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What Is a Malicious Prosecution?

Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. The article elucidates the essentials of a malicious prosecution suit, its remedies, and the stages of a civil proceeding. 

By: Hanoon Vahab, 3rd Year, BBA LLB, Geeta Institute of Law.

What is Malicious Prosecution?

Malicious Prosecution is a tort of initiating a criminal prosecution or civil suit against another party with malice and without probable cause.

It is also an action for damages based on this tort brought after the termination of the proceedings in favor of the party seeking damages.

Who can file a lawsuit on Malicious Prosecution?

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 favor of the present plaintiff.
  3. That the prosecution was instituted against him 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 the safety of a person or the security of his property.

A suit of Malicious Prosecution contains:

  1. Name of the Court
  2. Name and Addresses of the parties between whom the dispute arose
  3. Subject (a brief statement telling about the sections and orders under which the jurisdiction of the court is evoked)
  4. Main Content or submissions made by the plaintiff
  5. Verification from the plaintiff stating that the contents of the plaint are true and correct.

Remedies for Malicious Prosecution:

Malicious Prosecution can cause a wide range of injuries, whether it’s from unsubstantiated criminal charges or a bogus civil claim.

In either case, the plaintiff may claim compensatory and sometimes punitive damages.

Compensatory damages consist of both the actual damages that were a direct result of the malicious prosecution (which may include pain and suffering and other non-monetary injuries) and special damages that identify quantifiable monetary losses such as lost earnings, additional domestic costs such as childcare, etc.

Malicious Civil Proceeding:

  • An action will not lie for maliciously and without reasonable and probable cause instituting the suit, the reason stated to be is that such a case does not necessarily and naturally involve damage to the party sued.
  • The civil action which is false will be dismissed at the hearing.
  • The defendant’s reputation will be cleared against all imputations made against him and he will be awarded costs against the opponent.

The law does not award damage for mental anxiety, or extra costs incurred beyond those imposed on unsuccessful parties.

Stages of a Civil Suit:

  • Pre Filing: The pre-filing stage is when the dispute arises and the parties make demands, try to negotiate the matter between them without taking a legal recourse. However, if they fail to resolve, then the parties prepare for the possibility of a court action.
  • Initial Pleading: At this stage, one party files papers/documents i.e., a complaint to start the court action, and the other party files its response to such complaint i.e., a motion or an answer.
  • Discovery: At this stage, both the parties exchange documents and responses filed by them in court and learn about the strengths and weaknesses of the other side’s case.
  • Pre- Trial: At this stage, both the parties start preparing for trial, they get their evidence and witnesses in order.

Even at this stage, they might engage in some out of court settlement conference, after such an attempt the parties may file motions with the court to resolve the case or to limit the issues for trial.  

  • Trial: At this stage, the case is heard by the judge or a jury (which may last for a couple of hours or a couple of months, depending on the complexity of the case), witnesses are examined, the evidence is presented, and the case is eventually decided and judgment is pronounced.
  • Post-Trial: At this stage, one or both of the parties might file an appeal challenging the judgment passed.

Plaintiff and Defendant in Malicious Prosecution:

In the case of malicious prosecution, the defendant becomes the plaintiff and the plaintiff becomes the defendant.

If the plaintiff filed a suit against an innocent defendant with malice intention, the innocent defendant becomes the plaintiff and the plaintiff becomes the defendant.


Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. To succeed, the plaintiff must prove that there was a prosecution without any just and reasonable cause, initiated by malice, and the case was decided in the plaintiff’s favor. It is necessary to prove that damages were incurred by the plaintiff as a result of the prosecution. The burden of proof rests on him. He has to prove the existence of malice.

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