Mohamudul Hasan vs Mohammad Shibli Khan

Young, J.—This is second appeal from the Second Additional Subordinate Judge of Azamgarh. The plaintiff brought a suit for malicious prosecution and the lower appellate Court has given a decree to the plaintiff for Rs. 200 damages. The defendant appeals. The sole point taken by the defendant is that the lower appellate Court did not decide an issue on the question of malice. It is quite clear, as has been frequently pointed out, that proof of malice is essential in an action for malicious prosecution and it is equally clear that there must be a finding of malice. The learned Judge in the Court below does not say in words that there was malice on the part of the defendant. What he says is this:

When all these facts ate taken into consideration, it becomes impossible to believe that the plaintiff could have been present or was present when the riot is said to have taken place.... The plaintiff was mentioned in the report as a safeguard and because he was a sympathiser of Chauthi and not because he was present on the scene.

If ever, in my opinion, there was a clear finding of malice, it is in these words. Malice, as has been laid down frequently in many cases, is any indirect or improper motive. Where, as in this case, a man is deliberately and falsely implicated in a charge, the improper motive is obvious. Such a finding is in fact a finding of malice in law. There is no magic in the word "malice" and it is quite unnecessary for a Court to use the word malice" so long as the facts found by it amount to malice in law. The appeal is dismissed with costs. Permission to appeal is refused.