A PROJECT ON

Trespass - An Analysis
Submitted By
Submitted To

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH
Submitted On 22nd August, 2015

[Type the document title]

Table of Contents

Introduction
Statement of problem
Hypothesis
Acknowledgment
Research methodology
Objective
Review of literature
Essential condition
Prosecuted by the defendant
Termination of proceedings in plaintiffs favour
Without reasonable and probable cause
Prosecution by the defendant with malice
Damage
Distinction b/w false imprisonment and malicious prosecution
Conclusion
Bibliography

2
3
4
5
6
7
8
9
10
11
12
13
15
16
17
18

Page | 1

[Type the document title]

CHAPTER 1: INTRODUCTION
Trespass is an ancient set of wrongs which mainly deals with the direct, and usually
intentional, invasion of a claimants interest in either his person, his land or his goods.
Trespass was one of medieval forms of action, the second being trespass on the case or
simply case case covered injury which was consequential to a wrong but the wrong was
neither forcible nor direct. The distinction can still be seen in the law of torts today; torts
which are actionable per.se, such as trespass to land and trespass to person originate from old
forms of trespass, while those torts which require prove of damage such as negligence and
nuisance.
The law of trespass today has much of its origin in criminal law where its function is
deterrent than compensatory. For example an action will lie in trespass but not in negligence
even if the claimant has suffered no damage. This shows its usefulness in protecting civil
rights hence much of the law of trespass is the basis of a civil liberties today.
Some cases of trespass can be filed under criminal law for example trespass to the person
such as assault and battery. This occurs where a criminal offence has been committed. In such
cases the courts have powers under the Powers of Criminal Courts (Sentencing) Act 2000,
s.130 to make a compensation order.

Page | 2

[Type the document title]

STATEMENT OF PROBLEM
The tort of malicious prosecution can have a negative effect as a just accuser might be
deterred in instituting criminal proceedings against a person because of fear of damages for
malicious prosecution.

Page | 3

[Type the document title]

Hypothesis

Page | 4

[Type the document title]

Malicious prosecution may deter an innocent from filing a
complaint.

Acknowledgement

I would like to thank Mam Madhurima De Sarkar for offering this subject, Malicious
prosecution and for her valuable guidance and advice.

Nikhil Parthsarthi
Semester 3
Page | 5

[Type the document title]

Research Methodology

This research paper is descriptive and analytical based on secondary sources, i.e.,

books and electronic sources (internet).

Books and other references have been primarily helpful in giving this project a firm

structure. Websites, dictionaries and articles have also been referred.

Footnotes have been provided wherever needed to acknowledge the source.

Page | 6

[Type the document title]

Objective

To study the concept of Malicious prosecution

To know contribution of various factors to constitute malicious prosecution.
To highlight the difference between false imprisonment and malicious prosecution.

Review of literature
Page | 7

[Type the document title]

1. Singh S.P.,Law of Torts
2. Law of torts, RK Bangia

CHAPTER 2: Essential conditions

Page | 8

[Type the document title]

There are certain essential conditions that need to be fulfilled in order to prove the tort of
malicious prosecution. This can be explained with the help of an example. Suppose, A
maliciously and without any reasonable cause, prosecuted B for theft. B was acquitted by the
court as an innocent person. Now B has a remedy against A. In a suit for damages for
malicious prosecution, the defendant must prove the following essentials:
(a) That he was prosecuted by defendant.
(b) He was prosecuted without any reasonable and probable cause.
(c) That defendant prosecuted him maliciously.
(d) The proceeding terminated in favour of the plaintiff.
(e) Plaintiff suffered damage as a result of such prosecution
All the above are discussed in detail in the following chapters.

Page | 9

[Type the document title]

CHAPTER 3: Prosecuted by the

Defendant
Here two conditions are very essential, plaintiff has to prove
1. He was prosecuted
2. The defendant prosecuted him.
Prosecution
Prosecution means to set the law in motion against another person. And it can be set in
motion when an appeal is made before a person clothed with judicial authority. Thus,
prosecution normally means criminal proceedings and not civil proceedings. But for the
purpose of this tort it also includes any other proceedings which reflect plaintiff honor or
character. Eg. Liquidation and bankruptcy proceedings. The question is at what stage the
prosecutions commences? It is a settled law that it doesnt commence when a complain
ismade to police authorities and police starts its proceedings .In the case bolandanda
pemmaya vs ayaradara
,the facts were defendant lodged a complaint in the police station alleging the fact that the
plaintiff have committed theft in his house. The sub inspector of the police station called both
and recorded the statement. Heals searched the plaintiff house and found complaint as false.
He filed his report. Plaintiff filed a suit for damages for malicious prosecution. Rejecting the
contention of the plaintiff. The court held that mere filing of the before the police is not
amount to prosecution it starts when some judicial authority is set in motion as a consequence
of such complain.
The question arises that has the proceedings reached to a place where there is damage to the
plaintiff.

Prosecution of plaintiff by the defendant

It is for the plaintiff to prove that the defendant instituted the prosecution against him.
Instigating a prosecution is different from act of giving information on the basis of honest

Page | 10

[Type the document title]

suspicion.1However, if the story told is false to the knowledge of the teller, and the
prosecution is launched by the police without any further investigation, he will be
prosecuted.2

CHAPTER 4: Termination of proceedings

in Plaintiffs favor
If the prosecution would result in plaintiffs conviction,no suit would lie against the
defendant.But where the prosecution ended in favour of the plaintiff, he has a cuse of action
against the defendant for such prosecution. The prosecution ends in plaintiffs favour when
he shows that
1. He was acquited by the court either on merit3 or on tehncal grounds4
2. His conviction was quashed or set aside by the appellate court5
3. His prosecution was discontinued or withdrawn by the defendant.
4.

1 R Dayal v Kallu,1940 AIR 213

2 AIR 1974 P&H 215
3 Berry v BTC,1962 1 QB 305
4 Wicks v Fentham, 1791 4 TR @247
5 Herniman v Smith, 1938 AC 305
Page | 11

[Type the document title]

CHAPTER 5: Without resonable and

probable cause
The distinction between resonable and porbable is difficult to make. It is almost similar
but since it has been used for a ong time the practice continues.
Resonable and probable cause has been defined by Hawkins J. in Hicks and Faulkner in
these words : an honest belief in the guilt of the accused based upon a full conviction,
founded on resonable grounds, of the existance of a state of circumstances, which, assuming
them to be true, would resonably lead any ordinary prudent and cautious man placed in that
position of the accuser,to the conclusion that the person charged was probably guilty of the
crime imputed.
Basically it means honest belief in the guilt of the accused based upon resonable ground.
Normally, the plaintif has to prove that te defendant, without resonable and probable cause,
prosecuted him, but there s one exception to this rule- where the defendant claims to have
seen the plaintiff commiting the crime, and the trial ends in acquital on merit.
In the case Girija Prasad Shankar v Umanshankar Pathak6 , the plaintiff Umashankar was an
advocate and also a Jan Sangh leader. Jan sangh started an agitation due to food security in
Panna district.Girja Prasad , a sup inspector, was depted to control the crowd. Girja Prasad
stated while he was being assulted, his revolver got fired. The same day he loged an FIR that
he was assulted, his wristwatch was snatched and that Umashankar was present at the scene
and was instigating the crowd. The court found that the complaint was false and at that time
Umashankar was not there but in a case beore the civil judge.
Girja Prasad was, therefore, acting without resonable cause and trying to use the machinery
for an improper purpose of falsely imlicating the plaintiff. He was held liable for malicious
prosecution.

6 AIR 1975 MP 79
Page | 12

[Type the document title]

CHAPTER 6: Prosecution by the

defendant with malice
It is for the plaintiff to prove that the defendant acted, with malice intention. Malice means
indirect
And improper motive as said in Jogendra v Lingraj.7 It is to be established by inference
from circumstances and cannot be proved by the direct evidence. Intention of the man even
the devil knoweth not. Infact the jist of the action of malicious prosecution is malice. Malice
and without reasonable and probable cause are two distinct ingredient for an action for
malicious prosecution which the plaintiff must prove. In abdul majid v. harvans choubey,
the station officer conspired with two other defendants concoctod a story that plaintiff was
involved in a dacioty and the hansuli used in dacoity was recovered from plaintiffs house.
The court acwuited the plaintiff on the benefit of doubt . the plintiff brought an action
against the defendant. The court found that the defendants were actuated by improper ans
wronful motive to prosecute the plaintiff on concocted story. The court hels that the
defandants were liable.
But where there is resonable and probable cuse for intituting prosecution the defendant will
not be liable.thus in Bhogi lal v Saroj behen8, B agreed to sell his house to A fo 15000 rs and
accepted 2000 as earnest money from A. late A came to know that house was already
mortgaged by B and what B told at the time of agreement was false.he instituted criminal
proceedings against B for cheating under setion 420 IPC but the court aquitted him, B then
filed a case against A for malicious prosecution. The court held that A had without malice
instituted the proceedings believeing honestly that he had been cheated.
Thus it may be stated that any motive other than that of simply instituting a prosecution for
the purpose of bringing a person to justice is a malicious motive on the part of the person
who acts in that way.9
7 AIR 1970 Ori 91
8 AIR 1979 Guj 200
9 M.L.Ahir Gayawal v Sahai P. Dhami
Page | 13

[Type the document title]

It may be added that it is not necessary that there should be malice at the time of laumching
the prosecution. Even at the subsequent stage if the prosecution become malicious, he may
be liable for malicious prosecution.
It may also be noted that a corporation is liable to an action for malicious prosecution
although it has no mind of its own. The liability is based on the principle of agency.

Page | 14

[Type the document title]

CHAPTER 7:Damage
The plaintiff has to prove that he has suffered damage as a result of his prosecution. There are
three types of damages10 and the proof of any one would be sufficient to support an action for
malicious prosecution. They are
(A) The damage to a mans fame i.e. where the plaintiff has been accused of scandalous
matter.
(B) Damage to the person i.e. when the person is put in danger of losing his life, liberty or
limb.
(C) The damage to mans property i.e., where he is forced to spend money to defend
himself of the crime of which he is prosecuted.
It must be noted that the damage must be the reasonable result of prosecution and not too
remote. In Sova Rani Dutta v Debabrata Dutta11, the defendant logged a false FIR against the
plaintiff and his sister alleging theft of her ear rings. The defendant knew that the complaint
was false and that the police would handcuff the plaintiff. The defendant was held liable for
malicious prosecution and the humiliation suffered by the plaintiff due to handcuffing.

10 Saville v Roberts
11 AIR 1991 Cal 185
Page | 15

[Type the document title]

CHAPTER 8: Distinction between false

imprisonment and malicious prosecution
Following are the main points of distinction between false imprisonment and malicious
prosecution are:
1. False imprisonment is wrongfully restraining the personal liberty of the plaintiff while
malicious prosecution is the unlawful use of legal procedure to bring about legal
confinement.
2. The personal liberty of plaintiff is wrongfully restrained by private individual in false
imprisonment whereas arrest under malicious prosecution is secured by judicial
sanction.
3. The defendant under false imprisonment must affirmatively prove the existence of
reasonable and probable cause as justification where as the plaintiff has to prove its
non existence in malicious prosecution.
4. Malice is an essential ingredient for an action of malicious prosecution but malice
may not be proved for false imprisonment.

Page | 16

[Type the document title]

CHAPTER 9: Conclusion
Malicious prosecution is a common law intentional tort. Criminal prosecuting attorneys and
judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial
immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute
an abuse of process. The parties, who have abused or misused the process, have gone beyond
merely filing a lawsuit. The taking of an appeal, even a frivolous one, is not enough to
constitute an abuse of process. The mere filing or maintenance of a lawsuit, even for an
improper purpose, is not a proper basis for an abuse of process action.
Thus the above mentioned hypothesis stands false as there is enough procedural law and
firmly laid down principles that protect and individual from malicious prosecution as well as
the fear of filing a complaint thinking they would be charged of malicious prosecution.

Page | 17

[Type the document title]

BIBLIOGRAPHY
CASES

1. Dayal v Kallu,1940 AIR 213

2. Berry v BTC,1962 1 QB 305
3. Wicks v Fentham, 1791 4 TR @247
4. Herniman v Smith, 1938 AC 305

WEBSITES
1.
2.
3.
4.
5.
6.

www.lawnet.com
www.legallyindia.com
www.clatapault.com
www.lawcentre.com
www.lawbritinica.com
www.lawted.com

Page | 18