Malicious Prosecution: Balancing Justice and Abuse of Process of Law - Part I

The principle of malicious prosecution serves as a crucial safeguard against the misuse of legal procedures. It offers redress to individuals subjected to unfounded legal actions initiated with malice and devoid of probable cause. This tort seeks to strike a compromise between two conflicting principles: the freedom individuals should have in holding criminals accountable and the necessity of preventing the initiation or continuation of false allegations against innocent individuals. In the case of West Bengal State Electricity Board v. Dilip Kumar Ray, the Supreme Court defined malicious prosecution as “a judicial proceeding instituted by one person against another, for wrongful or improper motive, and without probable cause to sustain it.”

In India, several instances of fraudulent litigation stemming from marital disputes and civil issues to white-collar crimes have been reported on various occasions. Additionally, instances of unlawful arrests by law enforcement agencies are also a part of the said scenario. Therefore, the need for a comprehensive legal framework to address malicious prosecution in India is the need of the hour. Although malicious prosecution as a tort and a criminal offence finds mention in the Indian legal framework, a comprehensive legislation to prosecute against those erring complainants and the State who investigate and pursue the malicious proceedings, does not explicitly exist as of date. In several instances, State officials and private complainants frequently get away with making false claims. This situation is worsened by the slow and ineffective process of prosecuting these offenses over trial, and the hesitancy of the overburdened trial courts to take quick and decisive action.

Pertinently, ‘malicious prosecution’ neither finds any mention in the new Criminal procedure law, that is, the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), nor was defined in the erstwhile Code of Criminal Procedure, 1973 (Cr.P.C.). However, Section 248 of the Bharatiya Nyaya Sanhita, 2024 (BNS) and Section 211 of the erstwhile Indian Penal Code, 1860 (IPC) prescribe punishment for the offence of falsely charging someone of an offence, with the intent to injure the said person. The said provision enables a person to proceed against an individual who has falsely initiated a criminal proceeding against them. However, the said Section does not enable a person to proceed against the State or public officials in such situations. This creates a vacuum in the legislative framework for malicious prosecution. Despite the recognition by the Hon’ble Supreme Court and various High Courts that malicious prosecution is an infringement on an individual's right to life and liberty, there has been little legislative action taken to address this issue.

It merits mention here that, a criminal proceeding can only be taken to its fruition by law enforcement agencies. Once a complaint is lodged with a law enforcement agency, it is up to them to decide whether or not the said complaint has any merits. However, we see several instances where the law enforcement agencies investigate complaints that have no basis, for reasons best known to them. Further, in the name of investigation, accused named in the malicious proceedings is harassed, suffers mental agony, reputational harm, unlawful incarceration, etc. Similarly, there are also instances where certain law enforcement agencies, due to ‘extraneous considerations’ suo motu initiate investigations against individuals, without a shred of evidence to corroborate such an offence and support the investigation. Hence, the liability of law enforcement agencies in malicious prosecution cannot and should not be overlooked.

As such, when pursuing a claim for malicious prosecution, the plaintiff or a person aggrieved of the malicious prosecution must establish certain essential elements.

Firstly, he must prove that the defendant/complainant had initiated legal proceedings against him by following due process under law, as merely presenting a complaint or dispute with the competent authorities does not constitute prosecution, which also excludes proceedings like departmental investigations or inquiries by a disciplinary body.

Secondly, it must be shown that the defendant pursued such legal proceedings without a reasonable, probable, or rational basis/ cause. The evaluation of the absence of reasonable or probable cause should be grounded on all the information presented to the court. It should be noted that the withdrawal of a prosecution or the acquittal of the accused does not automatically imply a lack of reasonable and probable cause, the same must still be proven by the plaintiff. This principle was reaffirmed by the Madras High Court M Abubaker v. Abdul Kareem. It is also to be noted that even if some accusations are backed by probable cause while others are not, the defendant can still be held accountable for malicious prosecution. The responsibility of proving this element rests on the aggrieved party/plaintiff.

Thirdly, the plaintiff needs to establish that the defendant had malicious intentions when pursuing such legal proceedings. In the case of Bank of India v. Lekshmi Das, the apex court emphasized the importance of establishing malice in situations where there is no clear and logical purpose. Malice can be inferred from the absence of sincere conviction in the accusation. A cause of action for malicious prosecution may also arise if the prosecutor, initially innocent, later acts with malicious intent.

Fourthly, the proceedings must have terminated in favour of the plaintiff. It is to be noted here that no action for malicious prosecution can be initiated while legal proceedings are ongoing. The termination of proceedings against the plaintiff does not necessarily mean that the Court must come to a finding that the plaintiff is innocent. Rather, it can be that the Court has not come to a finding that the plaintiff is guilty.

Finally, the plaintiff must prove that the plaintiff who was accused or related to the malicious prosecution had suffered injury, damage, or harm because of such prosecution.

Despite its intended purpose, this legal principle carries significant drawbacks such as its lack of power to proceed against the most distressing forms of legal harassment, which is the wrongful implication of innocent individuals in false cases by law enforcement agencies.

Recently, the Delhi High Court in the case of Ashish Bhalla v. Vishvendra Singh while allowing an application for rejection of a plaint instituted for seeking damages for malicious prosecution held that “For the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any oral obloquy is attached.”

Lord Wilson in Crawford Adjusters v. Sagicor General Insurance (Cayman) Ltd interpreted ‘malice’ to state that “the malice is the foundation of all actions of this nature, which incites men to make use of law for other purpose than those for which it is ordained.”

The police often justify this by claiming they are obligated to register and investigate any complaint they receive, suggesting they must scrutinize every detail reported to them. However, the law disagrees with the same as observed in various precedents.

The Supreme Court, in the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., clarified that police discretion is not unlimited and that they cannot investigate an FIR if it does not disclose a cognizable offence. Similarly, in the case of Lalita Kumari v. Govt. of U.P. & Ors., the apex court ruled that while the police must register an FIR for cognizable offences, they are not required to investigate every such FIR if there are insufficient grounds. In the case of Joginder Kumar v. State of UP, it was established that arrests should not be routine and should be subjected to proper investigation.

An infamous instance of wrongful prosecution against law enforcement is the investigation into the plot that resulted in the unjust persecution of former ISRO scientist Nambi Narayanan during the 1994 spy scandal. The Supreme Court in the case of S Nambi Narayanan v. Siby Mathews & Ors. had assigned Justice DK Jain to investigate the circumstances surrounding the false accusations against Nambi Narayanan by the Kerala Police, which labelled him as a "spy and traitor." The CBI had previously determined that the Kerala Police wrongly accused the scientist, who held a prominent position in ISRO during that period. The Supreme Court affirmed these findings and instructed the Jain committee to identify and hold the law enforcers responsible for fabricating the charges accountable, thereby highlighting the negative consequences of sensational journalism and political infighting, resulting in damaged reputations and ruined careers for multiple individuals.

About the authors: Gaurav Nair is the Managing Partner of Saga Legal. Ishwar Ahuja is a Principal Associate and Bhairavi SN is a Senior Associate at the Firm.

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