Introduction: Malicious Abuse of Process
The legal system is designed as a shield for the innocent and a sword for justice. However, when the machinery of the law is intentionally subverted to harass, intimidate, or ruin an individual, it transforms from a pursuit of truth into a “malicious abuse of process.”
At the heart of this legal paradox lies the concept of Malice—a psychological element that, when combined with the groundless initiation of criminal proceedings, gives rise to the tort of Malicious Prosecution. Understanding this area of law is critical for balancing the right of citizens to report crimes against the right of individuals to be free from unjustified, bad-faith litigation.
Defining the Concept of Malice in Tort Law
I. Defining the Term ‘Malice’
In common parlance, “malice” implies spite, ill-will, or a desire for revenge. However, in the academic and legal sense, specifically within the Law of Torts, malice carries a nuanced definition.
Legal Malice and Actual Malice
| Type of Malice | Explanation |
|---|---|
| Legal Malice (Malice in Law) | This refers to a wrongful act done intentionally without just cause or excuse. It does not necessarily require a feeling of hatred. |
| Actual Malice (Malice in Fact) | This is the focus of malicious prosecution. It refers to the presence of an improper and indirect motive. |
The Legal Standard of Malice
The Legal Standard: Malice means that the defendant was motivated by something other than a desire to bring a person to justice or to vindicate the law.
Practical Example
Practical Example: If “A” sets the criminal law in motion against “B” not because he believes “B” stole his watch, but because he wants to pressure “B” into settling a separate land dispute, “A” is acting with malice.
II. “Malicious Prosecution Is In Essence A Malicious Abuse Of The Process Of A Court.”
This statement highlights that the tort is not merely about a “mistake” in the legal system, but a perversion of it.
The court process is a sacred mechanism for grievance redressal. When a person uses this process—not to seek justice—but as a weapon to cause harm, they are “abusing” the power of the state. As held in various jurisdictions, the law protects a “bona fide” complainant even if they are mistaken, but it withdraws that protection the moment the process is used for an ulterior, collateral purpose.
In the leading case of West Bengal State Electricity Board v. Dilip Kumar Ray (2007), the court emphasized that the essence of this tort is the liberty of the individual being sacrificed to the recklessness or selfishness of the accuser.
III. Essential Elements Of Malicious Prosecution
For a plaintiff to succeed in a suit for malicious prosecution, they must prove five rigorous elements. The burden of proof lies heavily on the plaintiff.
1. Prosecution By The Defendant
The plaintiff must prove that the defendant was the “mover” of the proceedings. Merely providing information to the police is not always enough; the defendant must have been actively instrumental in the prosecution.
Case Reference: Gaya Prasad v. Bhagat Singh (1908). The court ruled that the conduct of the complainant before and after the complaint must be looked at to determine if they are the “real” prosecutor.
2. Termination Of Proceedings In Plaintiff’s Favor
The plaintiff cannot sue for malicious prosecution while the criminal case is still ongoing. The case must have ended in an acquittal, discharge, or dismissal of the complaint.
Note: If the plaintiff was convicted, they cannot sue, as the conviction is conclusive evidence that there was reasonable cause.
3. Absence Of Reasonable And Probable Cause
This is the most critical element. The plaintiff must show that the defendant had no honest belief in the guilt of the accused based on the facts available at the time.
Case Reference: Hicks v. Faulkner (1878). The court defined “reasonable and probable cause” as an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds.
4. Presence Of Malice
As defined earlier, the plaintiff must prove the defendant was motivated by an “improper motive.”
Illustration: If “X” knows “Y” is innocent but plants evidence to get “Y” arrested to prevent “Y” from winning an election, “X” has acted with malice.
5. Suffered Damage
The plaintiff must prove that the prosecution caused them one of three types of damage:
- Damage To Reputation (e.g., social stigma).
- Damage To Person (e.g., imprisonment or physical harm).
- Damage To Property (e.g., high legal expenses to defend the case).
IV. Illustrative Case Laws And Scenarios
Leading Case: Abrath v. North Eastern Railway Co. (1886)
In this landmark case, it was established that the plaintiff must provide affirmative evidence of the lack of reasonable cause and the presence of malice. If the defendant acted with reasonable care and honestly believed the facts, they are not liable, even if the prosecution eventually fails.
Leading Case: Glinski v. McIver (1962)
The House of Lords clarified that “Honest Belief” is the crux of reasonable and probable cause. If the prosecutor honestly believes the accused is guilty, they are protected, regardless of how a “reasonable man” might have interpreted the evidence.
Practical Illustration
Imagine Person A finds their car window broken and sees Person B running away. A calls the police and files a complaint. If it turns out B was just jogging and someone else broke the window, A is not liable for malicious prosecution because A had “reasonable and probable cause” and no “malice.”
However, if A knows B didn’t do it, but tells the police it was B just because A dislikes B’s family, all elements are met: A is the prosecutor, there is no reasonable cause, and malice is present.
V. Conclusion
The law of malicious prosecution serves as a delicate balancing act. On one hand, it must not be so easy to sue that it discourages honest citizens from reporting crimes (chilling effect). On the other hand, it must provide a robust remedy for those whose lives, reputations, and finances are decimated by bad-faith litigation. By requiring the plaintiff to prove the absence of “reasonable and probable cause” alongside “malice,” the legal system ensures that only those who truly subvert the process of the court are held accountable for its abuse.
Written By: Judge Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Profile Overview
p>Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation’s most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Contact Information
Email: [email protected]
