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Let us' first examine the essentials for action for malicious prosecution..

19. the action for damages for malicious prosecution is part of the common Law of England. In India the law on the subject is exactly the same as the law in England and the U. S. A. For a comparative study of malicious legal proceedings under the three systems see Ch 22 p. 850 and foil of Clerk and Lindsell on Torts Eleventh edn., (1954) Ch XXV p. 849 and foll. of Anaud and Sastri Law of Torts (1952) and Restatement of the Law of Torts as adopted and promulgated by the American Law Institute at Washington D.C., Vol. III, Ch 29 p. 379 and foil.

23. In a suit for damages for malicious prosecution the plaintiff has to prove as laid down by their Lordships of Privy Council in Mohammad Amin v. Jogendra Kumar, AIR 1947 PC 108 (E to I) (1) that the defendant has prosecuted the plaintiff, i.e., instituted criminal proceedings or certain other proceedings reflecting upon the plaintiff's honour or character; (2) that the prosecution has ended in favour of the plaintiff; (3) that the defendant has prosecuted without reasonable and probable cause, (4) that the defendant in prosecuting was actuated by malice, i.e., an indirect and improper motive; and (5) that the plaintiff when the proceedings are other than criminal proceedings has suffered special damage, unless the proceedings are such as from their very nature are calculated to injure the credit or honour of the plaintiff. To sum up in the language of 34 Am Jur 703, a malicious prosecution is one that is begun in malice without probable cause to believe it can succeed and finally ends in failure. If any one of these elements is lacking the result is fatal to the action. (Indian) Anand and Sastri Law of Torts p. 850; Ramaswami Iyer, the Law of Torts, Fourth edn., p. 317; Venkatesa lyer, Law of Torts, p. 498; (English) Clerk and Lindsell on Torts, 11th edn., p. 582; Salmond on Torts, 11th edn., p. 789; Underhill's Law of Torts, 15th edn., p. 276 et seg; (American) RcstatPinent oF the Law -- Torts, Vol. III, Section 653, p. 382; 34 Am. Jur., Malicious Prosecution, S. I, p. 703 and foil.; 38 Corpus Juris, p. 386, Section 3.

25. In order to entitle a plaintiff to succeed is a suit for damages for malicious prosecution, the first essential to be established by him is that there was prosecution of the plaintiff by the defendant. A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filed through the instrumentality of an agent or a counsel. A private person at whose instance and report the prosecution is launched by the police is a prosecutor within the meaning of the present context: Gaya Prasad v. Bhagat, ILR 30 All 525 (PC) (L). But the case would be otherwise, where the defendant merely gave an account of his honest suspicion about the plaintiff to the police, who without any further activity on his part had started a case against the plaintiff. Thus a mere informant cannot he a prosecutor. There is a sharp distinction between giving information and making. complaint upon which prosecution is based. The question whether the defendant was the real prosecutor or informant is to be determined by his conduct before and during the trial. Periya Goundan v. Kuppa Goundan, ILR 42 Mad 880 : (AIR 1919 Mad 229 (2)) (M); Manikam v. Munuswami, 29 Mad LJ 694: (AIR 1916 Mad 666) (N): Rajagopala v. Spencer &.Co. Ltd., 12 Mad LW 87: (AIB 1920 Mad 712) (O); Shanmugha v. Kandaswami, 12 Mad LW 170: (AIR 1920 Mad 789) (P). To render one liable for malicious prosecution it must appear that he was the proximate and efficient cause of putting the law in motion; some affirmative action in connection with the prosecution must be shown. Therefore witnesses cannot be sued for damages: Fakir Mohammed v. Fakir Muhomed Nanji, AIR 1932 Sind 23 (Q); 12 Mad LW 170: (AIR 1920 Mad 789) (P). For the purpose of a suit for damages for malicious prosecution, the prosecution cannot be said to have commenced unless and until a process has been issued for the plaintiff to appear: Sheik Meeran v. Ratnavelu, TLR 37 Mad 181: (AIR 1915 Mad 128) (R); Arunachala v. Chinna Muniswami, 1926 Mad WN 527 (S); Vattappa Kone v. Muthu Karuppan Servai, 1941-1 Mad LJ 200: (AIR 1941 Mad 538) (T); Sanjivi v. Koneri, ILR 49 Mad 315: (AIR 1926 Mad 521) (U). Their Lordships of the Privy Council in 51. Cal WN 723: (AIR 1947 PC. 108) (E to I), have laid down a different test, viz., whether criminal proceedings have reached a stage at which damage to the plaintiff results: See also (Indian) Afiand and Sastri Law of Torts, p. 850; Ramaswami Iyer Law of Torts, Fourth edn., p. 819: K.G. Kale, the Law of Malicious Prosecution (1930), p. 8; Miner Defamation and Malicious Prosecution (1954), Part II, Ch. II, p. 202 and foll. Venkatesa Iyer, Law of Torts (1935). Ch. XXI. p. 498 and foll. D.N. Guha, Defamation and Malicious Prosecution, p. 101 and foll; (English) Clerk and Lindsell on Torts, 11th edn., p. 8521 Sa1mond on Torts, 11th edn., p. 740. (American) 34 Am. Jur. S. 22-26, pp. 715 and foll.; Restatement of the Law, Vol. III, Ch. 29, Section 654, p. 389; 38 Corpus Juris, Section 22, p. 894 and loll.

26. In order to succeed in a suit for malicious prosecution, the second essential is that the plaintiff must establish that his prosecution by the defendant ended in his favour. The reason for this proposition is that if in the proceeding complained of the decision was against the plaintiff and was unreversed, it would not be consistent with the principles on which the law is administered, for another Court, not being the Court of Appeal, to hold that the decision was come to without reasonable and probable cause, The word 'ended' is the operative word. If the plaintiff was convicted, and the conviction was quashed on appeal, he can still sue as the proceedings ended in his favour. Where the plaintiff is convicted of an offence similar to, but less grave than the offenco with which he was charged by the defendant, the defendant: may still be liable for malicious prosecution of the graver offence. A prosecution may end favourably not only by acquittal but also end favourably by discharge, discontinuance of the proceedings excepting where it is due to the impossibility or impracticability of bringing the accused to trial or dismissal of the complaint; (Indian) Anand and Sastri, Law of Torts (1952), p. 857; Ramaswami Iyer. The Law of Torts, 4th edn., p. 320; Venkatesa Iyer, the Law of Torts, p. 501; Mitter Defamation and Malicious Prosecution, p. 223; K, G. Kale, the Law of Malicious Prosecution, p. 27; (English; Clerk . and Lindsell on Torts, Ilth edn., p. 858; Salmond on Torts, 11th edn., p. 747; (American) 34 Am. Jur, Section 27, p. 718 and foll; Restatement of the Law, Vol. III, Ch. 29, Section 658, Topic 2; 38 Corpus Juris, Malicious Prosecution, Section 47-48.