malice in law.

In the case of Sama Aruna v. State of Telangana, (2018) 12 SCC 150 Hon’ble Supreme Court it is ruled as under;

“24. The extent of staleness of grounds in this case compel us to examine the aspect of malice in law. It is not necessary to say that there was an actual malicious intent in making a wrong detention order.

In S.R. Venkataraman v. Union of India [S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] , this Court cited Shearer v. Shields [Shearer v. Shields, 1914 AC 808 (HL)] , where Viscount Haldane observed as follows : (S.R. Venkataraman case [S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] , SCC p. 494, para 5)

“5. … ‘A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.’ (Shearer case [Shearer v. Shields, 1914 AC 808 (HL)] , AC p. 813)” 35 25.

This Court then went on to observe in S.R. Venkataraman [S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] as follows : (SCC pp. 494- 95, paras 6-7)

“6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard, C.J. in Pilling v. Abergele Urban District Council [Pilling v. Abergele Urban District Council, (1950) 1 KB 636 (DC)] where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.

7. The principle which is applicable in such cases has thus been stated by Lord Esher, M.R. in Queen on the Prosecution of Richard Westbrook v. Vestry of St. Pancras [Queen on the Prosecution of Richard Westbrook v. Vestry of St. Pancras, (1890) LR 24 QBD 371 (CA)] : (QBD pp. 375-76)

“… If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the 36 guidance of their discretion, then in the eye of the law they have not exercised their discretion.’ This view has been followed in Sadler v. Sheffield Corpn. [Sadler v. Sheffield Corpn., (1924) 1 Ch 483] ”