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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.