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Malicious Prosecution: An Effective Tool to Achieve Minimalism in Pendency of Cases

Analysing the scope of malicious prosecution in the light of the precedential and legal set up.


In India, when a person is prosecuted by the criminal justice system, all he can do is defend himself. In the event of successfully coming out clean from the due process of law, he is just left with the order of the Court. The mental stress and agony, the loss of reputation, the loss of personal liberty in case of arrest and detention, loss of livelihood and earning, the costs of defending the prosecution, the physical hardships etc are not accounted for. The victim of vexatious or malicious litigation has no legal recourse to protect himself against such abuse of process of law.

Supreme Court Precedent on Reputation and Allied Concepts

The Supreme Court of India has said that Right to Reputation is part and parcel of Right to Life and Personal Liberty guaranteed by the Constitution of India[1]. The same was reiterated by the Hon’ble Supreme Court in 2014 in the case of Umesh Kumar v. State of Andhra Pradesh[2]. Also in January, 2014, the Apex Court while deciding a case observed that instances of police machinery filing false charges is increasing day by day, and such cops should be punished[3].

The Supreme Court reiterated in July, 2014 that there is a rising trend amongst the women to file false cases under Sec. 498A of Indian Penal Code, and that the police should not make automatic arrests in such cases as it permanently scars the reputation of the person.[4] In Subroto Roy Sahara v. Union of India & Ors.[5], the Hon’ble Apex Court made a suggestion to the legislature to formulate mechanism that one who initiates and continues senseless litigation should pay for the same. From this, it is very apparent, that even the judiciary of our country is feeling the need to curb malicious prosecution.

Failure of Criminal Justice System

The basic purpose and the soul of the criminal justice system of our country was to punish the criminals, and create deterrence among them, so as to provide for a law abiding society for the common man. However, over the years, the very soul of this justice system has been lost. It is no longer effective in punishing the culprits. Instead it is increasingly being used to harass the common man.

There are endless citizens in our country who face the judicial system and prosecution for years together, and in the end it turns out that there was no merit in the case. For a matter of fact, as of today, in countless cases recourse is taken to criminal proceedings only as a way of ‘pressure tactic’ or to illicit a ‘compromise’. In the end, the real victim turns out to be the accused, as he has to face the complicated and time consuming justice delivery system of India. Action for malicious prosecution will be the apt tool to fight this menace.

Concept of Malicious Prosecution

The concept of malicious prosecution recognises the individual’s interest in not being subjected to unjustified litigation. Litigation, especially criminal, brings along with it great humiliation, harassment, annoyance, loss of reputation and loss of livelihood amongst other things. In order to curb the unjust litigation, malicious prosecution plays an important role.

One of the earliest cases to be decided on the concept of Malicious Prosecution was Savil v. Roberts [6]. The said case laid down a three-part test for malicious prosecution: damage to the person, damage to the property and damage to the man’s fame. Any litigation which has been intentionally initiated to accomplish either of these three tasks, would be a malicious prosecution. An action, for damages for being subjected to such a litigation, is called an action for malicious prosecution.

What can be Done

It is the need of the hour to address this issue. It is necessary to add legal provisions which act as an effective deterrent for such ‘malicious prosecution’ and compensates the people for their loss of reputation, earnings, livelihood, and the trauma. This could possibly be achieved by adding a chapter dedicated to malicious prosecution by way of amendments to the Code of Criminal Procedure, or promulgating a new legislature on the following lines –

  • The person initiating malicious prosecution (aggresor) is punished with imprisonment term and/or fine, equivalent to the punishment mentioned for the charges levelled by him in the malicious prosecution.
  • Loss of reputation and livelihood be compensated by imposing additional fine on the aggresor by computing the amount after taking into consideration the income, qualification and social status of the victim of malicious prosecution. The said amount can be secured by attaching the bank accounts or property of the aggresor, if the payment is not made forthwith.
  • Immunity should not be given to the prosecuting and investigation agencies who falsely prosecute any person. In a country like ours, where even the highest judicial courts are held accountable for their actions, this is the least we can do.

Malicious Prosecution: A Tool to Achieve Minimalism

Various governments over the years in India have promised to curb the pendency of cases in our courts. However, none have been successful in delivering on this promise. The essential reason for the pendency is the complexity on one hand, and the easy and free initiation of criminal proceedings without any penal or punitive action for false initiation of proceedings on the other hand. Formulation and strict implementation of provisions of Malicious Prosecution would aid in reducing the pendency to a great extent, as people would be very cautious before initiating criminal proceedings. As a result, a great percentage of cases would never be filed thereby reducing the burden of the judiciary. In return, the judiciary can focus all its resources on genuine cases due to which the disposal of the same would be much quicker.

Malicious Prosecution has been largely implemented effectively in countries like Canada and United States of America to curb malicious litigations. Specifically in United States of America, the implementation of the law of Malicious Prosecution is so stringent, that damages amounting to millions of dollars are to be paid if a person initiates a malicious prosecution. As a result, people think twice before initiating any legal proceeding thereby protecting innocent citizens as well as saving the precious time of the judiciary. This ensures that no superfluous and redundant litigations flood the court, thus proving to be truly minimalistic in nature.

Originally published at on February 23, 2017.

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[1] Deepak Bajaj v. State of Maharashtra and Ors, AIR 2009 SC 628. The judgment was delivered by Altamas Kabir J. & Markandey Katju J. on 12th November, 2008 in Writ Petition(Crl) 77 of 2008.

[2] 2014 ALL SCR 661.

[3] The Apex Court was hearing a case related to an all-woman police station in Pollachi, Tamil Nadu. P.Sathasivam C.J. & J.Chelameswar J. heard the case.

[4] Arnesh Kumar v. State of Bihar & Anr., Criminal Appeal №1277 of 2014 and Special Leave Petition(Crl.) №9127 of 2013 (Supreme Court, 2/7/2014)

[5] 2014 Cri.L.J. 4172.

[6] 91 Eng. Rep. 1147 (1698)


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