False imprisonment & malicious Prosecution | Study notes Law of Torts

False imprisonment

False imprisonment consists in total restraint for some period, however short, upon the

liberty of another without sufficient lawful justification. The restraint may be either physical

or by mere show of authority. this tort is covered by the definition of criminal assault under

English law but the Indian Penal Code calls it wrongful confinement.

Two elements which constitute this tort are that:

(1) the imprisonment is without lawful justification and

(2) it is caused by the defendant or his servant during the course of employment.

It will not constitute false imprisonment where a person enters a place under some contract

or a license, and is prevented from going out as per terms and conditions of contract; or

when facilities for going out are not provided as they have not been contemplated by the

parties concerned. Hence if a guardian is not allowed to take his ward out of the school for

some days because he has not paid the dues; or when a minor is not allowed the facilities of

lift before the time is over, it will not constitute false imprisonment.

Imprisonment may be caused by the defendant or his servant, but it cannot be said that

judicial officers like magistrate, causing arrests, are the agents of the complainant and are

liable for false imprisonment. But the case is otherwise with a police officer who act as a

ministerial agent of the complainant and causes unlawful arrest. He is liable for false

imprisonment, if he does not act under the authority of law. Lawful arrest, under the Code

of Criminal Procedure of India, would not constitute the tort of false imprisonment.

The tort of false imprisonment is, in essence, only an infringement of a person's right to

freedom of movement granted by law, which is a prerequisite of all civilized living. This

freedom is inherent in article 21 of the Indian Constitution when it declares that “No person

shall be deprived of his life or personal liberty except according to procedure established by

law”.

By article 22 it has been made obligatory that a person under arrest should know the

grounds of his arrest as soon as possible and should be produced before the nearest

magistrate within 24 hours and should not be kept under custody any longer without an

order of remand from the magistrate. The frequent instances of police atrocities in India

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False imprisonment False imprisonment consists in total restraint for some period, however short, upon the liberty of another without sufficient lawful justification. The restraint may be either physical or by mere show of authority. this tort is covered by the definition of criminal assault under English law but the Indian Penal Code calls it wrongful confinement. Two elements which constitute this tort are that: (1) the imprisonment is without lawful justification and (2) it is caused by the defendant or his servant during the course of employment. It will not constitute false imprisonment where a person enters a place under some contract or a license, and is prevented from going out as per terms and conditions of contract; or when facilities for going out are not provided as they have not been contemplated by the parties concerned. Hence if a guardian is not allowed to take his ward out of the school for some days because he has not paid the dues; or when a minor is not allowed the facilities of lift before the time is over, it will not constitute false imprisonment. Imprisonment may be caused by the defendant or his servant, but it cannot be said that judicial officers like magistrate, causing arrests, are the agents of the complainant and are liable for false imprisonment. But the case is otherwise with a police officer who act as a ministerial agent of the complainant and causes unlawful arrest. He is liable for false imprisonment, if he does not act under the authority of law. Lawful arrest, under the Code of Criminal Procedure of India, would not constitute the tort of false imprisonment. The tort of false imprisonment is, in essence, only an infringement of a person's right to freedom of movement granted by law, which is a prerequisite of all civilized living. This freedom is inherent in article 21 of the Indian Constitution when it declares that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. By article 22 it has been made obligatory that a person under arrest should know the grounds of his arrest as soon as possible and should be produced before the nearest magistrate within 24 hours and should not be kept under custody any longer without an order of remand from the magistrate. The frequent instances of police atrocities in India

prompted the apex court to issue certain guidelines in D. K. Basu v. State of West Bengal (1997) 6 SCC 642 ; to be followed in all cases of arrest. The court held that failure to comply with the instructions would entail not only departmental action but also punishment for contempt of court. The Indian Constitution provides for writs like habeas corpus, which may be resorted to by the petitioner. An Indian judge who orders arrest or imprisonment without having jurisdiction to do so is protected by the Judicial Officers Act of 1850 provided he believes, in good faith, that he has jurisdiction to do so. The Act also gives protection to ministerial officers of the court, who execute lawful warrants and orders of the court. But if the warrant is unlawful or irregular at the outset no such protection is given. Statutory protection, usually in a lesser degree, is given to executive officers. The Preventive Detention Act of 1950 gives immunity to officers if the arrest or detention is affected in good faith and in pursuance of the Act. But if the statute is declared ultra vires the executive officer may be sued for false imprisonment. In India, according to section 43 of the Code of Criminal Procedure, 1973 a private person may also arrest any person who, in his view, commits any non-bailable and cognizable offence or when the offender is a proclaimed offender. But if the private person fails to follow the after-arrest procedure as prescribed in section 43 he can be prosecuted for the offence of wrongful confinement under section 342 of IPC. But in England a private person can arrest not only when someone is committing felony or a breach of peace, but also when such person has reasonable suspicion of a felony, provided that felony has been committed. A private person can be held liable in such a case when he cannot show that felony had actually been committed or when it cannot be shown that he had reasonable grounds to suspect that the person so arrested had committed that felony. The notion of false imprisonment is a notion of restraint, in "some limits", defined by will or power exterior to our own. In Maharani Gurucharan Kaur Nabha v. Province of Madras AIR 1942 Mad. 539 ; where Maharani of Nabha was not allowed to leave for Madras by train, it was held that the offences of wrongful restraint and confinement are offences against human body and cannot be said to have been committed if a person is not himself restrained or confined but the liberty of going in conveyance in which he wishes to go or of taking the direction which he wishes to proceed is denied to him. In Kader v. Alagar Swami AIR 1965 Mad. 438; it was held that a sub-inspector of police who exceeded and abused his

and after making the charge; taking notice of the persons who took active part in the prosecution and did pairvi by producing witnesses and doing all things necessary for the success for the prosecution, even going to the extent of influencing the police after lodging the complaint etc. If the defendant does nothing more than giving information to the police of theft at his shop, laying suspicion upon the plaintiff, and does not take active part in the proceedings, he cannot be called the prosecutor. As regards the question of suffering damage, the courts have to see whether proceedings have reached a stage at which damage to plaintiff begins to result. Some action, by judicial authority, must take place either by way of issuing summons or issuing warrant of arrest. If the plaintiff is produced in the court twice and is being taken to jail publicly it has been held that the case has reached the stage where action for malicious prosecution would lie. If the complaint is not followed by any issue of process or notice, it does not amount to malicious prosecution. Further, if the person complained against voluntarily incurs the risk of attending the inquiry, arising out of the complaint, the complainant is not liable for consequences. As regards the meaning of 'malice' in India, it has been construed as an improper or indirect motive, i.e., some motive other than a desire to vindicate public justice or private right. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage. Mere indignation or anger does not negative the existence of the proper purpose because securing prosecution of offenders is a rightful purpose. If charge is false to the knowledge of the complainant, he will be liable. Recently in Bank of India v. Lekshmi Das, (2000) 3 SCC 640. the Court reiterated the Indian position that in malice absence of a probable and reasonable cause must be proved.

False imprisonment & malicious Prosecution, Study notes of Law of Torts

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