Malice is a wrongful act done intentionally without just cause or excuse or an action determined by an improper motive. All acts done with an evil disposition or unlawful motive with an intention to cause injury and without a lawful excuse is malicious. Malice is not merely the doing of a wrong act intentionally, but it must be established that there was spite or ill will or any indirect or improper motive.
The word ‘prosecution’ has been defined in the Limitation Act, 1963 and in General Clauses Act. The word ‘prosecution’ includes criminal proceedings by way of appeal or revision before the District Magistrate, or a Sessions Court or High Court.
‘Prosecution’ is the institution and carrying on of the legal proceedings against a person.
A prosecution exists until terminated in the final judgment of the Court, to writ, the sentence, discharge or acquittal. The word ‘prosecution’ includes such civil actions as may be the subject of a suit for malicious prosecution. An action for malicious prosecution may lie even where the proceedings are civil and not criminal though it is the malicious preferring of an unreasonable criminal charge that is the usual foundation for the form of the action ordinarily understood by the familiar title of an action for malicious prosecution.
The term ‘prosecution’ for the purpose of tort of malicious prosecution, includes all criminal proceedings to which any oral obloquy is attracted.
Malicious prosecution is the commonest form of the test of abuse of legal procedure which is available against persons who deliberately abuse the legal process in order to harm another.
In Surat Singh v. Delhi Municipal Corporation, (AIR 1989 Del. 51), it has been cleared that in a suit for malicious prosecution in order to succeed the plaintiff must prove that following conditions have been fulfilled: (i) that the criminal proceedings were instituted by the defendant; (ii) that in doing so the defendant acted without any reasonable and probable cause; (iii) that the defendant acted maliciously; (iv) that the criminal proceedings terminated in favour of the plaintiff in his acquittal or discharge and the defendant was unsuccessful.
Absence of reasonable and probable cause for criminal prosecution is an essential pre-requisite for action for malicious prosecution.
In order to succeed in an action for malicious prosecution, the plaintiff has to prove that the prosecution ended in the plaintiffs favour and that the defendant had acted without any reasonable and probable cause and was actuated by malice in launching the criminal prosecution.
In an action for malicious prosecution, the damages would represent, first the general damages, a solatium for injured feelings and reputation; the second would be the special damages for actual damages incurred by the plaintiff as a pecuniary loss.
According to Art. 74, the limitation commences “when the plaintiff is acquitted or the prosecution is otherwise terminated.”
In Madho Lai v. Hari Shankar, (AIR 1963 All. 547), it has been held that when the cause of action is to commence from the order of acquittal, such acquittal may be acquittal in the trial Court or if there is a conviction by the trial Court and the plaintiff is acquitted either by the appellate or by the revision Court, then the cause of action arises from the date of such acquittal by the appellate or the revision Court.
When the plaintiff is discharged by the Magistrate in the criminal proceeding initiated by the defendant, then the order of discharge shall be the date on which the proceeding is terminated otherwise.