MEANING DEFINITION AND EXPLANATION
Abuse of legal procedure refers to misusing judicial processes for improper purposes. It involves initiating legal actions maliciously without reasonable grounds. This tort aims to prevent misuse of the legal system to harass others. The main forms are malicious prosecution and malicious civil proceedings.
MALICIOUS PROSECUTION
Malicious prosecution occurs when someone institutes unsuccessful criminal proceedings against another person maliciously and without reasonable cause. It is defined as “a judicial proceeding instituted by one person against another from wrongful or improper motive and without probable cause to sustain it.”
Essential Elements
To succeed in an action for malicious prosecution the plaintiff must prove:
- The defendant prosecuted the plaintiff
- The prosecution was instituted without reasonable and probable cause
- The defendant acted maliciously not just to carry out the law
- The proceedings terminated in the plaintiff’s favor
- The plaintiff suffered damage as a result
Prosecution by the Defendant
The plaintiff must prove the defendant actually prosecuted them. Merely giving information to police is not enough. The defendant must have been actively instrumental in initiating and pursuing the prosecution.
In Gaya Prasad v. Bhagat Singh the Privy Council explained that the conduct of the complainant before and after the complaint must be examined to determine if they were the real prosecutor. If they knowingly make false charges and mislead police with false evidence they would be considered the prosecutor.
When Prosecution Commences
Prosecution is deemed to commence when a person is summoned to answer a complaint. Mere lodging of an FIR or police investigation does not amount to prosecution.
Proceedings Before Quasi-Judicial Authorities
Proceedings before some quasi-judicial bodies like professional regulatory boards may amount to prosecution. However departmental inquiries by disciplinary authorities are generally not considered prosecution.
Absence of Reasonable and Probable Cause
The plaintiff must prove the defendant prosecuted them without reasonable and probable cause. This means the defendant lacked an honest belief in the plaintiff’s guilt based on reasonable grounds. Mere suspicion is not enough.
Malice
The plaintiff must also prove the defendant acted maliciously with some improper motive other than bringing an offender to justice. Malice means the proceedings were initiated from an indirect and improper motive not to further justice. However malice alone is not sufficient if there was reasonable cause for prosecution.
Termination in Plaintiff’s Favor
The criminal proceedings must have terminated in the plaintiff’s favor. This does not require a judicial determination of innocence just absence of a finding of guilt. Acquittal discharge or discontinuation of prosecution suffices.
Damage
The plaintiff must prove they suffered damage as a result of the malicious prosecution. This can include damage to reputation liberty or property. Expenses incurred in defending oneself can be claimed as special damages.
MALICIOUS CIVIL ACTIONS
Generally no action lies for malicious civil proceedings. However in exceptional cases where costs do not adequately compensate the defendant an action may lie. Examples include malicious bankruptcy or winding up petitions which damage business reputation.
Essential elements are similar to malicious prosecution:
- Proceedings terminated in plaintiff’s favor
- Absence of reasonable cause
- Malice
- Special damage beyond ordinary costs
Maintenance and Champerty
Maintenance refers to improperly encouraging litigation by providing financial assistance. Champerty is maintenance where the maintainer gets a share of the proceeds. These were historically prohibited as torts but are now largely obsolete.
Common interest is a defense to maintenance. This includes assisting litigation by family members employers or those with a shared commercial interest.
DAMAGES FOR MALICIOUS PROSECUTION
In awarding damages courts consider:
- Nature of charges against plaintiff
- Inconvenience and distress suffered
- Monetary losses incurred
- Status and position of plaintiff
Both general and special damages can be awarded. Fees paid to defend oneself can be claimed as special damages. General damages may be awarded for mental agony and loss of reputation.
The plaintiff bears the burden of proving absence of reasonable cause. However where the defendant claimed to witness the offense and the plaintiff was acquitted on merits absence of reasonable cause is presumed.
LEGAL PROVISIONS AND CASE LAWS
Section 211 of the Indian Penal Code criminalizes false charges with intent to injure. The Code of Criminal Procedure allows compensation to the accused in cases of frivolous or vexatious accusations.
Key case laws:
- West Bengal State Electricity Board v. Dilip Kumar Ray (2007) – Explained essential elements of malicious prosecution which are as follows:
- The defendant prosecuted the plaintiff
- The prosecution was instituted without reasonable and probable cause
- The defendant acted maliciously not just to carry out the law
- The proceedings terminated in the plaintiff’s favor
- The plaintiff suffered damage as a result
- Girja Prasad Sharma v. Umashankar Pathak (1973) – Discussed liability of investigating officers
- B. Aggarwal v. P. Krishna Kapoor (1995) – Outlined essentials for malicious civil proceedings
- Neville v. London Express Newspapers Ltd. (1919) – Established common interest defense for maintenance
- Ram Coomar Coondoo v. Chunder Canto Mookherjee (1876) – Discussed champerty agreements in India
PRINCIPLES AND MAXIMS
- “Actio non datur non damnificato” – An action is not given to one who is not injured
- “Ubi jus ibi remedium” – Where there is a right there is a remedy
- “De minimis non curat lex” – The law does not concern itself with trifles
