. 515 : ILR 36 Mad 375. Mushtoorappa and Another Vs. Hanumanthappa and Another, . T.D. Karuppanna Pillai Vs. F.W. Haughtan, . Nurse v. Rustomji (1923) 46 M.L.J. 353 : AIR 1924 Mad 565. Albert Bonnan v Imperial Tobacco Co. (1929) 57 M.L.J. 558 : AIR 1929 P.C. 222 and K. Gopalakrishna Kudva Vs. Bangle Narayana Kamthy, .

We now come to malice which is the last ingredient in a suit for malicious prosecution, and that the defendant was actuated by malice in prosecuting the plaintiff has also got to be proved by the plaintiff. Malice means the presence of some improper and wrongful motive–that is to say an intent to use legal process, in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will ; it may be due to a desire to obtain to collateral advantage. The malice necessary to be established in a suit for malicious prosecution is not even malice in law such as may be assumed from the intentional doing of a wrongful act, but malice in fact–mains animus–indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody. A prosecution is not malicious merely because it is inspired by indignation or anger. On the other hand it is one on which the law relies to secure the prosecution of offenders. (Fleming at page 634.) However wrong-headed a prosecutor may be if he honestly thinks that accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. A malicious prosecution says Harper on Torts, page 586 is one that is begun in malice and if there is no malice found to exist in fact the action must fail.

Malice as stated already has to be proved as well as want of reasonable and probable cause in an action for malicious prosecution. No action will lie for the institution of legal proceedings however destitute of reasonable and probable cause unless they are instituted maliciously ; Abubucker Ebrahim and Another Vs. Maganlal K. Javeri, AIR 1944 1 (Privy Council) T.D. Karuppanna Pillai Vs. F.W. Haughtan, . The burden of proving malice lies on the plaintiff, and may be discharged by showing either what the motive was and that it was improper, or that the circumstances were such that the prosecution can only be accounted for by imputing some wrong and indirect motive to the prosecutor : Brown v. Hawkes L.R. (1891) 2 Q.B. 718. See the observations on this statement in Trobridge v. Hardy (1955) 94 C.L.R. 147. But if there is malice alone that too is not sufficient. There must be concurrence of malice and want of probable cause. A person actuated by the plainest malice may nevertheless have a justifiable reason for prosecution. On the other hand substantiating of the accusation is not essential to exonerate the accuser from liability to an action, for he may have had good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate proof. The law therefore only renders him responsible where malice is combined with want of probable cause. It is also well-settled law that the reputation of the plaintiff and the defendant will be relevant factors in deciding the existence or absence of probable cause.