Full Judgment Text
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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.