ABUSE OF LEGAL PROCEEDINGS

BY
Name of the student: Sheik Shiny Haneefa
Roll No.: 21LLB109
Semester: 1st
Name of the program: 5-year B.A., LL.B. (Hons.)
Name of the Faculty Member: Prof. Sunitha BVS
Date of Submission: 30th January 2022

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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 ACKNOWLEDGEMENT

I would like to express my sincere thanks to Asst Prof. Sunitha BVS who give me the
opportunity to do research on the topic of Abuse of Legal Proceedings. Throughout this
research I gained a great deal of insight.

And also, I would like Thank Damodaram Sanjivayya National Law University Library team
who provided access to Library which helps me in gathering the material required for the
research. Also, I would want to convey our gratitude to everyone who has provided advice in
finishing this paper.

Thank you.

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 ABSTRACT

This paper considers how the legal proceedings are being abused in various ways such as
malicious prosecutions, malicious civil proceedings, malicious legal process, abuse of legal
process and misfeasance in public offences. Legal proceedings are being abused when they are
used for a purpose or in a manner that differs substantially from their normal and proper use.
In this paper the researcher discusses the malicious prosecutions, malicious civil proceedings,
malicious legal process, abuse of legal process in detail.

Malicious prosecution is generally a prosecution that filed against a person without any
probable cause that results in damages. Malicious civil proceedings are occurred when the
plaintiff filed a case in malicious intent rather than interest in justice. Abuse of process occurs
when something is so unfair and wrong that the court should not permit a prosecutor to pursue
a regular proceeding in any other respect. Further this paper mentions the elements, damages
and remedies for the respective abuse of legal proceedings in detail. And discusses the case
judgements that deal with these abuses.

Keywords: Abuse Legal Proceedings, malice, malicious prosecutions, abuse of legal process,
malicious civil proceedings, Justice

SYNOPSIS

Objective: The following are the objectives of this study:

1. To know what constitute abuse of legal proceedings.

2. To understand the elements that are essential to be there to approach the court if
there is any abuse in proceedings.

Scope of the Study: The study explores the malicious prosecution and abuse of process
which is limited to India.

Significance of the Study: This study helps the reader to know what are types in abuse
of legal proceedings that are maliciously filed against another to acquire motive other than
court process.

Research Methodology: The current research is based mostly on data and information
acquired from various web articles, journals, supreme court judgements, publications and other
sources. The researcher has used doctrinal and explanatory study.

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Research Mode: The researcher has used OSCALA mode of citation.

Literature Review: In this project, information is gathered from various primary and
secondary sources.

Primary sources: -

1. Indian Penal Code, 1860

2. Code of Criminal procedural
3. SCC Online

Secondary sources: -

1. “Law of Torts by Ratanlal and Dhirajlal (26th edition)”- The researcher has taken this
book to know this topic in detail. It explains the types of malicious proceedings that
how individuals are misusing the court process for their fulfilments. It mentions
malicious prosecution, malicious civil proceedings, malicious abuse of process, abuse
of process in the chapter of malicious proceedings.
2. “Law of Torts by R.K. Bangia’s (25th edition)”- The Researcher has taken some of the
topics which is mentioned in the chapter abuse of legal procedure. Malicious
prosecution, Malicious civil proceedings are the topics mentioned under abuse of legal
procedure.

Research Question:

Weather abuse of proceeding reduces the trust of people in judicial system?

Research Design:

Introduction – This part discusses the abuse of proceedings.

Malicious prosecution – This part discusses the malice in prosecution and the definition,
elements, damages, defences and case studies regarding to malicious prosecution.

Malicious Civil Proceedings – This part discusses the malice in civil proceedings and its
essentials.

Malicious legal process – This part discusses the malice in legal process and remedies to it.

Abuse of process – The section discusses the abuse in legal process.

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 TABLE OF CONTENTS

• ACKNOWLEDGEMENT…………………………………………………………2
• ABSTRACT………………………………………………………………….….….3
• SYNOPSIS………………………………………………………………….………4

CHAPTERS:

1. INTRODUCTION………………………………………………………………….6
2. MALICIOUS PROSECUTIONS………………………………….………….……7
3. MALICIOUS CIVIL PROCEEDINGS………………………………….….……13
4. MALICIOUS ABUSE OF PROCESS…………………………………………….14
5. ABUSE OF PROCESS…………………………………………………………….16
6. CONCLUSION…………………………………………………………………….19
7. REFERENCE………………………………………………………………………20

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INTRODUCTION

When a judicial proceeding is diverted from its intended course in order to serve extortion,
oppression, or to exert pressure in order to attain an unlawful purpose, it is abused. Abuse of
Legal Proceedings refers to a set of torts including the wrongful or undue filing of lawsuits for
a variety of purposes. The public's right of access to the courts is based on the assumption that
claimants would act honestly and with probable cause. However, some people may abuse their
privileges in order to carry out their malicious intent and disguise their unlawful activities by
bringing cases against innocent persons. When a plaintiff is determined to have brought a case
for the purpose of harassing or inconveniencing the defendant, or when the court dismisses the
case in favour of the defendant, the defendant may claim damages for losses incurred
throughout the legal proceedings. Malicious prosecution, wrongful civil proceedings, and
abuse of process allegations may be used to justify these losses. Abuses in legal proceeding
occur when it is brought expressly for the purpose of harassing or suppressing an opponent. It
might take the form of a major frivolous lawsuit, or it can take the form of the filing of many,
burdensome, and unwarranted petitions in a matter that is otherwise a valid cause of action.

It is the right of every citizen to be protected from being unjustly charged in court for unjust
charges. Even if he is ultimately cleared of the specific accusation, this will give him undue
anxiety, concern, discomfort, trouble, and expenses. In such circumstances, the law has
rightfully authorised affected individuals to seek compensation from those who wrongfully put
the legislation in action. As a result, initiating some types of legal proceedings against the other
person intentionally and without reasonable and probable grounds is an actionable wrong.
There is certainly a clash here between two opposing ideals, both of which ought to be
recognised and accepted, namely, the right to bring criminals to justice, as well as the need to
prevent false accusations against innocent individuals. In order to prevent injustices and abuses,
a legal system must be able to stop them and compensate the victim.

Both the criminal and civil legal systems may be abused and used for reasons other than what
they were designed for. A claim of malicious prosecution may emerge if a person files a
criminal complaint against the other person knowing that no crime has been committed.
Similarly, A claim of abuse of process may also be justified if someone initiates a civil claim
against someone else that is frivolous or without a sufficient basis. Therefore, here the
researcher discusses the malicious prosecutions and abuse of process in detail

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 MALICIOUS PROSECUTION

DEFINITION:

When one party intentionally and maliciously brings a frivolous lawsuit against the other, this
is known as malicious prosecution. Criminal and civil cases lacking many evidences are usually
not pursued and occasionally criminal charges or civil lawsuits may be maliciously filed so as
to intimidate, harass, defame, or injure the other side. An action of this kind is called malicious
prosecution. It is a misuse of the judicial system since it is designed to deliver justice to the
innocent, yet innocent individuals are convicted through Malicious Prosecution. The defendant
becomes the plaintiff, and the plaintiff becomes the defendant.

The term "malicious prosecution" was defined by the Court in the case of West Bengal State
Electricity Board v. Dilip Kumar Ray.1 “A malicious prosecution is a legal proceeding
brought by one person against another with an unlawful or inappropriate purpose and without
any reasonable and probable cause to support it”. A malicious prosecution case should be
brought within a year after the malicious suit being filed. A criminal process against an innocent
person without reasonable cause must be initiated before a malicious proceeding may be carried
out. The individual who files a malicious prosecution case must have incurred some sort of loss
or suffering, and he must show it in court before the action may be started.

ELEMENTS:

The plaintiff must show following elements in order to claim damages for malicious
prosecution.

1. PROSECUTION BY THE DEFENDANT:

The plaintiff must first establish that the prosecution
was initiated by the defendant himself in order to pursue a claim for damages against the
defendant. In one of the cases, Khagendra Nath v. Jacob Chandrathe,2 the court found
that just bringing the problem before the executive authority did not constitute prosecution,
and that, as a result, a claim for malicious prosecution could not be sustained simply by
demonstrating that the situation was brought to the attention of police officers. In the case

1
West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976.
2
Khagendra Nath v. Jacob Chandrathe, 1976 Assam L.R. 379.

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 of D.N. Bandyopadhyay v. Union of India3 it was held that an investigation by police
officers is not the same as a prosecution.
2. ABSENCE OF PROBABLE/REASONABLE CAUSE:
When initiating a malicious prosecution
lawsuit, it is also necessary to show that the defendant who filed the case did so without
reasonable and probable grounds. The question of whether there is any reasonable and
probable cause will be determined by the court based on the facts of the case. In the case
of Antarajami Sharma v. Padma Bewa, it was held that the plaintiff carries the burden
of proving the lack of a reasonable and probable cause in a case of any damage for
malicious prosecution.4
3. DEFENDED ACTED MALICIOUSLY:
In order to recover damages for malicious prosecution,
the plaintiff must show that the defendant prosecuted the plaintiff with malicious purpose
rather than with the only aim of carrying out the law. Malice isn't merely a sense of ill will
or a spirit of revenge directed at the plaintiff; it may also refer to any inappropriate motive
that pushes the prosecution to obtain an advantage over the defendant. It makes no
difference if the prosecutor was behaving deliberately from the start, but if he or she turns
malicious later on, a malicious prosecution action can still be pursued. In Bank of India
versus Lakshmi Das,5 the court defined malice and ruled that, in the absence of a probable
and reasonable cause, malice must be proven by the defendant himself in a court of law.
4. TERMINATION OF THE PROCEEDINGS IN FAVOUR OF PLAINTIFF:
The plaintiff must establish that the procedures
brought against him ended in his favour in order recover damages for malicious
prosecution. The case may be dismissed owing to technical issues, or he may be exonerated
on the merits of his innocence. This does not imply innocence, but rather the lack of
wrongdoing by the judicial system. While the court case is still pending, then no action can
be taken.
5. PLAINTIFF SUFFERED DAMAGES AS A RESULT OF PROSECUTION:
The plaintiff must show that he suffered
losses as a result of the prosecution. Even though the plaintiff won the case, damages must
be established, and there are three types of damages:

3
D.N. Bandyopadhyay v. Union of India, AIR 1976 Raj. 83.
4
Antarajami Sharma v. Padma Bewa, AIR 2007 Ori. 107.
5
Bank of India versus Lakshmi Das, (2000) 3 SCC 640.

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 • When a person is charged with a crime, he risks losing his life, limb, or liberty as
a result of the punishment.
• Damage to a person's reputation, such as being prosecuted for a crime that involves
a character insult.
• Damage to his property, such as when he is obliged to spend money on essential
charges in order to clear himself of the crime of which he is accused, such as legal
costs or lost business during the prosecution or proceedings.

REMEDIES:

Existing legislation and case law present three types of court-based remedies against malicious
prosecution, incarnation, and restitution.

1. PUBLIC LAW REMEDY:

(Monetary compensation obtained by writ judicial decisions)

The accused can then exercise writ jurisdiction under article 32 or 226 and seek
remedies from the writ courts, including compensation for the victim who suffered
bodily, mental, and social injury.
2. PRIVATE LAW REMEDY:
Under the vicarious liability theory of private law, a person
who has been wrongly prosecuted can sue the state for monetary damages. The
individual who is being wrongfully prosecuted might submit both cases at the same
time.
3. CRIMINAL LAW REMEDY:
Malicious prosecution cases of a criminal nature can be
presented to law enforcement and courts under section 211 of the IPC6. If the plaintiff
succeeds in establishing his case, the defendant may be subjected to penalties.

DEFENCES:

Whenever a defendant is accused of malicious prosecution, he has many defences at his

disposal. Sadly, these are among the shortcomings of the law regulating malicious prosecution.

1. An honest belief on the part of the defendant in the plaintiff's guilt.

2. The presence of a reasonable or plausible cause for the plaintiff's prosecution.

6
Indian Penal Code 1860, S 211.

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 3. There is should be a reasonable suspicion that the plaintiff committed the alleged
offence for which he is being charged.
4. When the prosecution is the result of the law enforcement officer's discretion or action.
5. Protection of the state/country’s security.
6. Statutory restriction, such as the Statute of Limitations, which gives you a certain
number of years to take legal proceedings before the claim expires.

CIVIL PROCEEDINGS:

Malicious prosecution is permitted in India under civil proceedings. The procedure is

straightforward, and if malicious prosecution is shown, the plaintiff's reputation will be cleared
of all charges made against him. Physical damages are awarded in the first proceeding, but
mental anguish and additional expenses spent during the malicious prosecution case are taken
into account. This is the ideal situation. The primary goal of a civil proceeding is to get
compensation for the losses sustained.7

CRIMINAL PROCEEDINGS:

An Indian Penal Code of section 211 deals with false charges made with the intent to injure

“Whoever, with intent to cause injury to any person, institutes or causes to be instituted any
criminal proceeding against that person, or falsely charges any person with having committed
an offence, knowing that there is no just or lawful ground for such proceeding or charge
against that person, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both; and if such criminal proceeding be
instituted on a false charge of an offence punishable with death, 1[imprisonment for life], or
imprisonment for seven years or upwards, shall be punishable with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine”8

This is basically a criminal law provision designed to deal with malicious prosecutions in which
the plaintiff is wrongly accused of significant and evil offences.

CASE STUDY:

7
Prateek Shanker Srivastava, ‘Malicious Prosecution under Law of Tort’ (legalserviceindia)
<https://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html > accessed 22
January 2022.
8
Indian Penal Code 1860, S 211.

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West Bengal State Electricity Board v. Dilip Kumar Ray9

In this case the Calcutta High Court upheld the trial court's decision to award the plaintiff 1
lakh rupees in monetary and mental damages, as well as 50,000 rupees for harassment and
50,000 rupees for loss of reputation.

Plaintiff was a Defendant's employee. An internal court hearing was held against plaintiff based
on allegations of wrongdoing and the commission of several offences, and a FIR was filed with
the police. Plaintiff's employment as a Superintending Engineer was fired. Plaintiff filed a writ
petition after waiting four months for the charge sheet to end departmental proceedings, which
was eventually dismissed. The plaintiff then filed a charge sheet comprising ten charges, each
of which was refused. He then asked to inspect particular papers, but was initially rejected.
Another writ petition was filed, and the High Court issued three directives: the investigation
must conduct a thorough inquiry of all documents, the investigation must provide the plaintiff
with a fair hearing in accordance with the law, and the investigation must be completed within
six months of the commencement. The plaintiff's claim of denial of opportunities was raised
again, and his response to the charge sheet was dismissed.

Another Writ petition was filed in an attempt to put an end to the proceedings. The High Court
then set a deadline for the board to conclude the investigation; failing to do so would imply
indifference on the board's part, and the suspending order would be overturned. Charges 2, 5,
and 10 were found to be proven, while charge 3 was deemed to be partially proven. The plaintiff
challenged the entire proceeding on the grounds that he was not fully heard and so denied the
chance to present his case, a breach of natural justice principles. The High Court ruled in favour
of this suit. The plaintiff was compensated for his lost earnings throughout the suspension time.

The plaintiff then filed a malicious prosecution complaint with the Assistant District Judge in
Alipur. The plaintiff claimed that the defendant had initiated false allegations against him and
improperly suspended him from duty with the objective of damaging his character and status
in the eyes of the public. The Hon'ble High Court of Calcutta has clearly said that it has not
only harmed his reputation but has also resulted in substantial civil and financial consequences
for him. The plaintiff claims that he has experienced severe mental anguish as a result of the
defendant's humiliation after completing a great and successful career in the military.

9
West Bengal (note 1).

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At various stages of the case, the Plaintiff had to hire renowned barristers and advocates, for
which the Plaintiff had to pay a large quantity of money with much difficulty. As a result, the
plaintiff seeks merely Rs.5,00,000/- in damages for defamation. The plaintiff was awarded
Rs.50,000 in damages for harassing and another Rs.50,000 in damages for loss of reputation.

The high court in this case given the definition of malicious prosecution that “A judicial
proceeding initiated by one person against another, for unlawful or improper purpose, and
without reasonable grounds to maintain."

Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil10

In this case, the plaintiff was a village sarpanch, whereas defendant number 1 worked as a
Gram Sewak for the Zila Parishad and defendant number 2 worked as a teacher in a Zila
Parishad school. The plaintiff had filed a number of complaints against the two, citing their
poor behaviour, misbehaviour, and failure to perform their duties, among other things. Both
planned against him in order to teach him a lesson and exact revenge, and defendant number 1
filed a false police report alleging that the plaintiff had assaulted him.

He was arrested when a criminal investigation began. He was later acquitted on the basis that
the accusation was made maliciously. The plaintiff filed a malicious prosecution lawsuit,
claiming that as a politician and sarpanch, he had lost his dignity and reputation, and that his
standing had been damaged. The plaintiff's allegations were upheld by the court, and the
defendants were ordered to pay him 12,500 in damages.

Girija Prasad v. Uma Shankar Pathak11

Uma Shankar Pathak was a practising lawyer in the Madhya Pradesh town of Panna. He started
an agitation in response to the society's food crisis. Girija Prasad, a sub inspector, was stationed
outside the collectorate to keep the mob under control. After firing a few bullets from his
handgun, he filed a police report. He mentioned Uma Shankar Pathak as the individual who
instigated the mob against him in the FIR. He accused the mob of assaulting him, and his
handgun misfired in the middle of the chaos. Uma Shankar Pathak was arrested but later found
not guilty. Uma Shankar Pathak sued four persons, including Girija Prasad, for malicious
prosecution after his acquittal. The M P High Court found Girija Prasad guilty of malicious
prosecution after concluding that the FIR he filed was fake.

10
Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil, 2005(2) BomCR491.
11
Girija Prasad v. Uma Shankar Pathak, A.I.R 1973 MP 79.

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KAMTA PRASAD V NATIONAL BUILDINGS CONSTRUCTIONS CORPORATION PVT LTD 199212

The Plaintiff was a Defendant's employee. A defendant official observed that some products
were missing while conducting inventory and inspecting the stock register. Following that, the
plaintiff was charged with dishonest theft of property under IPC Section 403. Due to a lack of
evidence, the charges were withdrawn. The plaintiff subsequently filed a claim against the
defendant for malicious prosecution. He was unable to show that he had been harassed by the
defendant or that he had suffered severe losses. The plaintiff was found to have reasonable and
probable grounds to be prosecuted. Because there was no evidence of malice, this prosecution
was also withdrawn.

MALICIOUS CIVIL PROCEEDINGS

An action will not lie for maliciously and without reasonable and probable cause instituting
an ordinary suit. The reason stated to be is that “such a case does not necessarily and naturally
involve damage to the party sued as mentioned in the case Darbhangi Thakur v. Mahabir
Prasad.13 A false civil action will be dismissed during the hearing. The defendant's reputation
will be cleared of any slurs, and he will be compensated for his legal fees due to his opponent's
cost award. In case Mohamed Amin v. Jogendra Kumar Banerjee it was held that the law
does not provide compensation for mental anguish or any expenditures spent other than those
placed on the losing party.14 In addition, section 35A of the Code of Civil Procedure permits
for compensation fees in the case of frivolous or fraudulent claims.15 Because the cost of
litigation is normally paid by the failed plaintiff in any civil case, this is regarded a substantial
deterrent element that may discourage fraudulent civil proceedings. However, in exceptional
cases when the cost of litigation does not fairly recompense the defendant, he may seek to
collect damages for the losses incurred as a result of the proceedings. Insolvency proceedings
against a businessman, winding up proceedings against a trading firm, or proceedings resulting
in the arrest or execution of the defendant's property or the attachment of his property are
examples of such proceedings.

The following are the essentials to prove malicious misuse of civil proceedings, according to
the case of Genu Ganapati v. Bhalchand Jivraj:16

12
Kamta prasad v national buildings constructions corporation pvt ltd 1992, A.I.R. 1992 Delhi 275.
13
Darbhangi Thakur v. Mahabir Prasad, A.I.R. 1917 Pat. 460.
14
Mohamed Amin v. Jogendra Kumar Banerjee, A.I.R 1947 PC 108.
15
Ratanlal & Dhirajlal, ‘Law of Torts’ (26th edn, 2013).
16
Genu Ganapati v. Bhalchand Jivraj, A.I.R. 1981 Bom. 170.

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 1. Malice must be proved.
2. The plaintiff must claim and establish that the defendant behaved without respect to the
reasonable and probable clause, and that all proceedings on him have either ended in
his favour or that the proceedings accused of has been overtaken or discharged.
3. The plaintiff must show that the civil proceedings have harmed or are likely to harm
his liberty or property, or that they have harmed or are likely to harm his reputation.

Malicious legal process and abuse of legal process are two further torts in the same category
that are discussed below.

MALICIOUS ABUSE OF PROCESS

Certain offences, similar to malicious prosecution, entitle the person been victimized to sue,
such as malicious abuse of the court's proceedings, malicious arrest, malicious search, and
malicious execution.

The legislation permits anybody to use its procedure to enforce their rights without incurring
any liability other than the need to pay the expenses of the proceedings if they are unsuccessful.
As a result, actions for intentional misuse of civil proceedings are uncommon. The Civil
Procedure Code's Section 35A17, which allows for compensating charges in the case of false or
frivolous claims or defences, is quite clear in this regard.18 The maximum amount of
compensation is now Rs 3000. Generally, an unsuccessful plaintiff in such a case has to bear
the cost of litigation, so this factor serves as a deterrent to prevent false civil claims.

A. NATURE:

Anyone who uses the court's process for a private purpose that isn't justified by the
writ's necessity or the court's order is subject to a claim for damages for abusing the
court's process.19It is improper to conduct the legal process intentionally and without
any reasonable and probable cause, and if someone is harmed in property or person,
there is that combination of injury and loss for which an action will be brought. This
tort varies from malicious prosecution in that the legal action taken against the plaintiff
is not a prosecution, such as when a process is issued for the plaintiff's arrest or
possession of his property as mentioned in the case Premji v. Govindji20. The House

17
Code of Criminal Procedural, S 35(a).
18
B.M. Gandhi, ‘Law of Torts’ (3rd edition, 2006).
19
Addison, C. G., Law of Torts (3rd edn, 1874) 257.
20
Premji v. Govindji, A.I.R. 1947 Sind 169.

14
 of Lords held that a suit for damages was maintainable when a warrant for arrest of the
plaintiff was obtained maliciously and without any reasonable and probable cause on
the basis of defence evidence that the plaintiff had evaded the summons which had been
issued by the court, and when, as a result, the plaintiff was arrested, kept in custody and
later released, the suit was maintainable held in Roy v. Prior.21

The elements for proving malicious legal process are the same as in malicious
prosecution, with the exception that harm to a person or property must be proven.
1. The defendant (or defendants) brought a case.
2. The suit was instituted with malice in mind.
3. There was no reasonable and probable cause for the civil actions.
4. The case was decided in the plaintiff's favour.
5. The plaintiff has suffered harm, or he may show that the procedures have disturbed
with his liberty or property, or that the proceedings have harmed or are likely to
harm his reputation.

A defendant has a quick remedy under Section 95 of the Code of Civil Procedure to
recover compensation if an arrest or attachment has been made before judgement or a
temporary restraining order has been issued.
1. If the plea for the arrest, attachment, or injunction was made on inadequate grounds,
or
2. If the plaintiff loses the case and there was no reasonable or probable basis for
bringing the case in the first place. The defendant should just file a petition with the
court, and the court, depending on its financial jurisdiction, can award
compensation of up to one thousand rupees.
B. MALICIOUS ARREST:
Malicious arrest is when someone puts the law in action with the intent of arresting
someone else without reasonable and probable grounds.22 An action for malicious arrest
is based on the fact that the party obtained an order or authority to make an arrest from
a Judge by knowingly imposing some false statement on the Judge, or by stating certain
facts as true within his knowledge .This action varies from a false imprisonment action

21
Roy v. Prior, (1969) 3 WLR 635 (HL).
22
Ibid.

15
 in that no judicial process is involved prior to the arrest, which is basically the
defendant's or a ministerial officer's conduct. It may be possible to recover damages
resulting from an arrest in accordance with the order of a competent court if the process
issued for an arrest was later superseded or discharged, and the arrest was procured
maliciously and without reasonable and probable cause on the defendant's part.
C. MALICIOUS SEARCH:

when a person maliciously procures a house search. a search warrant issued without
reasonable and probable cause and with malice has long been recognized as an
actionable wrong.
D. MALICIOUS PROCESS AGAINST PROPERTY:

When a person deliberately and without reasonable and probable cause obtains
execution or distress against another's property through civil actions, he is liable for
damages.
E. PROCURING ERRONEOUS DECISION OF COURT:

No action shall be taken against anyone who obtains an incorrect judgement from a
court of justice. Even if a decision or order of a court of Justice is incorrect, no action
will be taken against a person who issues judgment or otherwise acts in accordance
with it. A legal order, even if it is incorrect in law or fact, is adequate reason for any
action taken in response to it. The aggrieved party's remedy is to appeal rather than to
file a lawsuit for damages.23 However, if the proceeding or process that caused a
person's damage ended in his favour, that person can pursue a malicious prosecution or
malicious legal process provided the criteria for these actions are fulfilled.
F. DAMAGES:
The expenditures incurred by the plaintiff as a result of the arrest and in obtaining his
release must be considered when awarding damages for intentional arrest. Damages
should be in the form of a penalty as well as compensation if the defendant's action was
without reasonable cause and indicated a malicious purpose on his behalf.

ABUSE OF PROCESS

Apart from malicious prosecution, malicious legal process, there is a tort know as abuse of
process with limited authority. Abuse of process is a tort that occurs when an individual gets

23
Bachoo v. Velji Bhimsey & Co., (1923) 25 Bom LR 595.

16
an unfair legal advantage over his opponent by using a regular legal process or procedure in a
malicious and unjustified manner.24 It is an intentional tort that occurs when someone abuses a
judicial proceeding in a way that is not supported by the civil or criminal causes of action. It
occurs when someone manipulates the legal system to attain a goal that isn't necessarily related
to the actual legal action. It includes Litigation acts taken in bad faith with the intent of delaying
the delivery of justice. For example, serving legal documents on someone who hasn't received
them with the goal to intimidate, or initiating a lawsuit without a legitimate legal basis in order
to collect information, coerce payment via fear of legal entanglement, or gain an unfair or
unlawful advantage.25 Although this tort may sound similar to malicious prosecution, an abuse
of process claim can be brought against someone even if the underlying cause of action for the
lawsuit was valid. The term "abuse of process" refers to the irregular and inappropriate use of
a procedure, as contrary to the regular and lawful use of a process with a negative motive. It is
not regarded an abuse of the procedure if the user intends to use it for ill reasons yet does so
on a regular basis.

In Grainger v. Hill26 The defendant was held liable for procuring the plaintiff's arrest, allegedly
for non-payment of a debt, but in reality, to pressure him into illegally surrendering the vessel's
register, which prevented the vessel from going to sea. In this tort, the legal system is used in
its correct form to achieve an inappropriate goal for which it was not meant.

ELEMENTS:

The elements that a plaintiff must establish in order to win his or her case differ from state to
state, as they do with most torts. In an abuse of process case, a plaintiff must often establish
the following elements:

1. MISUSE OF A VALID PROCESS:

By using the process as a threat or a weapon, the improper objective of a [misuse of a
process] often takes the form of coercion to acquire a collateral advantage not lawfully
included in the process itself, such as the surrender of property or the payment of
money. In other words, there is a type of extortion. The defendant must have used the
process in an unlawful, twisted, or incorrect manner, which the procedure did not
warrant, intend, or permit.

24
Black's Law Dictionary, 25 (4th ed. 1951).
25
Stimmel & Roeser, abuse process basics and practicalities.
26
Grainger v. Hill, (1838) 4 Bing NC 212.

17
 2. ENTERTAINED ULTERIOR MOTIVE:
There must have been an ulterior motive or purpose behind the defendant's use of such
illegal, perverted, or improper use of process.
3. DAMAGE TO THE PLAINTIFF:
Only where there has been a harm to a person or property may a claim for abuse of
process be maintained. Indirect harm to a person's company or reputation is not
actionable in and of itself. The judgment has been held that in an action for abuse of
process, the plaintiff's property must be seized or the person be arrested.

DAMAGES:

A person bringing a claim for abuse of process must usually plead and establish that the
irregularity of the proceedings caused injury or damages. In certain situations, simple anguish
or harassing is not considered sufficient loss to justify the tort.

LIABILITY:

Persons who use the legal system with malice to achieve a personal goal unrelated to the
litigation's central issue are liable for the intentional tort of abuse of process. Anyone who
arranges for the unnecessary and improper start of a proceedings by a third party will be held
liable for abuse of process damages. If a non-litigant actively participates in a civil proceeding
and the result is an improper initiation of the proceeding, the non-litigant may be held liable
for damages for abuse of process.

REMEDIES:

CIVIL PROCEEDINGS:

The plaintiff is entitled to recover whatever real losses he has suffered as a result of the tort,
including any special or peculiar damages, if they are claimed.27 Special damages includes
Physical or emotional harm, expenditures, lost time, and harm to one's career, property, or
financial position. If there is malice involved in the abuse of process, exemplary or punitive
damages may be awarded. When property that is typically exempted from prosecution is taken
in order to break up a person's business, there is a valid basis for punitive damages.

CRIMINAL PROCEEDINGS

27
Tobi Goldoftas, ‘Abuse of Process’ (1964) 13(1) Cleveland state Law Review 163, 170.

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STAY OF PROCEEDINGS - The granting of a permanent stay is one remedy for an abuse of
process in criminal proceedings. 28This is a final order that puts an end to criminal proceedings.
It denotes a court's refusal to rule on a dispute brought before it by the prosecutor. The issuing
of a temporary stay till the abuse of procedure is corrected is a less severe remedy. This will
obviously only happen if the abuse of process can be addressed, such as by the payment of
fees, the calling of a witness, the disclosure of evidence, or some other action that allows the
proceedings to continue.

EXCLUSION OF EVIDENCE - Exclusion of evidence or the giving of specific jury instructions to

avoid the unfairness is another remedy for an abuse of process.

EXERCISE OF DECISION - If exercising a decision in a certain way results in an abuse of

process, that decision will be used in a different way to prevent the abuse of process.

FIR’S QUASHING - The presence of a mala fide intent to collect amounts that a client is unable
to recover through the civil process is an abuse of the legal process. As a result, in the case of
State of Haryana v. Bhajan Lal,29 the Supreme Court held that where a criminal proceeding
is clearly conducted with mala fide and/or where the proceeding is maliciously instituted with
the intent to unleash revenge on the accused and to hate him due to a private and personal
grudge, the proceeding must be quashed and set aside.

CASE STUDY:

GRAINGER V. HILL30

Plaintiff borrowed Defendant vessel on the condition that he repay it within a particular time
frame. Plaintiff was forced to give up ownership to the vessel, which he couldn't function
without, and Defendant threatened him with prison if he didn't comply or pay the mortgage in
full. Defendant had arrested Plaintiff when he refused, and Plaintiff filed action.

Plaintiff did have a cause of action, according to the Court of Common Pleas (England), and
so nonsuit was refused. In addition, the court ruled that this was an action for abusing the legal
system by using it to extort money.

28
Stephen Lawrence, ‘Abuse of Judicial process in Criminal Proceedings’(criminalcpcd.net.au,2015)
<https://criminalcpd.net.au/wp-content/uploads/2017/01/abuse-of-judicial-process-criminal-cle-0117.pdf>
accessed 22 January 2022.
29
State of Haryana v. Bhajan Lal, 1992 AIR 604.
30
Grainger (note 25).

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“The England court of common pleas held that it is unlawful to use the legal system to extort
a money from another party or apply coercion.”

CONCLUSION:

Every individual has the right to start the legal proceedings by filing a complaint in order to
safeguard his or her rights or to protect the public interest. However, such a right should not
violate the rights of others. Such rights should not be abused by bringing improper legal
proceedings. The other person would be harassed with unjustified litigation, and the judicial
system would be abused. Due to the numerous negative effects of abusive court proceedings,
they have a significant negative influence on the justice delivery system as well as on the
individuals or victims of such a terrible and humiliating crime. The intention of this paper was
to conceptualise the goals that enable the imposing of tortious liability for a legal procedural
abuse. These recent judgements lay the foundation for the legal system to develop a defence
mechanism to prevent and compensate for abuses of its rules and processes. This is critical for
the people's trust in our justice system. After all, it's hard to have trust in a system that claims
to protect society against and pay victims of abuse when that same system is nearly unable to
defend itself from abuse and compensate those who suffer harm as a result of it. The
disadvantage of such a system is that it is vulnerable to misuse. Even if the underlying matter
allegedly justifying the lawsuit is not regarded possible by the person initiating it, the stress
and expense of litigation can inflict substantial injury in and of itself, and may be used to hurt
another. The lawsuit itself becomes a weapon used to attack someone else. As a result, the state
established measures to penalise misbehaving members who have malicious purpose in
bringing a complaint against another, resulting in legal procedures being abused.

REFERENCES:

1. Ratanlal and Dhirajlal, Law of Torts (26th edition, 2013).

2. B.M. Gandhi, Law of Torts (3rd edition, 2006).
3. R.K. Bangia, Law of Torts (25th edition, 2020).
4. Prateek Shanker Srivastava, ‘Malicious Prosecution under Law of Tort’
(legalserviceindia).
5. Tobi Goldoftas, ‘Abuse of Process’ (1964).
6. Addison, C. G., Law of Torts (3rd edn, 1874)
7. Stephen Lawrence, ‘Abuse of Judicial process in Criminal Proceedings’
(criminalcpcd.net.au,2015.

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8. Black's Law Dictionary, 25 (4th ed. 1951).
9. West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976.
10. Khagendra Nath v. Jacob Chandrathe, 1976 Assam L.R. 379.
11. D.N. Bandyopadhyay v. Union of India, AIR 1976 Raj. 83.
12. Antarajami Sharma v. Padma Bewa, AIR 2007 Ori. 107.
13. Bank of India versus Lakshmi Das, (2000) 3 SCC 640.
14. Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil, 2005(2)
BomCR491.
15. Darbhangi Thakur v. Mahabir Prasad, A.I.R. 1917 Pat. 460.
16. Mohamed Amin v. Jogendra Kumar Banerjee, A.I.R 1947 PC 108.
17. Genu Ganapati v. Bhalchand Jivraj, A.I.R. 1981 Bom. 170.
18. Premji v. Govindji, A.I.R. 1947 Sind 169.
19. Roy v. Prior, (1969) 3 WLR 635 (HL).
20. Bachoo v. Velji Bhimsey & Co., (1923) 25 Bom LR 595.
21. Grainger v. Hill, (1838) 4 Bing NC 212.
22. State of Haryana v. Bhajan Lal, 1992 AIR 604.
23. Girija Prasad v. Uma Shankar Patha, AIR 1973 MP 79.

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