Introduction:

‘Malice’ in legal sense means an intention to cause injury to another party. The tort of malicious prosecution implies initiation of unsuccessful legal proceedings against a party, without reasonable and probable cause.

When a person files a civil lawsuit, or a prosecutor brings criminal charges against an individual without good cause, maliciously, or for an inappropriate reason, the defendant may have the right to seek justice by filing a malicious prosecution lawsuit against him. Malicious prosecution is a “tort,” which means that it is a specific wrongdoing for which a person may sue the wrongdoer for forcing him to defend himself in the original case.

Definition:

“A prosecution that occurs without probable cause and causes damage.”

Essential Elements:

  1. Prosecution by the defendant
  2. Absence of a justifiable cause
  3. Malice of defendant
  4. Termination of proceedings in favour of plaintiff
  5. Damage to plaintiff

1. Prosecution by the defendant:

a) Prosecution of plaintiff means institution of criminal proceedings against him in a court of law.

The defendant must be actively instrumental in prosecution of the plaintiff. He must not only be the initiator but also an active pursuer of such prosecution.

2. Absence of justifiable cause:

a) The prosecution of the plaintiff must be without a reasonable cause.

b) If the prosecution is based on true or reasonable grounds, the defendant is not liable.

c) A cause is reasonable if the defendant made due inquiry about the truth of the allegations against the plaintiff.

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