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CASE NO.:

Appeal (civil) 5188 of 2006

PETITIONER:

West Bengal State Electricity Board

RESPONDENT:

Dilip Kumar Ray

DATE OF JUDGMENT: 24/11/2006

BENCH:

ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No. 23556 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

Challenge in this Appeal is to the order passed by a

Division Bench of the Calcutta High Court dismissing

appellant's appeal questioning correctness of the order passed

by a learned 7th Assistant District Judge at Alipore, 24,

Parganas (South). By the judgment of the trial court the

appellant and its functionaries were held to be liable to pay

sum of Rs.1,00,000/- i.e. Rs.50,000/- for harassment of the

plaintiff-respondent no.1 in this appeal and Rs.50,000/- for

loss of his reputation. The High Court upheld the judgment

and decree of the trial court.

Filtering out unnecessary details the background facts

are as follows:

Respondent no.1 was an employee of the appellant No.1-

Board and disciplinary proceeding was initiated against him

and a First Information Report (in short the 'FIR') was lodged

against him and others per alleged misconduct and

commission of various offences. Initially, the respondent No.1

was placed under suspension for alleged acts of misconduct

while functioning as the Superintending Engineer, pending

investigation drawal and disposal of the disciplinary

proceedings against him. Since no charge sheet was issued

within a period of four months a writ petition was filed by the

respondent No.1 for quashing departmental proceedings. The

writ petition was disposed of directing the Board to issue the

charge sheet. Accordingly the charge sheet was issued on

17.1.1986 containing 10 charges. Respondent No.1 submitted

his reply to the said charge sheet inter alia denying and

disputing each and all of the charges leveled against him. He

prayed for permission to inspect certain documents and to

take copies thereof. Since the said prayer was not accepted,

another writ petition was filed on 13.9.1986 before the High

Court. In the said writ petition order passed by the High Court

was with to the effect that the enquiry should continue upon

proper inspection being granted to all documents for which

inspection had been offered, excepting three items. It was

further directed that the enquiry should commence after grant

of proper opportunity to the respondent no.1 in accordance

with law. It was, further directed that the enquiry should be

completed as expeditiously as possible preferably within six

months from the date of commencement of the enquiry.

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Respondent No.1 continued to make grievance about denial of

opportunity and on 10th September, 1986 purportedly written

statement of defence in reply to the charge sheet was filed. By

order dated 12th December, 1986, the respondent no.1 was

informed that his reply was found unsatisfactorily and it was

decided to hold an enquiry. Subsequently enquiry officer was

appointed and a presenting officer was also appointed.

However, the enquiry officer appointed originally was replaced

because of respondent no.1's allegations of bias.

Another writ petition was filed by the respondent No.1 for

quashing the proceedings. The High Court directed the

appellant to complete the enquiry by 15th May, 1987. It was

clearly indicated therein that if there is default in completing

the enquiry within the stipulated time, it would be presumed

that the Board was not interested to proceed with the matter

so far as the respondent no.1 is concerned, and the order of

suspension would stand quashed. On an application moved,

the time for completion of the proceeding was extended by two

months. The enquiry officer concluded the proceeding on 1st

June, 1987. He submitted the report on June 8, 1987, with

the finding that charges Nos. I, IV, VI, VII, VIII and IX were not

established. However, the charges Nos. II, V and X were

established while charge No. III was partially established.

Second show cause notice was accordingly issued proposing

several punishments. A writ petition was filed challenging the

enquiry proceeding, enquiry report and the second show cause

notice. The only ground taking during the hearing of the writ

petition was that the respondent No.1 who was the writ

petitioner had not been given reasonable opportunity of

hearing and thus natural justice was denied to him. Further

he was not given access to several vital documents. It was

contended that the findings recorded by the enquiry officer

were perverse and no reasonable person could have come to

such finding on the basis of materials on record. The second

show cause notice betrays the complete non-application of

mind. In any event the punishment proposed was

disproportionate with the offence alleged to have been

established in the enquiry.

The stand of the present appellant opposing the writ

petition was that all relevant documents have been produced.

Respondent No.1 with the sole object of delaying the

proceedings had filed writ petitions at different points of time.

Materials on record clearly established misconduct. Therefore,

grievances of the writ petitioner cannot be entertained. The

High Court after considering the rival stand and materials on

record ultimately came to hold as follows:

"To sum up: the enquiry proceedings were

vitiated because the petitioner was not given

reasonable opportunity of being heard. The

petitioner was not given inspection of several

vital documents which prejudiced his defence.

The findings of the Enquiry Officer were

vitiated being perverse. The punishment

proposed to be imposed upon the petitioner

was determined without considering the

service records of the petitioner which is

contrary to the provisions of Regulations 63."

The writ petition was accordingly allowed and certain

directions were given inter alia directing that the respondent

No.1 was to be allowed to retire on 28th February, 1989 and all

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retrial benefits were to be paid to him within three months of

the retirement. The reasons for holding the enquiry

proceedings vitiated were indicated as follows:

"In that view of the matter no further

proceedings shall be initiated against the

petitioner. The suspension order was issued

on 30th July, 1985 and the petitioner had to

move this Court twice, firstly for a direction

upon the respondents to issue a charge sheet

and secondly for completion of the proceedings

within a reasonable time. The charge-sheet

was only issued on January, 17, 1986 and the

enquiry proceeding was concluded on June

1987. The report of the Enquiry officer was

submitted on June 6, 1987 and thereafter the

impugned second Show cause notice was

issued on June 19, 1987. On the facts and in

view of the findings as aforesaid the order of

suspension cannot be sustained and shall

stand revoked. The petitioner shall be treated

as on duty for the entire period of suspension

for all purposes. He shall be paid all his arrear

of salaries after adjustment of subsistence

allowance already drawn within two weeks

from the date of communication of this order."

It is not in dispute that the directions given by the High

Court in the writ petition have been carried out. Subsequently

the respondent No. 1 filed a civil suit before the Assistant

District Judge, Alipur, claiming damages for the institution of

disciplinary proceedings against him by the appellant and also

the newspaper which purportedly made publication of certain

news items. The suit was registered as Money Suit No.3 of

1990 and was subsequently re-numbered as Money Suit No.2

of 1995. The suit was filed on 12.5.1990. After referring to

details of the departmental proceedings the following

averments in the plaint were made:

"The plaintiff submitted that the defendant

had with malafide intention and to lower the

Plaintiff's reputation and prestige in the

estimation of the public brought false charges

against the Plaintiff illegally suspended him

from service. It has been clearly held by the

Hon'ble High Court at Calcutta in C.O. No.

5644(w) of 1987 that it has not only affected

his reputation but also visited him with

serious civil and pecuniary consequences.

The plaintiff submits that he has suffered

great mental shock on account of such

humiliation at the hands of the defendant Nos.

1-3 after having completed his long spell of a

brilliant career in service. The Plaintiff had to

engage reputed barristers and advocate at

different stages of litigation for which the

plaintiff had to spend a huge sum of money

with much difficulty. The plaintiff, therefore,

claims Rs.5,00,000/-only as compensation for

defamation.

The defendant Nos. 6-9 have been made

parties as they published the defamatory news

against the Plaintiff without even trying to

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ascertain the truth from the plaintiff. The

defendant Nos. 4-5 are made parties as they

are main instigators in suspending the plaintiff

on absolutely false charges."

The prayer was to the following effect:

"The plaintiff, therefore, prays for a

decree jointly and severally against the

defendants for :

A recovery of the sum of Rs.5,00,000/- as

compensation of damages;

Costs of suit;

Some other relief or reliefs."

The trial court decreed the suit inter alia with the

following findings :

"The exhibit 12 is the certifies copy of the order

dated 13.6.1996 passed by the Hon'ble High

Court at Calcutta in C.O. No. 7164(W) of 1986

issued by the Hon'ble Court on the application

of the plaintiff. In this order it is stated that

the learned Government pleader Mr. Narayan

Gupta for the Defendant Board submitted that

there existed no preliminary enquiry report on

the subject covering the alleged misconduct or

breach of discipline. It is, therefore, clear that

without holding preliminary enquiry the

plaintiff was suspended and the charges were

framed against him. In the judgment, exhibit

14, passed on 9.2.89 by the Hon'ble justice

Shri Ajit Kumar Sengupta of the Calcutta High

Court in C.O. No. 5644(w) of 1987 issued by

the Hon'ble Court on the writ application of the

plaintiff held that the plaintiff should not have

been suspended on the fact of the case. It is,

therefore highly probable that the probable

that the plaintiff was suspended for

extraneous reasons."

The plaintiff- respondent No.1 was held entitled to

damages of Rs.50,000/- for harassment and another

Rs.50,000/- for loss of his reputation. Interestingly it was

held as follows:

"There are no evidence to say actually who

were the officers of the defendant No. 1 Board

abused the power vested in them to put the

plaintiff in trouble. Practically an individual

cannot prove it. Only a high power Enquiry

can reveal the truth, but this Court is not

competent to direct such enquiry. There is no

evidence to prove that the defendants Nos. 2

and 3 made to publish the fact of the plaintiff's

suspension in newspapers. For want of

evidence the claim against the defendant No.1

West Bengal State Electricity Board and the

same is dismissed without cost against the

remaining defendants."

Appeal was filed by the appellant before the Calcutta

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High Court which as noted above dismissed the appeal.

Certain observations which are relevant are to the following

effect.

"The said judgment was no doubt relied upon

by the learned Judge decreeing the suit. He

held that it was highly probable that the

plaintiff was suspended for extraneous

reasons.

Technically, it was said that the plaintiff was

not entitled to damages for defamation.

We are of the opinion that the newspapers

being exonerated from the charges of

defamation along with the officers of the Board

who were alleged to have forwarded the

information to them, does not mean that the

Board itself can be relieved from the charge of

causing loss of reputation of the Plaintiff.

Which might take months or years, get back

all his arrear pay and seniority. But is this a

true recompense of all that had happened to

him in the meantime? If say, he has been

under suspension for four years as here, his

children will tell their mates in School or

College their father is innocent but has been

proceeded against wrongfully; he will answer

at all social gatherings shortly and

sympathetic questions about the stage of the

disciplinary Enquiry.

In our opinion, the suit was maintainable and

properly decreed. There can remain no doubt

on the basis of the findings of fact that the

plaintiff had suffered a grievous wrong. The

limitation in English Courts on the basis of the

law prevailing in England do not extend and to

the Indian Courts. Just as a criminal case

puts the heavy machinery of the Law against

an accused, so does a disciplinary proceeding

but the heavy machinery of a State of other

authority against the person accused of

Service offence. If the State employer is unable

to show that there was any reasonable cause

or justification for the proceedings if the

findings are found at certain stages to have

been even perverse then and in that event, the

technical conclusion is, that the employee has

been made the victim of a proceeding, the

cause for which was not a genuine inquiry into

the conduct of the petitioner. What the other

extraneous cause was if any, would be for the

employee to allege and the employer to show

as non-existent. If no causes is shown, the

court is compelled to conclude that the cause

was extraneous and not worth bringing out

into the open public scrutiny. The present

trend of the law is to allow a remedy if a wrong

has been committed. On that principle also,

the plaintiff's suit should lie."

The High Court upheld the award of Rs.50,000/- as

damages for harassment by treating the same as damages for

malicious prosecution causing harassment by way of mental

pain etc. The award of Rs.50,000/- was for loss of reputation

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was also upheld.

In support of the appeal, learned counsel for the

appellant- Board submitted that the whole basis on which the

compensations have been awarded are really non-existent.

The conclusions of the trial judge and the High Court are

contrary to the whole foundation of the judgment and decree

of the trial court. In the order passed by learned Single Judge

in respect of the departmental proceedings there was no

observation about the proceedings being mala fide or for

extraneous reasons. Only on the ground that reasonable

opportunity was not granted to the employee-respondent No.1,

the writ petition filed by him was allowed. There was no

specific averment regarding any malicious prosecution. The

only averment made in the plaint shows that wild allegations

were made without any material to substantiate them.

Interestingly the trial court did not frame an issue as to

whether there was any malicious prosecution. No evidence was

led even to show that there was any malicious prosecution. It

was rightly noted by the High Court that the trial court had

held that the plaintiff was not entitled to damages for

defamation. Curiously enough the High Court upheld the

award of damages of Rs.50,000/- by coming to the conclusion

that the amount appeared to have been awarded as damages

for malicious prosecution causing harassment. The reasons

are unfathomable.

In response, learned counsel for the respondent No.1

supported the judgment and decree of the trial court as

affirmed by the High Court by the impugned judgment.

According to him an honest officer was being harassed by

unnecessary proceedings and the innocence of the respondent

no.1 was established by the judgment of the High Court in the

writ petition.

Malice and Malicious Prosecution as stated in the

Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar

read as follows:

"Malice - Unlawful intent

Will; intent to commit an unlawful act or cause harm,

Express or actual malice is ill will or spite towards the plaintiff

or any indirect or improper motive in the defendant's mind at

the time of the publication which is his sole or dominant

motive for publishing the words complained of. This must he

distinguished from legal malice or malice in law which means

publication without law full excuse and does not depend upon

the defendant's state of mind.

The intent, without justification or excuse, to commit a

wrongful act. II. Reckless disregard of the law or of a person's

legal rights. Ill will: wickedness of heart. This sense is most

typical in non legal contexts".

"Malice means in law wrongful intention. It includes any

intent which the law deems wrongful, and which therefore

serves as a ground of liability. Any act done with such an

intent is, in the language of the law, malicious, and this legal

usage has etymology in its favour. The Latin malitia means

badness, physical or moral - wickedness in disposition or in

conduct - not specifically or exclusively ill-will or malevolence;

hence the malice of English law, including all forms of evil

purpose. design, intent, or motive. But intent is of two kinds,

being either immediate or ulterior, the ulterior intent being

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commonly distinguished as the motive. The term malice is

applied in law to both these forms of intent, and the result is a

somewhat puzzling ambiguity which requires careful notice.

When we say that an act is done maliciously, we mean one of

the two distinct things. We mean either that it is done

intentionally, or that it is done with some wrongful motive."

"Malice in the legal sense imports (I) the absence of all

elements of justification, excuse or recognized mitigation, and

(2) the presence of either (a) an actual intent to cause the

particular harm which is produced or harm of the same

general nature, or (b) the wanton and wilful doing of an act

with awareness of a plain and strong likelihood that such

harm may result.

The Model Penal Code does not use 'malice' because those who

formulated the Code had a blind prejudice against the word.

This is very regrettable because it represents a useful concept

despite some unfortunate language employed at times in the

effort to express it."

"Malice" in the legal acceptance of the word is not

confined to personal spite against individuals but consists in a

conscious violation of the law to the prejudice of another. In its

legal sense it means a wrongful act done intentionally without

just cause or excuse.

'Malice", in its legal sense, does not necessarily signily ill-

will towards a particular individual, but denotes that condition

of mind which is manifested by the intentional doing of a

wrongful act without just cause or excuse. Therefore, the law

implies malice where one deliberately injures another in an

unlawful manner.

Malice means an indirect wrong motive.

'Malice' in its legal sense means, malice such as may be

assumed from the doing of a wrongful act intentionally but

without just cause or excuse, or for want of reasonable or

probable cause."

Malice, in ordinary common parlance, means ill-wiIl

against a person and in legal sense, a wrongful act done

intentionally, without just cause or reason.

It is a question of motive, intention or state of mind and

may be defined as any corrupt or wrong motive or personal

spite or ill will.

'Malice' in common law or acceptance means ill-will

against a person, but in legal sense it means a wrongful act

alone intentionally without just cause or excuse.

It signifies an intentional doing of a wrongful act without

just cause or excuse or an action determined by an improper

motive.

"MALICE", in common acceptation, means, ill will against

a person; but in its legal sense, it means, a wrongful act done

intentionally without just cause or excuse"

Malice in its common acceptation, is a term involving

stint intent of the mind and heart, including the will; and has

been said to mean a bad mind; ill-will against a person; a

wicked or evil state of the mind towards another; an evil intent

or wish or design to vex or annoy another; a wilful intent to do

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a wrongful act; a wish to vex, annoy or injure another person

or as intent to do a wrongful act; a condition of the mind

which shows a heart regardless of social duty and fatally bent

on mischief.

"MALICE" means wickedness of purpose, or a spiteful or

malevolent design against another; a purpose to injure

another; a design of doing mischief, or any evil design or

inclination to do a bad thing, or a reckless disregard to the

rights of others, or absence or legal excuse, or any other

motive than that of bringing a party to justice."

"The meaning of the term malice in English law, his been

a question of much difficulty and controversy; and those who

made through the many disquisitions on the subjects in text-

books and judicial opinions are almost tempted to the

conclusion that the meaning varies almost infinitely, and that

the only sense which the term can safely be predicated not to

have in ant given legal context is that which it has in popular

language, viz., spite or ill-will. It certainly has different

meanings with respect to responsibility for civil wrongs and

responsibility for crime; and even with respect to crime it has a

different sense according as it is used with reference to

murder, libel, or the capacity of an infant to commit crime,

expressed by the rule malitia supplet act item." (Ency. of the

Laws of England). Ordinarily, the absence of reasonable and

probable cause in instituting a proceeding which terminates in

favour of the plaintiff, would give rise to the inference of

malice.

MALICE has been said to mean any wrong or indirect

motive but a prosecution is not malicious merely because it is

inspired by anger. However, wrong- headed a prosecutor may

be, if he honestly thinks that the accused has been guilty of a

criminal offence he cannot be initiator of a malicious

prosecution.

MALICE means the presence of some improper and

wrongful motive - that is to say an intend to use the legal

process in question for some other than its legally appointed

and appropriate purpose. It means an improper or indirect

motive other than a desire to vindicate public justice or a

private right. It need not necessarily be a feeling of enmity,

spite or ill-will; it may be due to a desire to obtain a collateral

advantage.

MALICE in fact is malue animus indicating that action

against a party was actuated by spite or ill will against him or

by indirect or improper motives.

Malice: hatred: aversion: antipathy: enmity:

Repugnance: ill-will: rancour: malevolence:

Malignity: malignancy. Hatred is a very general term.

Hatred applies properly to persons. It seems not absolutely

involuntary. It has its root in passion, and may be checked or

stimulated and indulged. Aversion is strong dislike. Aversion is

a habitual sentiment, and springs from the natural taste or

temperament which repels its opposites, as an indolent man

has an aversion to industry, or a humane one to cruelty.

Antipathy is used of causeless dislike, or at least one of

which the cause cannot be defined. It is found upon

supposition or instinctive belief, often utterly gratuitous.

Enmity is the state of persona! opposition, whether

accompanied by strong personal dislike or not; as "a bitter

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enemy." Repugnance is characteristically employed of acts or

courses of action, measures, pursuits, and the like. Ill-will is a

settled bias of the disposition. It is very indefinite, and may be

of any degree or strength. Rancour is a deep seated and

lasting feeling of ill-will. It preys upon the very mind of the

subject of it. While enmity may be generous and open, rancour

is malignant and private. Malice is that enmity which can

abide its opportunity of injuring its object, and pervert the

truth or the right, or go out of its way, or shape course of

action, to compass its ends. "Malevolence commences with

some idea or evil belonging to and connected with the object;

and it settles into a permanent hatred of his person and of

everything relative to him" - (Gogan) Malignity is cruel

malevolence, or innate love of harm for the sake of doing it. It

is malice the most energetic, inveterate, and sustained.

Malice in fact. "Malice in fact" means express malice.

MALICE IN FACT OR ACTUAL MALICE, relates to the actual

state or condition of the mind of the person who did the act.

Malice in fact is where the malice is not established by legal

presumption or proof of certain facts, but is to be found from

the evidence in the case.

Malice in fact implies a desire or intention to injure, while

malice in law is not necessarily inconsistent with an honest

purpose.

Malice in law. 'Malice in law" means implied malice.

"MALICE IN LAW" simply means a depraved inclination

on the part of a person to disregard the rights of others, which

intent is manifested by his injurious acts.

Malice in its legal sense means malice such as may be

assumed from the doing of a wrongful act intentionally but

without just cause or excuse, or for want of reasonable or

probable cause. S.R. Venkataraman v. Union of India (AIR

1979 SC 49, 51).

MALICIOUS. Done with malice or an evil design; wilful;

indulging in malice, harboring ill-will, or enmity malevolent,

malignant in heart; committed wantonly, wilfully, or without

cause, or done not only wilfully and intentionally, but out of

cruelty, hostility of revenge; done in wilful neglect of a known

obligation.

"MALICIOUS" means with a fixed hate, or done with evil

intention or motive; not the result of sudden passion.

Malicious abuse of civil proceedings. In general, a person

may utilize any form of legal process without any liability, save

liability to pay the costs of proceedings if unsuccessful. But an

action lies for initiating civil proceedings. Such as action,

presentation of a bankruptcy or winding up petition, an

unfounded claim to property, not only unsuccessfully but

maliciously and without reasonable and probable cause and

resulting in damage to the plaintiff. (Walker)

Malicious abuse of legal process. A malicious abuse of

legal process consists in the malicious misuse or

misapplication of process to accomplish a purpose not

warranted or commanded by order of Court - the malicious

perversion of a regularly issued process, whereby an improper

result is secured.

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There is a distinction between a malicious use and a

malicious abuse of legal process. An abuse is where the party

employs it for some unlawful object - not the purpose which it

is intended by the law to effect; in other words, a perversion of

it.

Malicious abuse of process. Wilfully misapplying Court

process to obtain object not intended by law. The wilful misuse

or misapplication of process to accomplish a purpose not

warranted or commanded by the writ. An action for malicious

abuse of process lies in the following cases, A malicious

petition or proceeding to adjudicate a person an insolvent, to

declare a person lunatic or to wind up a company, to make

action against legal practitioner under the Legal Practitioners

Act, maliciously procuring arrest or attachment in execution of

a decree or before judgment, order or injunction or

appointment of receiver, arrest of a ship, search of the

plaintiff's premises, arrest of a person by police.

Malicious abuse of process of Court

Malicious act Bouvier defined a malicious act as "a

wrongful act, intentionally done, without cause or excuse."

A malicious act is one committed in a state of mind

which shows a heart regardless of social duty and fatally bent

on mischief\027a wrongful act intentionally done, without legal

justification or excuse.

'A malicious act is an act characterised by a preexisting

or an accompanying malicious state of mind.

Malicious Prosecution \026 Malice. Malice means an

improper or indirect motive other than a desire to vindicate

public justice or a private right. It need not necessarily be a

feeling of enmity, spite or ill-will. It may be due to a desire to

obtain a collateral advantage. The principles to be borne in

mind in the case of actions for malicious prosecutions are

these:\027Malice is not merely the doing a wrongful act

intentionally but it must be established that the defendant

was actuated by mains animus, that is to say, by spite of ill-

will or any indirect or improper motive. But if the defendant

hod reasonable or probable cause of launching the criminal

prosecution no amount of malice will make him liable for

damages. Reasonable and probable cause must be such as

would operate on the mind of a discreet and reasonable man;

'malice' and 'want of reasonable and probable cause.' have

reference to the state of the defendant's mind at the date of the

initiation of criminal proceedings and the onus rests on the

plaintiff to prove them.

OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".

"A judicial proceeding instituted by one person against

another, from wrongful or improper motive and without

probable cause to sustain it."

"A prosecution begun in malice, without probable cause

to believe that it can succeed and which finally ends in

failure."

"A prosecution instituted wilfully and purposely, to gain

some advantage to the prosecutor or thorough mere

wantonness or carelessness, if it be at the same time wrong

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and unlawful within the knowledge of the actor, and without

probable cause."

"A prosecution on some charge of crime which is wilful,

wanton, or reckless, or against the prosecutor's sense of duty

and right, or for ends he knows or is bound to know are wrong

and against the dictates of public policy."

The term "malicious prosecution" imports a causeless as

well as an ill-intended prosecution.

'MALICIOUS PROSECUTION" is a prosecution on some

charge of crime which is wilful, wanton, or reckless, or against

the prosecutor's sense of duty and right, or for ends he knows

or its bound to know are wrong and against the dictates of

public policy.

In malicious prosecution there are two essential

elements, namely, that no probable cause existed for

instituting the prosecution or suit complained of, and that

such prosecution or suit terminated in some way favorably to

the defendant therein.

1. The institution of a criminal or civil proceeding for an

improper purpose and without probable cause. 2. The cause of

action resulting from the institution of such a proceeding.

Once a wrongful prosecution has ended in the defendant's

favor, lie or she may sue for tort damages - Also termed (in the

context of civil proceedings) malicious use of process. (Black,

7th Edn., 1999)

"The distinction between an action for malicious

prosecution and an action for abuse of process is that a

malicious prosecution consists in maliciously causing process

to be issued, whereas an abuse of process is the employment

of legal process for some purpose other than that which it was

intended by the law to effect - the improper use of a regularly

issued process. For instance, the initiation of vexatious civil

proceedings known to be groundless is not abuse of process,

but is governed by substantially the same rules as the

malicious prosecution of criminal proceedings." 52 Am. Jur.

2d Malicious Prosecution S. 2, at 187 (1970).

The term 'malice,' as used in the expression "malicious

prosecution" is not to be considered in the sense of spite or

hatred against an individual, but of malus animus, and as

denoting that the party is actuated by improper and indirect

motives.

As a general rule of law, any person is entitled though

not always bound to lay before a judicial officer information as

to any criminal offence which he has reasonable and probable

cause to believe has been committed, with a view to ensuring

the arrest, trial, and punishment of the offender. This

principle is thus stated in Lightbody's case, 1882, 9 Rettie,

934. "When it comes to the knowledge of anybody that a crime

has been committed a duty is laid on that person as a citizen

of the country to state to the authorities what he knows

respecting the commission of the crime, and if he states, only

what he knows and honestly believes he cannot be subjected

to an action of damages merely because it turns out that the

person as to whom he has given the information is after all not

guilty of the crime. In such cases to establish liability the

pursuer must show that the informant acted from malice, i.e.,

'not in discharge of his public duty but from an illegitimate

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motive, and must also prove that the statements were made or

the information given without any reasonable grounds of

belief, or other information given without probable cause; and

Lord SHAND added (p. 940): "He has not only a duty but a

right when the cause affects his own property."

Most criminal prosecutions are conducted by private

citizens in the name of the Crown. This exercise of civic rights

constitutes what with reference to the la of libel is termed a

privileged occasion: but if the right is abused, the person

injured thereby is, in certain events, entitled to a remedy. (See

H. Stephen, Malicious Prosecution, 1888; Builen and Leake,

Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April

1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of

England.)

"MALICIOUS PROSECUTION" means that the

proceedings which are complained of were initiated from a

malicious spirit, i.e, from an indirect and improper motive, and

not in furtherance of justice. [10 CWN 253 (FB)]

The performance of a duty imposed by law, such as the

institution of a prosecution as a necessary condition precedent

to a civil action, does not constitute "malice". (Abbott v. Refuge

Assurance Co., (1962) 1 QB 432).

"Malicious prosecution" thus differs from wrongful arrest

and detention, in that the onus of proving that the prosecutor

did not act honestly or reasonably, lies on the person

prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1

QB 348)). (Stroud, 6th Edn., 2000).

'Malice' means and implies spite or ill-will. Incidentally,

be it noted that the expression "mala fide" is not meaningless

jargon and it has its proper connotation. Malice or mala fides

can only be appreciated from the records of the case in the

facts of each case. There cannot possibly be any set guidelines

in regard to the proof of mala fides. Mala fides, where it is

alleged, depends upon its own facts and circumstances. (See

Prabodh Sagar v. Punjab State Electricity Board and others.

(2000) 5 SCC 630.

The legal meaning of 'malice' is "ill will or spite towards a

party and any indirect or improper motive in taking an action".

This is sometimes described as "malice in fact". "Legal malice"

or "malice in law" means "something done without lawful

excuse". In other words, "it is an act done wrongfully and

willfully without reasonable or probable cause, and not

necessarily an act done from ill feeling and spite. It is

deliberate act in disregard of the rights of others". (See State of

A.P. v. Govardhanlal Pitti (2003) 4 SCC 739).

The word "malice" in common acceptation means and

implies "spite" or "ill will". One redeeming feature in the matter

of attributing bias or malice is now well settled that mere

general statements will not be sufficient for the purposes of

indication of ill will. There must be cogent evidence available

on record. In the case of Jones Bros. (Hunstanton) Ltd. v.

Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court

of Appeal has reliance on the decision of Lumley v. Gye (1853)

2 E&B 216: 22 L.JQB 463 as below: "For this purpose

maliciously means no more than knowingly. This was

distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22

LJQB 463 where Crompton, J. said that it was clear law that a

person who wrongfully and maliciously, or, which is the same

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thing, with notice, interrupts the relation of master and

servant by harbouring and keeping the servant after he has

quitted his master during his period of service, commits a

wrongful act for which he is responsible in law. Malice in law

means the doing of a wrongful act intentionally without just

cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C

247. 'Intentionally' refers to the doing of the act; it doe not

mean that the defendant meant be spiteful, though

sometimes, as for instance to rebut a plea of privilage in

defamation, malice in fact has to be proved". (See State of

Punjab v. U.K. Khann and others (2001) 2 SCC 330).

Malice in law. "Malice in law" is however, quite different.

Viscount Haldane described it in Shearer Shields, (1914) AC

808 as: "A person who inflicts an injury upon another person

in contravention of the law is not allowed to say that he did so

with the innocent mind: he is taken to know the law, and he

must act within the law. He may, therefore, be guilty of malice

in law, although, so far the state of mind is concerned, he acts

ignorantly, and in that sense innocently". Malice in its legal

sense means malice such as may be assumed from the doing

of a wrongful act intentionally but without just cause or

excuse, or fro want of reasonable or probable cause. (See S.R.

Venkatarcunan v. Union of India (1979) 2 SCC 491)

Malice-per common law. "Malice" in common law or

acceptance means ill will against a person, but in legal sense

means a wrongful act done intentionally without just cause or

excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja

and others JT 2003 (Suppl. 2) SC 515 and Chairman and MD,

BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567).

While it is true that legitimate indignation does not fall

within the ambit of malicious act, in almost all legal inquiries,

intention, as distinguished from motive is the all important

factor. In common parlance, a malicious act has been equated

with intentional act without just cause or excuse. (See Jones

Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All

ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja

Shankar Pant and others. (2001) 1 SCC 182).

A bare perusal of the averments made in the plaint show

that they are extremely vague, lacking in details and after the

learned trial judge held that the Board alone was responsible

because it was not established that any individual officer was

responsible for it and dispute only have been revealed by the

high-power enquiry which the court was incompetent to direct,

the award for damages is clearly indefensible. The High

Court's judgment suffers from various infirmities. Firstly, it

has taken a confused view of the matter. It failed to notice that

the trial court itself had held "it was highly probable" that the

plaintiff was suspended for extraneous reasons. This

conclusion is based on surmises and conjectures. This had

not been established. As noted above, the High Court noted

that the Trial Court itself held that the plaintiff was not

entitled to damages for defamation. But while affirming the

judgment and decree, it held that the damages granted for

harassment must be read as damages for malicious

prosecution causing harassment. To say the least, all the

conclusions are confusing, contradictory and do not convey

any sense. Looked at from any angle the impugned judgment

of the High Court is indefensible and is set aside.

The appeal is allowed but without any order as to costs.