JULY 22, 2020

By Vijay Kumar

MALICE can be divided into malice in law and fact. When someone is discharging professional duty, the question of malice in law might arise very often as against malice in fact. However, as against bias, which can be tested on its likelihood or reasonable suspicion, a malice would require some concrete evidence.

Legal malice is an action or inaction without a lawful excuse, which is done without a reasonable cause with the willful intention. What is legal malice has been dealt with by the Apex Court in  KALABHARATI ADVERTISING VS. HEMANTG VIMALNATH NARICHANIA AND OTHERS ((2010) 9 Supreme Court Cases 437).

"Legal Malice:

25. The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941; Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976).

26. Passing an order for an unauthorized purpose constitutes malice in law.

- From 2018-TIOL-1340-HC-MAD-PMLA - Nalini Chidambaram Vs Directorate of Enforcement

In 2014-TIOL-1723-HC-MUM-IT - Sitaram Karamchand Dange Vs Union of India, the Bombay High Court observed,

It is well settled that a legal malice means something done without lawful exercise. It is an act done wrongly and willfully without reasonable or probable cause and without due regard to the rights of others. 

In  State of Bihar vs. P.P.Sharma {1992 SCC (Cri) 192}, the Supreme Court pointed out that it could be inferred from the doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power.

In Plus Max Duty Free Pvt Ltd Vs Union of India - 2019-TIOL-60-HC-KERALA-CUS, the Kerala High Court held,

So, every act tainted with bias need not transform into an act of bad faith. Bad faith is malice in fact, but bias can be malice in law. Shorn of motives, an official may doggedly pursue a cause with predetermination that crime should have zero tolerance. But most he fails to see the line between what is perceptual and what is factual. That is the problem. For him, an allegation is an affirmation.

Malice in Law and GST

In 2020-TIOL-115-HC-AHM-GST - Enprocon Enterprise Ltd Vs Assistant Commissioner of State Tax,

The office premises of the writ applicant situated at Ahmedabad and Baroda were raided by the GST Authorities, in exercise of their powers, under Section 67 of the CGST  Act, 2017. Search and seizure was undertaken by the Authorities sometime in the months of March and April, 2019. Proceedings under Section 73 of the GGST Act, 2017, have been initiated against the writ applicant.

Later, an order of provisional attachment of the immovable property situated at Ahmedabad, came to be passed by the Assistant Commissioner of State Tax in exercise of powers, under Section 83 of the Act, 2017.

The High Court observed,

In the absence of any cogent or credible material, if the subjective satisfaction is arrived at by the authority concerned for the purpose of passing an order of provisional attachment under Section 83 of the Act, then such action amounts to malice in law. Malice in its legal sense means such malice as may be assumed from the doing of a wrongful act intentionally but also without just cause or excuse or for want of reasonable or probably cause. Any use of discretionary power exercised for an unauthorized purpose amounts to malice in law. It is immaterial whether the authority acted in good faith or bad faith.

Jest Before GST

In Kalyani Motors Pvt Ltd Vs Deputy Commissioner of Commercial Taxes (Audit) - 2018-TIOL-2037-HC-KAR-CT, the Karnataka High Court observed,

After hearing the learned counsels, this Court is surprised and is pained by the manner in which the authority has passed the impugned reassessment order in the second round of assessment for the period 01.04.0211 to March 2012 just ignoring the applicable Notification and throwing it to winds. The said order is therefore nothing less than suffering from malice-in-facts as well as malice-in-law. Therefore, the said responsible officer deserves to pay the exemplary costs for passing such whimsical order and the writ petition deserves to be allowed.

Accordingly, the writ petition is allowed and the impugned order Annexure-A dated 28.10.2016 passed by the 1st Respondent is hereby quashed and set aside. The 1st Respondent-Assessing Authority Ms.K.C.Sujatha, Deputy Commissioner of Commercial Taxes (Audit) - 2.4, Bengaluru, is directed to deposit the costs quantified at Rs.50,000/- from her personal resources with the Registrar General of this Court within a period of one month from today, failing which, the same may be deducted from her salary by the Commissioner, Commercial Tax Department and the same to be paid to the Registrar General of this Court. The amount upon deposit shall be remitted to the 'Prime Minister's Relief Fund', Delhi, for meeting the costs of relief to sufferers of natural disasters.

The aggrieved Deputy Commissioner took the matter in appeal to the Supreme Court and the Apex Court observed,

We find from the record that the learned Single Judge had no reasonable justification to hold that the petitioner had passed a whimsical order and that it suffered from malice in fact and in law. These observations were unnecessary for the adjudication of the merits of the dispute raised by the assessee. The conduct of the petitioner was not in question. Even assuming that an order passed by the assessing officer was erroneous, there was no reason for the High Court to make the observations, which we have quoted earlier, and direct the imposition of costs personally against the petitioner.

We therefore direct that the observations of the Single Judge in paragraph 7 of the order dated 24 September 2018 as against the petitioner shall stand expunged. Similarly, the direction in paragraph 8 of the order for recovery of costs from the personal resources of the petitioner shall stand set aside. While doing so, we clarify, at the cost of repetition, that the order of the learned Single Judge quashing the reassessment is not the subject matter of the present proceedings and nothing contained in this order shall amount to an expression of opinion on the correctness of that direction.

Even IRS Officers victims

In 2009-TIOL-02-SC-SERVICE - Somesh Tiwari Vs Union of India, the Supreme Court observed,

Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.

The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. 

The order, therefore, not only suffers from total non-application of mind on the part of authorities of respondent No.1, but also suffers from malice in law.

With malice towards none

In great legal contests, each party claims to act in accordance with Law. Both  may  be, and one  must  be wrong. Law cannot be  for, and  against  the same thing at the same time. At least, every officer should ensure that his every action does not amount to malice in fact and/or malice in law.

With malice towards none, with justice for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in.

Until next week