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TABLE OF CONTENTS

TABLE OF CASES ...................................................................................................................ii

RESEARCH METHODOLOGY............................................................................................... 3

ACKNOWLEDGEMENT ......................................................................................................... 4

MALICIOUS PROSECUTION: DEFINED ............................................................................. 5

ESSENTIALS OF MALICIOUS PROSECUTION .............................................................. 5

ESSENTIALS OF PROSECUTION ..................................................................................... 6

PROCEEDINGS TERMINATED IN FAVOUR OF PLAINTIFF ....................................... 8

MALICE, MALICE IN FACT AND MALICE IN LAW ..................................................... 9

DAMAGES FOR MALICIOUS PROSECUTION ............................................................... 9

REASONABLE AND PROBABLE CAUSE ......................................................................... 11

WHAT IS ‘REASONABLE AND PROBABLE CAUSE’? ............................................... 12

CASE ANALYSIS................................................................................................................... 14

CONCRETE FACTS ........................................................................................................... 15

MATERIAL FACTS ........................................................................................................... 17

ISSUES BEFORE THE COURT......................................................................................... 18

ARGUMENTS ADVANCED ............................................................................................. 18

DECISION OF THE COURT ............................................................................................. 19

RATIO DECIDENDI........................................................................................................... 19

CRITICAL ANALYSIS OF THE JUDGMENT ..................................................................... 20

BIBLIOGRAPHY .................................................................................................................... 21

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TABLE OF CASES

Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46. ................................................................. 3

Basebe v. Matthews (1867) LR 2 CP 684. ................................................................................. 9

Bolandanda Premayya v. Ayaradara , AIR 1966 Kant 13. ....................................................... 3

Copenbarger v. International Insurance Company (1996) 46 Cal.App.4th 961, 964. .............. 9

Dandy v. Beardsley, (1880) 43 LT 603. .................................................................................... 5

Hicks v. Faulkner, (1878)8 QBD 167 (171). ............................................................................. 8

Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 741- 743. ................................. 10

Jogendra v. Lingraj, AIR 1970 Ori 91. ..................................................................................... 5

Majid v. Harbansh Choube, AIR 1974 All 129......................................................................... 6

Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108.................................................. 3

Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047. ......................................................... 9

Plumley v. Mockett, 164 Cal.App.4th at page 1059................................................................. 10

Ram Lal v. Mahender Singh, AIR 2008 Raj 8. .......................................................................... 6

Sangster v. Paetkau, supra, 68 Cal.App.4th at pages 164-165. ............................................... 10

Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3rd at page 871. ................................................ 9

Sierra Club Foundation v. Graham, (1999) 72 Cal.App.4th 1135, 1153................................. 9

Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402. ............ 10

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817. ......................................... 9

Zamos v. Stroud, (2004) 32 Cal.4th 958, 971. ......................................................................... 10

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RESEARCH METHODOLOGY

The Research Methodology of the project is Doctrinal which includes arranging, ordering
and analyzing of the legal structure, legal framework and case laws for the formulation of a
new doctrine, through extensive surveying of the legal literature but without any field work.

The Sources of data are secondary and include the data collected in different research papers,
books and reports of the Law Commission of India.

STATEMENT OF PROBLEM

 To outline the tort of Malicious Prosecution.

 To analyse the necessity of the lack of a reasonable and probable cause for Malicious
Prosecution.
 To explain through case analysis the intricacy of the essentials of a reasonable cause
and malice.

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ACKNOWLEDGEMENT

This project had not one person behind it, there were many people in the background whose
motivation and help were instrumental in its completion. I would like to start by expressing
my gratitude towards the director of our university for providing a brilliant study atmosphere
and infrastructure, which are, inarguably, the most important contributions to any pursuit. I
am highly indebted to my institution National Law University, Bhopal for their guidance and
constant supervision regarding the project work. I would like to extend special gratitude to
Prof.(Dr.) Rajiv Khare for giving me such attention and time and very valuable guidance.

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MALICIOUS PROSECUTION: DEFINED

Malicious prosecution is an intentional tort which flows from an unjustified prosecution. It is

a tort which compensates a victim for malicious, unfounded and unsuccessful institution of
criminal or disciplinary proceedings.

Malicious prosecution is an institution with malice against another of unsuccessful criminal

or bankruptcy without a reasonable cause. It has two competing principles, namely the
freedom that every person should have in bringing criminals to justice and the need for
restraining false accusations against innocent persons.

In 2009, Canada's Supreme Court wrote:

"Malicious prosecution is an intentional tort designed to provide redress for losses flowing
from an unjustified prosecution.”

In India, the prosecution must prove the guilt of the accused, i.e., it must establish all the
ingredients of the offence with which he is charged. As in England so also in India, the
general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced
by the prosecution or by the accused, there is a reasonable doubt whether the accused
committed the offence, he is entitled to the benefit of doubt.

ESSENTIALS OF MALICIOUS PROSECUTION

Following are the essential conditions that Plaintiff has to prove in an action
for malicious prosecution:

(i) he was prosecuted by the defendant,

(ii) the proceedings complained of terminated in favour of the Plaintiff if from their nature
they were capable of so terminating,

(iii) the prosecution was instituted against him without any reasonable or probable cause,

(iv) the prosecution was instituted with malicious intention, and

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(v) he has suffered damage to his reputation.

ESSENTIALS OF PROSECUTION

There are two elements for the prosecution—

1. the Plaintiff has been prosecuted and

2. the defendant has prosecuted the Plaintiff. Legal proceedings have thus started with
the judicial authority.

Proceedings may envelope both types of prosecution i.e., criminal as well as civil. Here we
can understand this aspect that at what stage the proceedings start with the illustration of case
of Bolandanda Premayya v. Ayaradara1.—

Defendant made a complaint with the police that Plaintiff has committed a theft in his house.
Police called both i.e., Plaintiff as well as defendant in the police station and recorded their
statements. The sub-inspector then made a search in Plaintiff’s house. But the police found
the complaint to be false. The Plaintiff filed a suit for damages against the defendant in the
civil court for malicious prosecution. The court rejected this plea on this ground that mere
filing of complaint with the police doesn’t amount to prosecution. It starts only, when some
judicial authority is set in motion as a consequence of such complaint. The suit failed.

So, at what stage, the prosecution commences before the judicial authority, there are two
views on this point:

(a) the prosecution starts as soon as the complaint is made or charge is laid before the judicial
authority. In Balbhaddar Singh v. Badri Shah2 it was observed that the charge should have
been acted upon and process issued by the judicial authority.

(b) the prosecution commences not at the stage when the complaint is made or charge is laid
before the judicial authority, but at the stage when some process has been issued by such
authority for the Plaintiff to appear.

In the case of Mohd. Amin v. Jogender Kumar Banerjee3 the Plaintiff agreed to sell certain
property to defendant who was going to form a company, but later on he backtracked to do

1
Bolandanda Premayya v. Ayaradara , AIR 1966 Kant 13.
2
Balbhaddar Singh v. Badri Shah, AIR 1926 PC 46.

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so. On a complaint from defendant, the Magistrate after examining it on oath, held an inquiry
in the open court under section 202 of the Criminal Procedure Code, 1898. The Plaintiff was
accordingly summoned and he appeared with his lawyer. Thereafter, the Magistrate
dismissed the complaint as a result of preliminary enquiry. The Plaintiff brought a suit
against the defendant for damages for malicious prosecution. The Privy Council held—

“the action for damages for malicious prosecution is part of the common law of England,
administered by the High Court at Calcutta. The foundation of the action lies in abuse of
process of the court by wrongfully setting the law in motion and it is designed to discourage
the perversion of the machinery of justice for an improper purpose.”

After stating the basis for the tort of malicious prosecution, Sir John Beaumont, J; of the
Privy Council laid down the principle of determining the stage at
which prosecution commences. He said—

“To find an action for damages for malicious prosecution based upon criminal proceeding,
the test is not whether the criminal proceedings may be correctly described as prosecution,
the test is whether such proceedings have reached a stage at which damage to the Plaintiff
results. In this case the Magistrate took cognizance of the complaint, examined the
complainant on the oath, held an enquiry in open court under section 202 which the Plaintiff
attended, and, at which the learned judge had found he incurred costs in defending himself.
The plaint alleged the institution of criminal proceedings of a character necessarily involving
damage to reputation and gave particulars of special damage alleged to have been suffered by
the Plaintiff. Their Lordships think that action was well founded, and on the findings at the
trial the Plaintiff is entitled to judgment.”

In criminal proceedings, malicious prosecution commences, when such proceedings have

reached a stage at which damage to Plaintiff results.

3
Mohd. Amin v. Jogender Kumar Banerjee, AIR 1947 PC 108.

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PROSECUTION BY THE DEFENDANT

The Plaintiff has to prove that the prosecution against him was instituted by the defendant.
Prosecutor is a person who is actively instrumental in putting the law in force, as stated in
Dandy v. Beardsley4.

If a person does not file a complaint himself but through the instrumentality of an agent or
counsel, he will be termed as a prosecutor.

A private person at whose instance and report the prosecution is launched by the police, is a
prosecutor.

A person is not a prosecutor when the defendant has just given an account of honest suspicion
about the Plaintiff to the police and the police without any further enquiry started a case
against the Plaintiff.

PROCEEDINGS TERMINATED IN FAVOUR OF PLAINTIFF

As discussed above, the Plaintiff has to prove that he was prosecuted by the defendant and if
this prosecution results in conviction of the Plaintiff then no suit would lie against the
defendant. A cause of action arises if the prosecution fails to convict the Plaintiff.

PROSECUTION WAS INSTITUTED WITH MALICIOUS INTENTION

The Plaintiff has again to prove that the defendant acted maliciously in prosecuting him.
Malice means indirect and improper motive. In the case Jogendra v. Lingraj5, the Court
described ‘malice’ as—

“As already stated, bad blood existed between defendant and members of the Brahmin Nijog.
Therefore, when defendant found that some members of the Brahmin Nijog were responsible
for committing certain acts in relation to his properties, it is not unlikely that he availed of the
opportunity of implicating others even though they were not present and did not participate in
any of the acts....... is in the circumstances indicative of improper and wrongful motive and
the necessary inference is that it was malicious.”

4
Dandy v. Beardsley, (1880) 43 LT 603.
5
Jogendra v. Lingraj, AIR 1970 Ori 91.

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In Abdul Majid v. Harbansh Choube6, the Police Station Officer, in a conspiracy hatched by
two other defendants concocted a story that the Plaintiff was involved in a dacoity and the
‘hansauli’ used in the dacoity was recovered from the house of Plaintiff. The court acquitted
the Plaintiff on giving him the benefit of doubt. The Plaintiff then brought the action against
the defendants. The Court observed that the defendants adopted improper and wrongful
motive to prosecute the Plaintiff on the basis of concocted story. The Court held defendants
liable.

MALICE, MALICE IN FACT AND MALICE IN LAW

The word “Malice” in common acceptation means and implies “Spite” or “ill-will”. 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 wilfully 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”.

DAMAGES FOR MALICIOUS PROSECUTION

The Plaintiff has to prove that he has suffered damage as a result of his prosecution. There are
three types of damages—

(i) damage to man’s reputation i.e., if person has been accused of scandalous matter;

(ii) damage to the person i.e., when the person is put in danger of losing his life, liberty or
limb;

(iii) the damage to man’s property i.e., where he is forced to spend money to defend himself
of the crime of which he is prosecuted.

In Ram Lal v. Mahender Singh7 the Plaintiff and his father had been implicated in an
offence of murder and they were acquitted by the court. Thereafter, the Plaintiff filed suit
for malicious prosecution. It was held that merely because the Plaintiffs came to be acquitted
or discharged by the criminal court as the prosecution failed to prove the case beyond doubt
as is required in criminal law, it does not mean that such acquittal or discharge could
necessarily boomerang upon the defendant as a case for malicious prosecution. The burden of

6
Majid v. Harbansh Choube, AIR 1974 All 129.
7
Ram Lal v. Mahender Singh, AIR 2008 Raj 8.

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proof squarely lied upon the Plaintiffs to prove that the prosecution was malicious, mala fide
and done with an intention to harass and defame the Plaintiffs. No such case was made out by
the Plaintiffs, much less proved. Therefore, the Plaintiffs were not entitled to claim any
damages.

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REASONABLE AND PROBABLE CAUSE

‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a full
conviction founded upon reasonable grounds, of the existence of a circumstances, which
assuming them to be true, would reasonably lead any ordinary prudent man and cautious man
placed in the position of the accuser to the conclusion that the person charged was probably
guilty of the crime imputed. As laid down in Hicks v. Faulkner8 there must be

i. an honest belief of the accuser in the guilt of the accused,

ii. such belief must be based on an honest conviction of the existence of circumstances which
led the accuser,

iii. such secondly mentioned belief as to the existence of the circumstances must be based
upon reasonable grounds that is such grounds , as would lead any fairly cautious man in the
defendant’s situation to believe so,

iv. The circumstances so believed and relied on by the accuser must be such as amount to a
reasonable ground for belief in the guilt of the accused. It is the responsibility of the Plaintiff
to show that there was no reasonable and probable cause for the prosecution of the case. If the
defendant can be shown to have initiated the prosecution without himself holding an honest
belief in the truth of the charge, it cannot be said that he acted upon reasonable and probable
cause. The fact that the Plaintiff has been acquitted is not prima facie evidence that the charge
was unreasonable and false. Lack of reasonable and probable cause is to be understood
objectively, it does not connote the subjective attitude of the accuser. The fact that the
accuser himself thinks that it is reasonable to prosecute does not per se lead to the conclusion
that he had a reasonable and probable cause.

8
Hicks v. Faulkner, (1878)8 QBD 167 (171).

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WHAT IS ‘REASONABLE AND PROBABLE CAUSE’?

Reasonable and probable cause was defined in Basebe v. Matthews9as:

An honest belief in the guilt of the accused based upon… reasonable grounds of the existence
of a state of circumstances which, assuming them to be true, would reasonably lead any
ordinary 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.

Therefore, if the police do not honestly believe that the individual charged is guilty of the
offence, or if a reasonable person would not honestly believe based on the facts that the
individual was probably guilty of the offence in question, there is no reasonable and probable
cause for bringing the prosecution.

The former defendant and now Plaintiff in a malicious prosecution action must demonstrate
that the prior action was brought without probable cause. The probable cause element
requires a determination of whether, on the basis of the facts known to the filing attorney at
the time of the filing of the underlying action, the filing of that underlying action was legally
tenable10. Probable cause is a low threshold designed to protect a litigant’s right to assert
arguable legal claims even if the claims are extremely unlikely to succeed11. Tenability must
be measured in light of both the existing authorities and the leeway a litigant must be given to
argue for an evolution of legal precedents The existence or absence of probable cause is a
question of law to be determined by the Court, before the case goes to the jury. The presence
or lack of probable cause is determined as an objective standard; the test is whether any
reasonable attorney would have thought the claim tenable.12 If the underlying complaint’s
causes of action were objectively reasonable, the malicious prosecution claim must fail13.
Only those actions that any reasonable attorney would agree [are] totally and completely
without merit may form the basis for a malicious prosecution suit14. This “less stringent”
standard is based upon what has become known as the Flaherty for determining frivolous
appeals, and “more appropriately reflects the important public policy of avoiding the chilling
of novel or debatable legal claims.” The standard is thus designed to accommodate the

9
Basebe v. Matthews (1867) LR 2 CP 684.
10
Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3rd at page 871.
11
Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.
12
Copenbarger v. International Insurance Company (1996) 46 Cal.App.4th 961, 964.
13
Sierra Club Foundation v. Graham, (1999) 72 Cal.App.4th 1135, 1153
14
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.

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requirement that the court “properly take into account the evolutionary potential of legal
principles. Probable cause is established by showing that the “claim ... is legally sufficient
and can be substantiated by competent evidence...”15 “And just as an action that ultimately
proves non-meritorious may have been brought with probable cause, successfully defending a
lawsuit does not establish that the suit was brought without probable cause.”16

In analyzing the issue of probable cause in a malicious prosecution context, the trial court
must consider both the factual circumstances established by the evidence and the legal theory
upon which relief is sought. A litigant will lack probable cause for his action either if he
relies upon facts which he has no reasonable cause to believe to be true, or if he seeks
recovery upon a legal theory, which is untenable under the facts known to him. “In
determining whether the prior action was legally tenable, i.e., whether the action was
supported by probable cause, the court is to construe the allegations of the underlying
complaint liberally, in a light most favorable to the malicious prosecution defendant.”17
Probable cause to commence an action may be present even where the Plaintiff cannot prevail
at trial. “Counsel and their clients have a right to present issues that are arguably correct, even
if it is extremely unlikely that they will win ... every case litigated to a conclusion has a
losing party, but that does not mean the losing position was not arguably meritorious when it
was pleaded.18

A litigant will lack probable cause for his action either if he relies upon facts which he has no
reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is
untenable under the facts known to him.”19 While these occur at the time of the filing of the
underlying actions, the California Supreme Court held that an attorney may become liable
during the course of the litigation, even if he or she had probable cause to file an action, but
the attorney later learned of facts that made its continued prosecution not objectively
tenable.20

15
Ibid. at pg 821.
16
Plumley v. Mockett, 164 Cal.App.4th at page 1059.
17
Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.
18
Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 741- 743.
19
Sangster v. Paetkau, supra, 68 Cal.App.4th at pages 164-165.
20
Zamos v. Stroud, (2004) 32 Cal.4th 958, 971.

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CASE ANALYSIS

AIR 2006 Gau 181

IN

THE HIGH COURT OF GAUHATI (AGARTALA BENCH)

State Of Tripura and Ors………………………………………………………Appellants

v.

Sri. Hardhan Chowdhury…………………………………………………….Respondent

DIVISION BENCH

[ R.B. MISHRA J.] [ A.B. PAL J.]

AGARTALA

29th JUNE, 2015.

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CONCRETE FACTS

 The Plaintiff-Respondent instituted the Money Suit No. 02 of 1985 against the State
of Tripura and other officials of the Forest Department seeking a decree of damage for
an amount of Rs. 25,000/- on the ground of malicious prosecution launched against
him by the appellants herein.
 He is a timber merchant of the area known as Sonaichheri under Belonia Sub-
Division.
 In the month of November, 1980, he applied for permission to extract from his jote
land 9 karai trees and one gamai tree. He also applied for similar permission to fell 40
karai trees and 2 gamai trees purchased by him from the jote lands of Laxman
Chandra Debnath, Jatindra Das, Subi Kumar Tripura, Atul Chandra Pal, Khetra
Mohan Pal, Danu Tripura and Basi Das of Uttar Sonaichheri.
 The third appellant herein in response to the prayer of the said Respondent directed
him to produce parcha and naksa as per his prayer for extraction of trees from the jote
lands which was accordingly done. Thereafter, the trees were given hammer marks by
the Forest Officials.
 The Plaintiff-Respondent in anticipation of the approval started to fell down the said
trees in the later part of December, 1980 which continued upto January, 1981. The
Plaintiff-Respondent was taken by surprise by his sudden arrest on 9-2-81 by the
Forest Officials and institution of two cases against him, one under Section 379 of the
Indian Penal Code (for short, 'IPC') and the other under Section 33 of the Indian
Forest Act.
 As on the same event, two cases were instituted, the learned Sub-Divisional Judicial
Magistrate (SDJM), Belonia stayed the proceeding in C.R. Case No. 12 of 1981 under
Section 33 of the Indian Forest Act and proceeded with G.R. Case No. 59 of 1981
under Section 379, IPC.
 During the course of trial, the Forest Officials could not prove the charge under
Section 379, IPC and in the result, the Plaintiff-Respondent was discharged. Same
was the fate of C.R. Case No. 12 of 1981 which also came to be closed discharging
the Plaintiff-Respondent.
 However, in the mean time, the 52 valuable trees worth of Rs. 12,500/- was sold in
auction by the said Forest Officials for a meagre amount of Rs. 2010 though the said

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trees were seized from the jote lands of the Plaintiff-Respondent and other persons
noted above.

After the disposal of the criminal cases where the Forest department failed to produce any
prima facie evidence that the trees felled by the said Plaintiff-Respondent were on the khas
lands covered by reserved or protected forest, the instant suit for damages was instituted.

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MATERIAL FACTS

 The Plaintiff-Respondent is a resident of Sonaichheri under Belonia Sub-Division.

 He had applied for felling of trees, to the Divisional Forest Officer, from the “jote”
land of his own and others. The Officer directed him to produce parcha and naksa as
per his prayer for extraction of trees from the jote lands which was accordingly done.
Thereafter, the trees were given hammer marks by the Forest Officials.
 The Plaintiff-Respondent progressed with the felling of trees. However, he was
arrested by the police on the ground of felling trees from the “khas” land.
 Two Criminal cases were lodged against the Plaintiff-Respondent by the police.
However during trial the police could not prove the charges and the Plaintiff-
Respondent was discharged.
 Thereafter Plaintiff-Respondent filed a suit for malicious prosecution. The court
decreed the suit in favour of the Plaintiff-Respondent. The appeal against the decision
was dismissed by the Single Judge of the High Court of Gauhati. A Letters Patent
Appeal was then filed before the division bench of the High Court.

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ISSUES BEFORE THE COURT

 Whether the trees were fell from the khas land or the jot land?
 Whether the action of forest officials was bonafide and not malicious.?

ARGUMENTS ADVANCED

APPELLANTS-

 The appellants said that the Plaintiff-Respondent had applied twice for felling of lands
from the khas land in North Belonia but it was rejected.
 The Ratanpur Beat Officer had hammer-marked trees from the khas land. The trees
were then put on a successful auction.
 Thereafter, the Plaintiff-Respondent started felling those trees without permission
from the Forest Officials which had given rise to the two proceedings under Section
379, IPC and under Section 33 of the Indian Forest Act.
 The appellants made effort to derive support from the provision of Section 69 of the
Indian Forest Act, which says that any Forest produce is the property of the
Government; such produce shall be presumed to be the property of the Government
until the contrary is proved.
 They thus argued that the Forest officials acted in a bona-fide manner, in discharge of
their duties.

RESPONDENT-

 The Respondent maintained that the had applied for the felling of trees from the land
of his own and others. He produced applications sent to the forest Officer for the
same.
 He produced evidence which proved that the police had seized the fallen trees from
the land of those, with whom the Respondent has contracted for the felling of trees.
 The others who were produced as witnesses maintained that they had solved the wood
of their trees to the Plaintiff-Respondent.

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DECISION OF THE COURT

On the first issue, the Hon’ble High Court said that ext. 4 and ext. 5 filed with the plaint in
the trial court establish the fact that the trees were felled from the jote land and not the khas
land of Belonia.

On the second issue, the Court found no reason to press into service the said provision for the
purpose of drawing any presumption because it found that the trees were felled from the jote
land and not from the khas land, as claimed by the appellants and, this admitted position
nullifies the plea of good faith taken by the official Respondent.

The court thus, dismissed the Letters Patent Appeal.

RATIO DECIDENDI

If a person is charged in a frivolous criminal case, then the absence of reasonable ground for
the State machinery to initiate proceedings and its attempt to pursue the case would reject the
claim of a bona-fide action in discharge of duty, on the part of the State machinery.

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CRITICAL ANALYSIS OF THE JUDGMENT

The judgment is a leading case law for the tort of Malicious Prosecution. It also finds its
reference in the book, The Law of Torts, by R. K. Bangia.

In the instant judgment, the Hon’ble High Court of Gauhati has propounded the link between
the absence of reasonable and probable cause for malicious prosecution and malice. The
Defendants-Appellants in the present case were the officials of the Forest Dept. and receive
statutory veil of protection for their actions. The Defendants-Appellants did try to use the veil
to their rescue by pleading the defence of S. 69 of the Indian Forest Act which says that
unless the contrary is proved, a property is presumed to be the property of the Government.
Thus, they tried to present their action to be bona-fide, in discharge of their faithful duty and
that malice was absent in their conduct.

The Hon’ble Court however, ruled against their favour because there were sufficient
evidences to suggest that the prosecution by the Forest Officials was in baseless.

Thus in this case, the court did not confine the ambit of malice to personal spite against
individuals but extended it to include cautious violation of the law to the prejudice of another.

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BIBLIOGRAPHY

 P. R., Jr., Malicious Prosecution: Probable Cause: Defendant's Belief, California Law
Review, Vol. 12, No. 4 (May, 1924), pp. 310-314.
 Bangia, R.K., The Law of Torts, Allahabad Law Agency,2010(22nd Edition).
 www.manupatra.com
 www.jstor.com
 www.legalserviceindia.com

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