Delhi District Court
Shri Bhagirath Lal Sharma vs Smt. Bimlesh Sharma on 21 March, 2014
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS: DELHI
CS N0. 159/10
UID No. 02401C0918742007.
Shri Bhagirath Lal Sharma
S/o. Late Shri Kishori Lal Sharma
R/o. Village Kashmabad Durba
Post Office & Distt. Bagpat
(U.P.) - PIN - 250609
........... Plaintiff
Versus
Smt. Bimlesh Sharma
W/o. Shri Bhagirath Lal Sharma
D/o Late Shri Santosh Kumar Sharma
R/o. 82/4, Circular Road, Mukesh Nagar
Shahdara, Delhi-110032.
ALSO AT :-
Smt. Bimlesh Sharma, (PGT) Commerce
Through Principal
Sarvodaya Kanya Vidyalaya No. 1
Mansarover Park, Shahdara
Delhi-110032.
.......... Defendants
Date of institution of suit : 17.09.2007.
Date of reserving for order : 10.03.2014.
Date of judgment : 21.03.2014.
JUDGMENT
1. This is a suit for recovery of compensation of Rs. 10 lacs for malicious CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 1 prosecution on behalf of the plaintiff.
2. Brief facts of the case are :
a) Plaintiff is working as junior engineer (electrical) with Slum & JJ Department of MCD for the last many years and the plaintiff has a reputation in the office as well as in the society being well settled.
b) The plaintiff was married with the defendant on 03/03/1991 according to Hindu Rites and Customs. The defendant on the very beginning of the marriage started defaming the plaintiff and his family members. The plaintiff started living with the defendant in Delhi about one month after marriage in Tilak Nagar and later on in Ashok Nagar.
c) The plaintiff was defamed by the defendant and her family members. Defendant raised quarrel with the plaintiff on 13/06/1992 and the defendant called her family members at the premises at A-84, Ashok Nagar, Shahdara, Delhi and at the instance of the defendant the police of PS Nand Nagari reached at the spot and at the instance of the defendant and her family members locked the tenanted room. The police recorded DD No. 9-A, dated 13/06/1992 and directed the parties not to raise the dispute in any manner.
d) The plaintiff was a tenant at above mentioned house bearing no.
A-84, Ashok Nagar, Shahdara, Delhi, therefore, the landlord filed an eviction petition before the court of ARC, Delhi, who passed the eviction decree on the ground of compromise between the plaintiff and landlord on 09/12/1993 and the possession was handed over on the same day by the plaintiff to the landlord in the presence of the defendant.
e) The plaintiff never tried to disobey the directions of the police as well as orders of the court being a law abiding citizen.
f) The defendant was very well aware about handing over the possession of the tenanted room to the landlord on 09/12/1993 and for CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 2 this reason no complaint was ever lodged in the police by the defendant and the complaint dated 27/08/1994 was lodged by the brother of the defendant to the police and that complaint bears the signatures of the brother of defendant.
g) Defendant filed a complaint before the ld ACMM, Karkardooma on 16/11/1994 and ultimately after completion of the trial, the prosecution filed by the defendant was ultimately terminated in favour of the plaintiff by judgment dated 22/09/2006.
h) The prosecution initiated by the defendant against the plaintiff was without any reasonable and probable cause that is why no complaint was ever made by the defendant to the police during the period of 09/12/1993 to 27/08/1994, therefore the complaint filed by the defendant was without any reasonable cause and intention and cause of the defendant was malicious in filing the compliant vide complaint no. 64/02.
i) The plaintiff suffered huge damage on account of defame, putting danger to the liberty of the plaintiff and property of the plaintiff. The reputation and image of the plaintiff as well as family members of the plaintiff lowered in the society and the plaintiff also lowered his reputation in his office, relatives and friends.
j) The plaintiff has sent notice dated 22/08/2007 through registered AD which was duly served upon the defendant but despite the service of the notice, the defendant neither made payment nor replied the notice.
3. Written statement filed by the defendant wherein it is stated that the suit has been filed in the counter blast of the case titled as State Vs. Bhagirath Lal Sharma & Ors., pending before the court of ld MM, Karkardooma Courts, Delhi, under Section 498-A/406/34 IPC. The plaintiff has filed the present suit with malafide intention to pressurize CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 3 the defendant to settle all the dispute. The suit of the plaintiff does not disclose any element of malafide intention of the defendant. Relationship between the parties is not denied. It is further stated that the defendant was subjected to physical and mental torture by the plaintiff on various occasions as she was kicked from her matrimonial house on many occasions. It is further stated that the defendant is residing with her widow mother and minor child. Parties living together at A-84, Ashok Nagar, Shahdara, Delhi not denied. Registration of case against the plaintiff upon the complaint of the defendant is also not denied. Acquittal of the plaintiff in the said case is also not denied. Rest of the contents of the plaint are denied. It is further stated that the defendant is working as PGT (Commerce) and is drawing a good salary is an admitted fact.
4. Replication to the written statement was also filed wherein the avertments of the plaint are reiterated and affirmed and contents of the written statement are vehemently denied.
5. My ld predecessor by order dated 15/05/2008 framed following issues :
"(i) Whether the present suit is not maintainable? OPD.
(ii) Whether the plaintiff is entitled to damages on account of malicious prosecution? If so, to what extent? OPP.
(iii) Whether the plaintiff is entitled to damages on account of defamation? If so, to what extent? OPP.
(iv) Relief."
6. To prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit. PW1 was cross-examined at length by the ld counsel for the defendant. He further examined ahlmad of the court of ld MM, Karkardooma Court, Delhi as PW2 with summoned record who proved true copies of the judgment and compliant CC no.
64/02 titled as Bimlesh Sharma Vs. Bhagirath Lal Sharma as Ex. PW1/1 and Ex. PW1/2 respectively. He further examined Sh. Rakesh CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 4 Kumar who tendered his evidence by way of affidavit Ex. PW3/A and in the last he examined Sh. Chaman Lal Sharma as PW4 who tendered his evidence by way of affidavit Ex. PW4/A. All these witnesses were cross-examined by ld counsel for the defendant and thereafter by separate statement, plaintiff closed PE. In defence, the defendant examined herself as DW1 who tendered her evidence by way of affidavit Ex. D1. She was cross-examined by ld counsel for the plaintiff and thereafter by separate statement, defendant herself closed DE.
7. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard arguments from Sh. Satya Pal, counsel for the plaintiff and Sh. R. K. Sharma, counsel for the defendant. My issuewise findings are :
8. Issues No. 1 and 2.
Issue No. 1 : Whether the present suit is not maintainable? OPD. Issue No. 2 : Whether the plaintiff is entitled to damages on account of malicious prosecution? If so, to what extent? OPP.
Onus to prove issue no. 1 is upon the defendant whereas onus to prove issue no. 2 is upon the plaintiff. PW2 proved copy of judgment as Ex. PW1/1 and copy of complaint as Ex. PW1/2. During arguments, ld counsel for the plaintiff heavily relied upon these two documents and submits that the defendant had falsely implicated the plaintiff in the case wherein the plaintiff was acquitted. Affidavit of PW1 is similar to the averments made in the plaint. During cross-examination, it is stated by PW1 that he has not impleaded the brother of the defendant or any other family member of the defendant in the present case or in any other case of defamation or malicious prosecution. He has admitted that the criminal case under Section 498A/406 IPC is pending till date against him and all his family members have been discharged.
CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 5 Ex. D1 is similar to the averments made in the written statement. A suggestion was given that the plaintiff got defamed by the complaint case and lost reputation in the society by that complaint case. The suggestion was denied.
9. At this stage, I shall refer the law on the subject 'malicious prosecution.' The Privy Council in Sah Mauji Ram Vs. Sah Chaturbhuj AIR 1939 Privy Council 225 held that in order to succeed in a suit for malicious prosecution, one has to establish that the defendant acted without any reasonable and probable cause and maliciously. Thereafter, Hon'ble High Court of Nagpur in Sitaram Vs. Dudharam AIR 1952 Nagpur 310 held in para 5 & 6 :
"5. Reasonable and probable cause may be defined as "an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonable lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."HLRNIMAN V. SMITH', 1935 AC 305 at p.316. Distinction, however, has to be drawn between the case of an accuser who has personal knowledge of the truth or otherwise of the accusation and th case of one who has no such knowledge but who on information received or from circumstances honestly believes in the guilt of the accused provided he does not fail or neglect to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution.
6. Innocence is proved by proving acquittal in criminal proceedings where the prosecutor must know whether his accusation against the accused is false or true. If the accused is innocent it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause. Thus, in this class of case proof of innocence of the accused by production of the judgment in the criminal case is sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution......"
10. The Hon'ble Andhra Pradesh High Court in Badduri Chandra Reddy and another v. Pammi Rami Reddy and others, (S) AIR ANDHRA CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 6 218 V (V.42, C. 81 Oct.)(1) held in para 9 :
"9. The principle laid down in 'Gaya Prasad V. Bhagat Singh (B)', was accepted by the Privy Council in another case - 'Balbhadar Singh v. Badri Sah', AIR 1926 PC 46(F). It may be taken that it is now well established, that, if a person does nothing beyond giving information to the police which he considers to be true, an action for damages for malicious prosecution is not maintainable against him. If on the other hand, besides setting the law in motion he takes an active part in the conduct of the prosecution he made be regarded as the real prosecutor, although the actual prosecution is by the police and renders himself liable for damages."
The Hon'ble High Court further held in para 16 of the said judgment :
16. .......Further the principle that should guide the determination of the liability for damages for malicious prosecution, as already stated by me, is that the person sought to be made liable for damages should be directly or primarily responsible for the prosecution. It is difficult to say that one who gives some information to another who lodges a report before the Police can be brought within the scope of such a principle."
11. The Hon'ble Punjab and Haryana High Court in Major Gian Singh Vs. S. P. Batra AIR 1973 Punjab and Haryana 400 (V 60 C 114) held in para 13 :
"13. On the other hand, the learned counsel for the respondent has urged before us that the respondent, being an aggrieved person, had merely set the law into motion by placing the facts before a competent Court. The court itself forwarded the complaint to the Police for investigation. If, as a result of this investigation, the Police had actually arrested the appellant and put him for trial before a Court of law, the respondent could not be held liable for any damages. In short, it was submitted that the respondent could not be regarded as a prosecutor. We are unable to agree with the contention advanced by the learned counsel for the respondent. A defendant in a suit for prosecution can escape liability only if he places true and correct information before the Police or a Magistrate having jurisdiction to take cognizance of the offence charged against the plaintiff. Where a defendant conceals the material facts or distorts them to an unreasonable extent, he cannot be allowed to urge that he was not the prosecutor. In Balbhaddar Singh v. Badri Sah, AIR CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 7 1926 PC 46, it was observed as follows :-
In any country, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie. But it must be kept in view that, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings."
It was further held in para 15 of the said judgment :
"15. ......... In a suit for malicious prosecution the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the plaintiff in the earlier proceedings may sometimes give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do not have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages."
12. The Hon'ble High Court further held in referred judgment that existence of reasonable and probable cause has to be judged in relation to state of mind at the time when he initiated the proceedings. The Hon'ble Delhi High Court in C. B. Aggarwal Vs. P. Krishna Kapoor, Suit 767 of 1983, decided on 28-11-1994 held in para 29 :
"29. On the basis of the various pronouncements of courts in India and in England. It can safely be concluded that civil actions which are normally covered under 'abuse of process' are relating to attachment or property, damage of a person, malicious bankruptcy, winding up proceedings and such other processes of the Court which are abused by a party. Only those cases can be considered by the courts which satisfy the following ingredients:-
1. The proceedings must have been instituted or continued by 'the defendant;
2. He must have acted without reasonable and CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 8 probable cause;
3. He must have acted maliciously;
4. The proceedings must have been unsuccessful - that is to say, must have terminated in favour of the plaintiff now suing;
5. The legal process was not only without foundation but is used for an improper and collateral purpose. Such orders were not used for a purpose, for which the court intended to pass the order or the order passed by a court in a case has been used with ulterior motives to cause damage to the reputation, person or property of the affected party."
It was further held in para 30 of the said judgment :
"30. The probable cause is not the same thing as sufficient cause and has to be judged from the standard of reasonable and ordinary prudent men. The plaintiff is obliged to give positive evidence of not only the lack of proper probable and reasonable cause but also as to the requirements of other conditions, before any relief is granted to him against the defendant. Learned counsel for the plaintiff has argued that the defendant had no right to institute the proceedings and the initiation and continuation of proceedings was without probable cause and was malicious. I have already held that even these two ingredients are not proved in the present case. Even if these be assumed and have been proved, the remaining three ingredients have neither been pleaded nor proved. As such, the plaintiff could hardly bring the present suit for damages against the defendant and the net result is that the plaintiff is not entitled to any damages."
13. The Hon'ble Supreme Court in West Bengal State Electricity Board v. Dilip Kumar Ray AIR 2007 Supreme Court 976 defined in malice and malicious prosecution in para 14, 15, 16 and 17 :
"14. 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 9 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 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 10 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 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 11 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 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 12 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 13 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. 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 mischiefa 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 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 14 case of actions for malicious prosecutions are these:Malice 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 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.
CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 15 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 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 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 16 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).
15. '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.
16. 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).
17. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 17 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 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)."
14. The Hon'ble Delhi High Court in R. K. Soni Vs. S. Singhara Singh, Suit 77/1987, decided on 21-08-1991 held in para 5 :
"5. ...... In order to succeed in an action for malicious prosecution the plaintiff was to prove only that he was prosecuted by the defendant and the prosecution ended in the plaintiff's favour and that defendant had acted without reasonable and probable cause and was actuated by malice in launching the criminal prosecution. From the evidence led by the plaintiff it is amply proved that the plaintiff was prosecuted by the defendant maliciously without any reasonable and probable cause and the prosecution ended in plaintiff's favour......"
15. The Hon'ble Delhi High Court in Vijendra Kumar versus Ved Prakash Gupta RSA No. 259/2005 & CM No. 12211-12212/2005, decided on 29-03-2007 relied upon West Bengal State Electricity Board (supra). The Hon'ble Supreme Court in Ravinder Singh Vs. Sukhbir Singh & Ors. 2013 STPL(LE) 47178 SC held in para 11 :
CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 18 "11. The dictionary meaning of word 'false' means that, which is in essence, incorrect, or purposefully untrue, deceitful etc. Thus, the word 'false', is used to cover only unlawful falsehood. It means something that is dishonestly, untrue and deceitful, and implies an intention to perpetrate some treachery or fraud. In jurisprudence, the word 'false' is used to characterise a wrongful or criminal act, doe intentionally and knowingly, with knowledge, actual or constructive. The word false may also be used in a wide or narrower sense. When used in its wider sense, it means something that is untrue whether or not stated intentionally or knowingly, but when used in its narrower sense, it may cover only such falsehoods, which are intentional. The question whether in a particular enactment, the word false is used in a restricted sense or a wider sense, depends upon the context in which is it used."
16. It further relied upon West Bengal State Electricity Board (supra). It was further held in para 17 :
"17. The word "vexatious" means 'harassment by the process of law', 'lacking justification' or with 'intention to harass'. It signifies an action not having sufficient grounds, and which therefor,e, only seeks to annoy the adversary.
17.1. The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceedings may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court."
17. During cross-examination of DW1, nowhere it is challenged by the plaintiff to DW1 that the prosecution against the plaintiff i.e. Ex. PW1/2 was filed by the defendant with malicious intent and without any reasonable and probable cause. It is also not challenged that the said prosecution was not founded on reasonable ground of the existence of the state of circumstances which assuming them to be true. It is stated CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 19 by DW1 that she had only given information to the police which she considered to be true and settling the law in motion. In Major Gian Singh Vs. S. P. Batra (supra), the burden of proof was upon the plaintiff to prove that the proceedings were initiated without any reasonable and probable cause. The plaintiff has not challenged during cross-examination of DW1 that the fact and circumstances were exists which given rise to be believed in the mind of the defendant that the other party was not guilty. It is also not challenged by the plaintiff during cross-examination of DW1 that the defendant had acted maliciously or the legal process was not only without foundation but was used for improper and collateral purpose [C. B. Aggarwal Vs. P. Krishna Kapoor (supra)]. Therefore, in my considered opinion, the plaintiff is not able to discharge the onus to prove issue no. 2 and accordingly, this issue is answered against the plaintiff and similarly issue no. 1 is also answered against the plaintiff.
18. Issue No. 3.
Whether the plaintiff is entitled to damages on account of defamation? If so, to what extent? OPP.
Onus to prove issue no. 3 is upon the plaintiff. The Hon'ble High Court in V. Narayana Bhat Vs. E. Subbanna Bhat AIR 1975 Karnataka 162 held in para 7 :
"The reason why absolute privilege is extended to the statement of a witness made prior to the commencement of a judicial proceeding is based on public policy as stated by Lord Halsbury in 1905 AC
480. There is no reason why the principle stated in the said decision should not be extended to a party and the absolute privilege confined only to the statement of a witness under such circumstances. Of the two instances referred to by Blagden J. in ILR (1943) 1 Cal 250 the first refers to the editor of a newspaper as stated above. But is is doubtful whether the editor of the newspaper in such circumstances can claim absolute privilege on the basis of the principle laid down in 1905 AC 480. With regard to the second illustration referred to by Blagden J., if the complaint to CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 20 the police results in an unsuccessful prosecution then the person defamed can only claim damages for malicious prosecution and not for defamation. In case the complaint to the police does not result in a prosecution, then also the persons defamed have no remedy in respect of defamatory statements made in such a complaint to the police. But if a false complaint is made to the police, the person who makes such a false complaint would be punishable either under Section 182 or Section 211 of the India Panel Code. It cannot therefore be said that a person against whom false charges are made in a complaint to the police, even if no further action is taken by the police authorities on such complaint, goes scotfree. I would, therefore, prefer to follow the earlier view of the Division Bench of the same High Court in Air 1939 Cal 477 and the other decisions referred to above which take the view that a complaint to a police officer is absolutely privileged."
In another judgment of Bira Gareri Vs. Dulhin Somaria and others AIR 1962 Patna 229 (V 49, C 62), the Hon'ble High court has held in para 6:
"In my opinion, therefore reading these provisions of the Code, it is clear that the appellant's statement in the communication to the police was a report which would properly be considered as a step in judicial proceedings'. The mere fact that a final report was submitted in the case, in my opinion, would not make any difference. Judicial proceedings might start or might not. The question as to whether the statement made in an information given to the police of a cognizable offence is absolutely privileged or not would not depend upon the future event of the starting of the judicial proceedings. Even after starting of such proceedings, it may be found that the case was false and that the information was given out of malice. This point of distinction made out in some of the Indian cases does not commend to me and I am of the view that such a statement contained in a communication to the police or made before a police officer with the object of starting, or in relation to, judicial proceedings is absolutely privileged. If that be not so, no body giving information to the police would be safe for he will have to run the risk of being civilly liable for the information. It may well be that if the information is found to be false and to have been actuated by malice, the informant is criminally liable for defamation under the Indian law as embodied in section 499 of the Penal Code or even civilly liable under certain circumstances CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 21 to pay damages for malicious prosecution but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement."
In Madhab Chandra Ghose and others Vs. Nirod Chandra Ghose AIR 1939 Calcutta 477 it was held by the Hon'ble High Court :
"With regard to the question whether statements to the police as distinct from statements in Court are protected, I have already pointed out that the settled law in England is that statements made with a view to repeating them on oath in a subsequent judicial proceeding are similarly protected. In a sense, statements made to the police appear to be in this respect on stronger ground than statements made to the solicitor as reported in (1905) A C 480 or (1914) 30 T L R 591. For statements made to a solicitor may or may not be followed up by judicial proceeding, the matter being at the option of the party consulting such solicitor, in which case the statements would slumber in the office of the solicitor, as Lord Halsbury said. But the party lodging information before the police has no option and the police are empowered to go on with the matter and investigate, leading to other results. It has been held in the case of complaints to a Magistrate followed by statements to the police to whom the Magistrate may have referred the matter for investigation that such statements are absolutely privileged and no action for defamation is maintainable."
In such circumstances, the plaintiff is not able to prove his case and, therefore, issue no. 3 is answered against the plaintiff.
19. Issue No. 4.
Relief.
In view of the observations made herein above, since there is no malicious prosecution proved against the plaintiff, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 21.03.2014. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 22 CS No. 159/10 21/03/2014 Present : None.
Vide separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra) Additional District Judge-09 Central District, Tis Hazari Courts Delhi/21.03.2014 CS No. 159/10.
Bhagirath Lal Sharma Vs. Bimlesh Sharma Page 23