TORT 144 Malicious Prosecution and Abuse of Process — Law of Torts Notes for Judiciary

Malicious Prosecution and Abuse of Process: Setting the Law in Motion and Misusing It Once Set

The Supreme Court has stated the distinction in a single sentence. Malicious prosecution consists in maliciously causing process to be issued; abuse of process is the employment of legal process for some purpose other than that which the law intended it to effect. The first is about the institution of a proceeding and looks backwards to whether there was any cause for it; the second is about the use made of a proceeding and looks at the collateral object being pursued. It follows that abuse of process does not require the proceeding to have been groundless, does not require it to have ended, and does not require it to have ended in the plaintiff's favour, which makes it in several respects an easier action than the one it is confused with.

1. The Comparison

	Malicious prosecution	Abuse of process
The gist	Maliciously causing process to be issued	Employing legal process for a purpose other than that which the law intended
What is attacked	The institution of the proceeding	The use made of it once instituted
Was the proceeding groundless	Yes. Absence of reasonable and probable cause is essential	Not required. The proceeding may be perfectly well founded
Must the proceeding have ended	Yes	No
Must it have ended in the plaintiff's favour	Yes	No
Malice	An essential ingredient	Replaced by the collateral purpose, which is what must be shown
What must be proved instead	Absence of reasonable and probable cause, and malice	An ulterior purpose, and an act in the use of the process not proper in the regular prosecution of the proceeding
Damage	Must be proved	Must be proved
Typical instance	A false criminal complaint made out of spite, ending in acquittal	An arrest or attachment used to extort money, property or a concession unconnected with the claim

2. The Governing Statement

📖 West Bengal State Electricity Board v. Dilip Kumar Ray, decided 24 November 2006

Facts An employee of the Board was subjected to proceedings which he alleged were instituted and pursued to harass him. The question of the ingredients of malicious prosecution, and its relationship with abuse of process, arose for consideration.

Held The Court set out the ingredients of malicious prosecution and distinguished it from abuse of process.

Ratio The distinction between an action for malicious prosecution and an action for abuse of process is 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. On malice, the Court held that it is not merely the doing of a wrongful act intentionally, but that it must be established that the defendant was actuated by spite or ill will, or any indirect or improper motive. On reasonable and probable cause, it must be such as would operate on the mind of a discreet and reasonable man, and the onus rests on the plaintiff to prove both the absence of such cause and the malice.

3. Abuse of Process in Detail

Two elements must be established: an ulterior or collateral purpose in using the process, and an act in the use of the process which is not proper in the regular prosecution of the proceeding.
The second element matters. A bad motive alone is not enough; the defendant must have done something with the process, some overt act of coercion, beyond merely carrying the proceeding forward.
The collateral purpose is one the process was not designed to achieve. Using an attachment to compel the surrender of an unrelated asset, using an arrest to extract a signature, using a winding up petition to collect a disputed debt, using criminal proceedings to force a settlement of a civil dispute.
Grainger v. Hill, (1838) 4 Bing NC 212 is the foundation. The defendants, mortgagees of a ship, caused the plaintiff to be arrested on process for a sum not yet due, not in order to recover the money but to compel him to give up the ship's register, without which he could not sail and so could not earn. The action lay, although the proceeding had not terminated and although there was no want of reasonable and probable cause for the debt itself. The wrong was the use of the process for an object outside its scope.
The absence of the termination requirement is the practical difference. A plaintiff in abuse of process may sue at once, while the proceeding is still pending, which a plaintiff in malicious prosecution cannot.

4. Why the Requirements Differ

Malicious prosecution requires termination in the plaintiff's favour for two reasons: because a court should not be asked to decide, collaterally, that a pending prosecution is groundless, and because a convicted accused cannot say there was no cause for prosecuting him.
Abuse of process does not require it, because the complaint is not that the proceeding was baseless. The defendant may be entirely entitled to bring it, and may succeed in it, and still be liable for the improper use he made of it along the way.
Malicious prosecution requires the absence of reasonable and probable cause because the wrong lies in setting the law in motion without warrant.
Abuse of process does not, because the wrong lies elsewhere, in the object pursued rather than the merits of the claim.
Malicious prosecution requires malice, being an improper motive for instituting; abuse of process requires a collateral purpose in using, which is a different mental element differently directed.

5. Where Each Applies

The facts	The claim
A false criminal complaint made out of spite, ending in acquittal	Malicious prosecution. The institution was without cause
A genuine debt claim, but the attachment is used to force the surrender of an unrelated business	Abuse of process. The claim was sound; the use was not
Criminal proceedings launched to force settlement of a civil dispute	Both may lie: malicious prosecution if there was no cause, abuse of process for the coercive use
A winding up petition used to collect a bona fide disputed debt	Abuse of process, and the petition is liable to be dismissed on that ground
Repeated and vexatious litigation on the same cause	Abuse of process, and the court's inherent power to strike out
A complaint honestly made which the police take up and which then fails	Neither. The complainant had reasonable and probable cause and no collateral purpose

6. The Related Remedies

The inherent power of the court to prevent abuse of its own process is separate from the tort and is exercised in the proceeding itself, by striking out, staying or dismissing.
Section 250 of the Code of Criminal Procedure, 1973, now carried forward in the Bharatiya Nagarik Suraksha Sanhita, 2023, allows a Magistrate to order compensation to an accused where the accusation was made without reasonable cause, which is a summary remedy far quicker than a suit.
The quashing jurisdiction of the High Court is the ordinary route where a criminal proceeding is being used to pursue a civil dispute, and it is invoked far more often than either tort.
Costs are the everyday sanction, and a party who has abused the process will ordinarily be made to bear them on a higher scale.
The torts themselves are rarely pleaded in India, for the reasons of proof examined in TORT 066 and TORT 143, and the practitioner's real remedies in this area are the summary ones.

⚠ Why abuse of process is the more useful action and the less used one

On paper abuse of process is the easier of the two by some distance. The plaintiff need not wait for the proceeding to end, need not show that it ended in his favour, and need not prove the absence of reasonable and probable cause, which is the requirement that defeats most claims in malicious prosecution. He need only show an ulterior purpose and an overt act of coercion in the use of the process. Yet the action is almost never brought in India, and the reason is not doctrinal but practical. A person being squeezed by a coercive proceeding wants the proceeding stopped, not damages years later, and the law gives him faster instruments: an application to quash, an application to strike out, a plea to the court's inherent jurisdiction, an order for compensation under the provision dealing with accusations made without reasonable cause, and an order for costs. All of these operate inside the very proceeding complained of, and all of them arrive in months rather than years. The tort therefore matters chiefly as a way of understanding what those summary remedies are for, and as the residual claim of a plaintiff who has already suffered the loss, the business closed, the asset surrendered, the settlement signed, and whose only remaining question is who pays for it.

7. The Position Stated Shortly

1. Malicious prosecution consists in maliciously causing process to be issued; abuse of process is the employment of legal process for a purpose the law did not intend.

2. The first attacks the institution of a proceeding; the second attacks the use made of it.

3. Abuse of process does not require the proceeding to have been groundless, to have ended, or to have ended in the plaintiff's favour.

4. It requires an ulterior or collateral purpose, and an overt act in the use of the process not proper in its regular prosecution.

5. Grainger v. Hill is the foundation: an arrest on process used to compel surrender of a ship's register was actionable though the proceeding had not ended.

6. West Bengal State Electricity Board v. Dilip Kumar Ray states the distinction and the ingredients of malicious prosecution.

7. Malice requires spite, ill will or an indirect or improper motive, and is not established merely by an intentional wrongful act.

8. Reasonable and probable cause is such as would operate on the mind of a discreet and reasonable man, and the onus is on the plaintiff.

9. Termination in the plaintiff's favour is required in malicious prosecution because a court will not collaterally declare a pending prosecution groundless.

10. In practice the summary remedies, quashing, striking out, compensation for a baseless accusation, and costs, are used far more often than either tort.