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LAW OF TORTS

TOPIC: MALICIOUS PROSECUTION

SUBMITTED BY:-

HEENA YASMIN GULAMMUSTAFA SHAIKH

BBA LLB SEM -I

ROLL NO. -25

GUIDED BY:-

Mr.SOURADEEP RAKSHIT

ASST. PROF OF LAW

Indian Institute of Legal Studies


Dagapur, Matigara, Siliguri, Darjeeling, West Bengal 734010

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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest


thanks to Mr, Souradeep Rakshit, Asst. Prof In Law, Indian Institute of Legal Studies, for
his invaluable guidance, sound advice and affectionate attitude during the course of my
studies.

I have no hesitation in saying that he molded raw clay into whatever I am through his
incessant efforts and keen interest shown throughout my academic pursuit. It is due to his
patient guidance that I have been able to complete the task.
I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and
making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout
the project work.

_____________ Heena yasmin gulammustafa shaikh

Teacher’s Signature Student’s Signature

Date: __/__/____ Date: / /2017

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TABLE OF CONTENTS

RESEARCH METHODOLOGY.................................................................................................... 5

TABLE OF CASES ........................................................................................................................ 6

CHAPTER- 1 INTRODUCTION .................................................................................................. 7

CHAPTER-2 ESSENTIALS OF MALICIOUS PROSECUTION............................................... 13

CHAPTER-3 CASE STUDY ...................................................................................................... 15

CONCLUSION ..............................................................................Error! Bookmark not defined.

BIBLIOGRAPHY

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RESEARCH METHODOLOGY

A. AIMS AND OBJECTIVES

The aims and objectives of this project are to understand the malicious prosecution. This
project also aims at studying the types of essentials, how it is done and different cases on
malicious prosecution.

B. STATEMENT OF PROBLEM
The statement of problem in the case West Bengal electricity Board v. Dilip Kumar
Ray is whether the finding of malicious prosecution should be recorded in previous
proceedings where concurrent finding of fact had been recorded that plaintiff had
proved necessary ingredients of malicious prosecution.

C. RESEARCH HYPOTHESIS

Research is commonly referring to a search of knowledge. It is done with the help of study,
observation, comparison and experiment. Thus, the search for knowledge through
objective and systematic method of finding solution to a problem is research. This research
work is an attempt of learning the malicious prosecution essentials and cases related to it.

D. RESEARCH QUESTIONS:
1. What is malicious prosecution?
2. What are the essentials of malicious prosecution?
3. Cases on malicious prosecution?

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E. METHODOLOGY OF RESEARCH

“Methodology” does not merely mean the methods used by the researcher to complete his
research work but it also means and implies the concepts and theories which underlie the
methods. The methodology used for the completion of this project is Doctrinal and Analytical.
Doctrinal research in law field indicates arranging, ordering and analysis of the structure,
framework and laws by extensive surveying of literature but without any field work.

F.MODE OF CITATION

Blue book mode of citation.

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TABLE OF CASES:

1) Balbhaddar Singh v. Badri Sah, 199, 200, 594.


2) Bhogilal v. Sarojbahen, 210, 212, 595.
3) Bolandanda Pemmayya v. Ayaradara, 200,594.
4) Khagendra Nath v. Jabob Chandra, 202.
5) Pannalal v. Shrikrishna, 202.
6) Shiv Shankar Patel v. Smt. Phulki Bai, 204,223,403.
7) State of Tripura v. Ranjit Kumar,215.
8) West Bengal State Electricity Board v. Dilip Kumar Ray,197,211,413.
9) Wiffen v. Bailey Romfort U.D.C.,217.

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Chapter-1

INTRODUCTION

A Malicious Prosecution is defined as “a judicial proceedings instituted by one person


against another, from wrongful or improper motive and without probable cause to sustain
it.” It is said to be “a prosecution on some change of crime which is willful, wanton, or
reckless or against the prosecutor’s sense of duty or right, or for ends he know or is bound
to know are wrong and against the dictates of public policy.”

Malicious prosecution consists in instituting unsuccessful criminal proceedings


maliciously without reasonable and probable cause. When such prosecution causes about
damage to the party prosecuted, it’s a tort for which he can bring an action.

Malicious prosecution is a common law intentional tort, while like the tort of abuse of
process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or
causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought
without probable cause and (3) dismissed in favor of the victim of the malicious
prosecution. In some jurisdictions, the term “malicious prosecution” denotes the wrongful
initiation of criminal proceedings, while the term “malicious use of process” denotes the
wrongful initiation of civil proceedings.

Difference between malicious prosecution and malicious use of process (or malicious use of
process)

1) Malicious prosecution means process to be issued maliciously, malicious use of


process means using legal process for some purpose other than it was issued by the
law.

2) When malicious prosecution through criminal or civil proceedings cause actual


damage to the party prosecuted, or when the proceedings has ended in the favour of
the defendant, he or she may sue for tort damages, known as malicious use of
prosecution.

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Chapter-2

ESSENTIALS OF MALICIOUS PROSECUTION

1) That he was prosecuted by the defendant;


2) The prosecution was instituted without reasonable and probable cause;
3) The defendant acted maliciously and not with a mere intention of carrying the law
into effect;
4) The proceedings complained of terminated in favour of the present plaintiff.
5) The plaintiff suffered damage as a result of the prosecution.

This essential ingredient requires the proof of two elements, (i) that there was
“prosecution” and (ii) the same was instituted by the defendant.

(i) Prosecution:-

It should be a criminal prosecution rather than a civil action. Prosecution means


criminal proceedings against a person in a court of law. A prosecution is there when a
criminal charge is made before a judicial officer or a tribunal.

Proceedings before the police authorities are proceedings anterior to prosecution

CASE:- Bolandanda Pemmayya v. Ayaradara,1

In this case, the defendant filed a complaint before the sub-inspector of Police alleging
that the plaintiff had committed the theft of cardamom and fish traps. The Sub-Inspector
recorded the statements of both the plaintiff and the defendant and also made a search of
the plaintiff’s house. He then made a note on the complaint that it was false and filed it.
The plaintiff filed a suit against the defendant to claim damages or malicious prosecution.

It was held that mere filing of a complaint before the police, where such complaint is
ordered to be filed in that office only and no judicial authority is set motion as consequence

1
A.I.R 1966 Mysore 13.

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of such complaint does not amount to prosecution.2 The suit of the plaintiff was, therefore,
dismissed.

“To prosecute is to set the law in motion, and the law is only set in motion by an
appeal to some person clothed with judicial authority in regard to the matter in question.”3

When does the prosecution commence

The prosecution is not deemed to have commenced before a person is summoned to


answer a complaint.4

CASE:- Khagendra nath v. Jabob Chandra,5

In this case there was mere lodging of ejahar alleging that the plaintiff wrongfully took
away the bullock cart belonging to the defendant and requested that something should be
done. The plaintiff was neither arrested nor prosecuted. It was held that merely bringing
the matter before the executive authority did not amount tp prosecution and, therefore, the
action for malicious prosecution could not be maintained. There is no commencement of
the prosecution when a magistrate issues only a notice and not a summons to the accused
on receiving a complaint of defamation and subsequently dismisses it after hearing both the
parties.6

(ii) Prosecution should be instituted by the defendant

A prosecutor is a man who is actively instrumental in putting the law in force for
prosecuting another. Although criminal proceedings are conducted in the name of the state
2
Ibid., at 14
3
Dhauji Shaw Rattanji v. Bombay Muncipality, A.I.R. 1945 Bom. 320; Pandurang v.Dhondiba, (1963) 1 Mys. L.j.
292; Dattatraya Pandurang v. Hari keshav, A.I.R. 1949 Bom. 100; S.T. Sahib v. Hasan Ghani Sahib, A.I.R. 1947 Mad.
646; Mohammad Amin v. Jogendra Kumar, A.I.R 1947. P.C. 108
4
Yates v. The Queen, (1885) 14 Q.B.D. 648. It was followed in De Rozario v. Gulab Chand Anundjee, (1910) I.L.R.
37 Cal. 358; Golap Jan v. Bholanath Khettry, (1911) I.L.R. 38 Cal.880; Nagendra Nath Ray v. Basanta Das Bairagya,
(1930) 57 Cal. 25; Godha Ram v. Devi Das, (1914) P.R. No. 1 of 1945, Rama Jena v. Godadhar, A.I.R. 1961 Orissa
118.
5
A.I.R 1977 N.O.C. 207 (Gau.) : 1976 Assam L.R. 379.
6
Sheikh Meeram Sahib v. Ratnavela Mudali, I.L.R, (1912) 37 Mad. 181; Sanjivi Reddy v.Koneri Reddi, (1925) 49
Mad. 315; Arunachella Mudaliar v. Chinnamunusamy Chetty, (1926) M.W.N. 527; Vattappa Kone v. Muthu
Karuppan Servai, (1941) 1 M.L.J. 200; (1941) M.W.N. 226.

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but for the purpose of malicious prosecution, a prosecutor is the person who instigates the
proceedings.

CASE:- Balbhaddar v. badri sah,7

In this case the privy council said, “In any country where, 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.”

A person cannot be deemed to be a prosecutor merely because he gave information of some


offence to the police. The mere giving of information, even though it was false, to the police
cannot give cause of action to the plaintiff in a suit for malicious prosecution if he (the
defendant) is not proved to be the real prosecutor by establishing that he was taking active part in
the prosecution, and that he was primarily and directly responsible for the prosecution.

CASE:- Pannalal v. Shrikrishna,8

In this case, the plaintiffs, Pannalal and others, filed a suit for malicious prosecution against the
defendants Shrikrishna and some other persons. The plaintiffs contended that the defendants
lodged a complainr with the police on 14.1.1950 about the commission of a dacoity and later
they made statements, during investigation by the police, implicating the plaintiffs in the alleged
dacoity. The plaintiffs were prosecuted for the offence under Sec. 395, I.P.C., but ultimately
acquitted. After their acquittal, the plaintiffs sued the defendants for malicious prosecution on the
ground that the plaintiffs had been prosecuted by the defendants maliciously and the defendants
had also acted without reasonable and probable cause. The Madhya Bharat High Court held that
the defendant could not be made liable for malicious prosecution on the ground that the plaintiffs
had failed to prove that they had been prosecuted by the defendants. The defendants had only
made the statement to the police disclosing the participation of the plaintiffs in the alleged
dacoity and thereafter did not do anything like producing false witnesses, etc. The prosecution
was, therefore, actually launched by the police.

8
A.I.R. 1995 Madh. Bha. 124.

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In order that a private person can be termed as prosecutor for the purpose of his liability for
malicious prosecution, he must have done something more than merely lodging the complaint
with the police for some defence. He must have been actively instrumental in the proceedings
and must have made his best efforts to see that the plaintiff is convicted for the offence. Te
position was thus explained in the case of Pannalal v. shrikrishna :9

“The fact that a private person who merely makes a statement of complaint to the police
giving out information which he believes to be correct, would not make him “the prosecutor.” To
become prosecutor, he must be actively instrumental in putting the criminal law in motion. When
there is no evidence of the conduct of the private person before and after he made the statement
or complaint to the police to show principal part in the conduct of the case and had done all he
could do to secure the conviction of the plaintiff in a suit for malicious prosecution, it cannot be
said that he was the prosecutor so as to sustain an action against him for malicious prosecution.”

2. Absence of reasonable and probable cause

The plaintiff has also to prove10 that the defendant prosecuted him without reasonable and
probable cause.11 Reasonable and probable cause has been defined as “ an honest belief in the
guit of the accused upon a full conviction, founded upon reasonable grounds, of the existence of
circumstances, which assuming them to be true would reasonably lead any ordinarily prudent
man placed in the position of the accused to the conclusion that the person charged was probably
guilty of the crime imputed.12 There is reasonable and probable cause when the defendant has
sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed.13 The
prosecutor need not be convinced as to the guilt or maintainability of the criminal proceedings
before he files the complaint, but he may only be satisfied that there is a proper case to approach
the court.14 Thus, neither mere suspicion is enough nor has the prosecutor to show that he
believed in the probability of the conviction.15

9
Ibid., at 125.
10
See Abrath v. North Eastern Railway Co., (1883) 11 Q.B.D. 440, at 445.
11
Feroz-ud-Din v. Mohammed Lone, A.I.R. 1977 N.O.C. 369 (J. & K.); 1977 Kash. L.J. 350.
12
Hicks v. Faulker, (1878) 8 Q.B.D. 167, 171, per Hawkins, J.; approved and adopted in Herniman v. Smith, (1938)
A.C. 305, 316.
13
Hicks v, Faulker, (1878) 8 Q.B.D. 167, 173
14
Brijlal v. Prem chand, A.I.R. 1974 Raj. 124, at 129.
15
Davson v. Vasandau, (1863) 11 W.R. 516, 518

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CASE:- Shiv Shankar Patel v. Smt. Phulki Bai,16

In this case the respondents were to face criminal prosecution for 8 years for alleged theft of
crops, which revealed to have been harvested and sown by the respondents belonging to the
husband of the respondent. Prosecution ended in acquittal. It was said to have been launched not
with the intention of carrying law into effect, but with an intention which was wrongful in point
of fact, the respondents were awarded compensation of Rs. 10,000/- for the suffered loss of
reputation in their society and mental agony.

3. Malice

It is also for the plaintiff to prove that the dependant acted maliciously in prosecuting him,
i.e., there was malice of same indirect and illegitimate motive in the prosecutor,17 i.e., the
primary purpose was something other than to bring the law into effect.18 It means that the
defendant is actuated not with the intention of carrying the law into effect, but with an intention
which was wrongful in point of fact.19

‘MALICE’ means the presence of some improper and wrongful motive, that is to say, an intent
to use legal process in question for some other than its legally appointed or appropriate
purpose.20 Apart from showing that there was absence of reasonable and probable cause, it is
also to be proved that the proceedings were initiated with a malicious spirit, that is, from an
indirect and improper motive, ans not in furtherance of justice.21 The prosecution must have been
launched with an oblique motive only with a view to harass the plaintiff.22 It means a wish to
injure the plaintiff rather than to vindicate the law. It is, however, not necessary to prove hatred
or enmity for establishing malice.23 Moreover, if the First Information given by the defendant to
the policies based upon the defendant’s own knowledge, and information given by his brother
and two eyewitness, the fact that there was existing enmity between the plaintiff and the

16
A.I.R 2007 (NOC) 1207 (Chh.).
17
Abrath v. North Eastern Railway Co., (1886) 11 A.C. 247, 251; Per Lord Bramwell.
18
K.T.V. Krishna v. P.T. Govindam, A.I.R. 1989 Kerala 83, at 85.
19
Abrath v. North Eastern Railway Co., (1883) 11 Q.B.D. 440, AT 448, Per Brett, M.R.
20
Jogendra v. Lingaraj, A.I.R. 1970 Orissa 91, at 100;State of Bihar v. Rameshwar Prasad A.I.R. 1980 Pat. 267.
21
Abrath v. North Eastern Railway Co., (1883) 11 Q.B.D. 440, at 455.
22
Bhogilal v. Sarojbahen, A.I.R. 1979 Guj.200.
23
Bhagwan Dutt v. Mahmood Hasan, A.I.R. 1983 N.O.C. 70 (Bom).

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defendant cannot lead to the conclusion that information given by the defendant must have been
actuated by malice.24

Case:- Bhogilal v. Sarojbahen,25

In this case A agreed to purchase B’s house for Rs 15,000 and paid an earnest money of Rs.
2,000 to B. Subsequently, A discovered that B did not disvlose the fact that the house had
already been mortgaged, but rather he made a misleading statement to A that the title of the
house was clear and there was no mortgage or debth outstanding. A filed a criminal case for
cheating under Sec. 420, I.P.C. B was discharged. In an action by B against A for malicious
prosecution, it was held that under the above stated circumstances, it could not be said that A
was acting maliciously. He honestly believed that he had been cheated. He was, therefore, not
liable for malicious prosecution.

4. Termination of proceedings in favour of the plaintiff

It is also essential that the prosecution terminated in favour of the plaintiff.26 If the plaintiff has
been convicted by a court, he cannot bring an action for malicious prosecution,27 even though he
can prove his innocence and also that the accusation was malicious and unfounded.

Termination in favour of the plaintiff does not mean judicial determination of his innocence, it
means absence of judicial determination of his guilt. The proceedings are deemed to have
terminated in favour of the plaintiff when they do not terminate against him. Thus, the
proceedings terminate in favour of the plaintiff if he has been acquitted on technicality,28 or the
prosecution has been discontinued,29 or the accused is discharged.30

CASE:- State of Tripura v. Ranjit Kumar Debnath31

24
K.N. Hiriyannappa v. K.M. Venkatagiriyappa, A.I.R 1985 N.O.C. 215 (Kant.).
25
A.I.R. 1974 All. 129.
26
Castrique v. Behrens, (1861) 3 E. and E. 709, at 721, per Crompton, J.
27
Wilkins v. Fletcher, (1611) 1 Blust 185.
28
Wicks v. Fentham, (1971) 4 T.R. 247.
29
Watkins v. Lee, (1829), 5 M. and W. 270.
30
Nagendra Nath Roy v Basanta Das Bairagya, (1930) 57 C.W.N. 25.
31
A.I.R 2007 Gau. 108.

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In this case thecompetant officers including the B.S.F., on request of the Civil Administration
participated in carrying out their official duties of raid and seizure on the basis of specific
information about hoarding of illegal items not being authorized to be kept under the licence
with the sole purpose for smuggling of those goods outside India. The criminal case registered
against the respondent, however, resulted in his acquittal. In suit by the respondent-plaintiff, the
trial court held him entitled to claim compensation. The Gauhati High Court in appeal filed by
the state held that the proceedings taken against the plaintiff-respondent could not be said to be a
malicious prosecution as no malice was present in the case on the part of the government
officials. The government officers having performed their official duties in good faith, were held
not liable for any payment of compensation.

5. Damage

It has also to be proved that the plaintiff has suffered damage as a result of the prosecution
complained of. Even though the proceedings terminate in favour of the plaintiff, he may have
suffered damage as a result of the prosecution. Damage id the girt of the action.In a claim for
malicious prosecution, the plaintiff can thus claim damages on the following three courts.

1) Damage to the plaintiff’s reputation;

2) Damage to the plaintiff,s person;

3) Damage to the plaintiff’s property.

A false charge of the criminal offence obviously injures the reputation. Apart from that
damage to the person may result when a person is arrested and deprived of his liberty and also
when there is mental stress on account of prosecution. Injury to the property may also be there as
a person who is prosecuted has to spend money for his defence.

Case:- Wiffen v. Bailey Romfort U.D.C.32 The plaintiff having failed to comply with its notice
requiring him to clean the walls of some rooms in his house was prosecuted by the defendants,
and on acquittal, he sued for malicious prosecution. It was held that there was no ground for
action, since the failure of the prosecution did not damage his reputation.

32
(1915) ⁴ K.B. 600.

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CHAPTER 3:

CASE STUDY:

WEST BENGAL STATE ELECTRICITY BOARD V. DILIP KUMAR ROY,

Case no:- Appeal (civil) 5188 of 2006

Petitioner:- Dilip Kumar Ray

Bench:- ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

Judgement:

Judgement (Arising out of SLPC c) No: 23556 of 2004)

Leave granted.

The apex court in West Bengal State Electricity Board v. Dilip Kumar Ray33, explained that
there were two essential elements for constituting a malicious prosecution,

1) That no probable cause existed for instituting the prosecution or suit complained of; and
2) That such prosecution or suit terminated in some way favourably to the defendant therein.

Once, a wrongful criminal or civil proceedings instituted for an improper purpose and
without probable cause,has ended in the defendant’s favour, he or she may sue for tort
damages termed as malicious prosecution and an action for abuse of process,

The supreme court explained 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”.

In this case, the respondent, an employee of the board, was suspended and disciplinary
proceedings were instituted against him. An F.I.R. was lodged against him alleging
misconduct and commission of various offences. Since no charge sheet was issued for four

33
W.B.S.E.B V. D.K. Ray , A.I.R.2007 S.C. 976

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months, the respondent had apprpached the Hig Court for quashing the disciplinary
proceedings. However, on the intervention of the court, the charge- sheet was issued and an
inquiry was held. But, the board resolved not to continue the case further and the orders of
suspension of the respondent filed a suit in the court of Assistant District Judge claiming
damages for the institution of displinary proceedings by the Board as also the newspaper was
purportedly made publication of certain news items. Te trial court decreed the suit with the
finding that it was highly probable that “the plaintiff was suspended for extraneous reasons”.
The plaintiff was entitled to damages for harassment by treating the some as damages for
malicious prosecution causing harassment by way of mental pain also.

The Apex court, however, held the conclusion drawn by the High court as confusing,
contradictory and not conveying any sense. The court, thus, set aside the order of the High
Court granting damages for malicious prosecution.

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Conclusion:

Malicious prosecution involves the wrongful institution of criminal proceedings by one private
citizen against another private citizen that results in damages to the plaintiff.In order for a cause
of action to be viable, the criminal proceedings must be initiated by a charge made to the police
or some other public official so as to cause the plaintiff’s arrest. Further, the plaintiff must show
that the criminal proceedings concluded with an indication that he was innocent.

Acquittal by a jury, dismissal for lack of evidence, or refusal by a grand jury to indict
qualifies as a conclusive indication that the plaintiff is innocent. Dismissal on a technicality, a
guilty verdict overturned on appeal, or a mistrial, does not qualify. In addition, the plaintiff must
demonstrate that the defendant had no probable cause to institute criminal proceedings against
the plaintiff.Also, the plaintiff must show that the defendant’s motive was malicious when he
instituted the proceedings.As far as damages go, the plaintiff can recover all expenses relating to
his defense, as well as his emotional damages, economic damages and, where appropriate,
punitive damages.

There are two possible defenses to a charge of malicious prosecution. The first is the plaintiff’s
actual guilt. If the plaintiff is found guilty of the charges filed against him, or if the case
concludes in a manner that does not indicate innocence, the plaintiff cannot recover. The second
defense is that of privilege. However, only judges, prosecutors and other law enforcement
officials have an absolute privilege from liability.Some jurisdictions now recognize a tort of
malicious institution of civil proceedings. The elements to this tort are the same as in malicious
prosecution and the damages that the plaintiff can recover are the same as well.

Finally, there is a tort called abuse of process, which establishes liability for intentionally using
some court process or another for a purpose other than that for which the process was meant. To
prove a prima facie case of abuse of process, the plaintiff must prove the intentional misuse of a
court process that resulted in damages to the plaintiff. Unlike with malicious prosecution, the
plaintiff does not have to prove that the defendant lacked probable cause in employing the
misused court process. Also, the plaintiff does not have to prove that the overall case ended in
his favor.

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BIBLIOGRAPHY:

WEBSITES REFFERED:

1) www.legalserviceindia.com
2) www.indiankanoon.org
3) www.wikipedia.org
4) http://legaldictionary.thefreedictionary.com

BOOKS REFFERED:

Dr Bangia, R.K, Law of Torts, 2017 Twenty-Fourth Edition.

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