Law of torts false imprisonment and malicious prosecution

1. Law of Torts and Consumer
Protection Act
False Imprisonment & Malicious Prosecution

2. False Imprisonment
• False imprisonment means total restraint of the liberty of a
person for however short a time, without lawful justification.
• Such a restraint may either be physical or by a mere show of
authority.
• Restraint on the liberty of a person is also an offence.
• It may be either wrongful restraint as defined in Section
339 of the Indian Penal Code or wrongful confinement as
defined in Section 340 of the Indian Penal code.

3. Essentials of False imprisonment
• The plaintiff must prove the following, in an action for false
imprisonment:
• a. Complete deprivation of liberty
• b. Knowledge of restraint
• c. The detention must be unlawful

4. a. Complete deprivation of liberty
• The plaintiff should not have any reasonable means of leaving
the place where he is.
• In other words, if one direction by one path has been closed for
him, but another is open there is no false imprisonment.

5. • Bird v. Jones, (1845) 7 QB 742
• A portion of bridge, generally used as a footway, was
appropriated for seats to witness a boat race. The plaintiff
insisted upon passing along the portion so appropriated, and
attempted to climb over the enclosure. The policemen were
then deputed by the defendant to prevent him passing onwards
in the direction in which he wished to go. The plaintiff was
asked to go back into the carriage way and proceed to the other
side of the bridge if he pleased. He refused to do so and
remained where he was obstructed about half an hour.
• It was held that there was no false imprisonment.

6. b. Knowledge of restraint
• Earlier, for the tort of false imprisonment, it was not necessary
that the plaintiff should know that he has been detained.
• Nowadays it is a necessary ingredient.

7. • Meering v. Graham White Aviation Company Ltd. (1919)
122 LT 44
• The plaintiff, suspected of theft, was asked by two aviation
officers to accompany them to the defendant’s company office,
where he was kept under guard.
• The defendant’s company was held liable for false
imprisonment.

8. c. The detention must be unlawful
• It must not be made in pursuance of powers vested in the
defendant by law.
• Garikipati v. Araza Biksham, AIR 1919 AP 31
• The defendants lodged a complaint with the police that the
plaintiff had set fire to their property. Plaintiff was arrested by
the police but later on discharged because he made the
complaint without any justification and it resulted in the arrest
of the plaintiff.

9. • d. No action for false imprisonment lies for wrongfully obtaining
an order or judgment for false imprisonment from a court of
justice, though erroneous, irregular and without justification.

10. • Gouri Prasad v. Chartered Bank, (1925) 52 Cal. 615
• The plaintiff, being an employee of the defendant bank, was
arrested by a police officer upon a written complaint of the
defendant bank, but was acquitted at the Sessions trial. The
Court held that the issue as to arresting or causing the arrest of
the plaintiff and that the defendant had reasonable and
probable cause for so doing, was immaterial.
• As the defendant caused the arrest of the plaintiff, the latter
was held entitled to recover damages for false imprisonment
from the defendant.

11. • Sadik Hossain Khan v. Taffazal Khan, (1939) 43 CWN 1080
• The defendant, out of malice, got the plaintiff arrested by the
police on false allegations. The arrest of the plaintiff was held to
amount to false imprisonment by the defendant for which he
was liable in damages.

12. • f. where a person has entered upon another’s premises or
tenement under a contract or licence he cannot complain of
being in false imprisonment, merely because he is not allowed
to go out in a manner inconsistent with the term on which he
has entered, or is refused special facility at a time not
contemplated between the parties.

13. • Bahner v. Marvest Hotel, (1970) 12 DLR 646
• A hotelier detained a guest who disputed a bill. He gave his
name and address still he was kept detained. It was held to be
false imprisonment.

14. Defences
• a. Self Defence
• b. Preventing breach of peace or making lawful arrest
• c. Scope from lawful custody
• d. Assisting officers of law
• e. confinement of lunatics
• f. Parental or other authority
• g. consent

15. • h. Public authority
• 1. Judical authority: When a person is arrested or imprisoned by
judicial authority, no action for trespass to the person will lie
against the judge who gives the authority or against persons
executing his orders, or against the person who set the law in
motion.
• 2. The authority incident to the apprehension of criminals,
suspects and dangerous persons like lunatics.
• 3. Authority in times of war and rebellion.
• 4. Expulsion of undesirable aliens and surrender for foreign
criminals.
• 5. Powers of imprisonment under Emergency legislation.

16. Malicious Prosecution
• Malicious prosecution means the institution, against an innocent
person, of unsuccessful criminal proceedings without reasonable
and probable cause and in a malicious spirit and not in
furtherance of justice and causing damage to the plaintiff in
person, pocket or reputation.

17. Essentials
• 1. Prosecution by the defendant
• 2. Termination of proceedings in plaintiff’s favour
• 3. Prosecution should have been started without any reasonable
and probable cause
• 4. Prosecution must have been initiated with a malicious
intention
• 5. Plaintiff must suffer damage.

18. 1. Prosecution by the defendant
• D.N. Bandopadhyaya v. Union of India, AIR 1976 Raj 83
• Prosecution means the law should be set in motion by making a
complaint before an authority exercising judicial powers.
• Kapoor Chand v. Jagdish Chand, AIR 1974 P & H 215
• The Punjab High Court held that the proceedings before Punjab
Ayurvedic and Unani Medical Council in prosecution and a suit
for malicious prosecution can be lodged for such proceedings.

19. • Hazoor Singh v. Ganga Singh, AIR 1973 Raj 82
• The Rajasthan High Court considered a person as a prosecutor
in the following circumstances:
• a. The defendant’s information was false in his own knowledge;
• b. The defendant brought false evidence;
• c. The defendant tried to influence police for involving innocent
person;
• d. The police was influence to start prosecution.

20. 2. Termination of proceedings in plaintiff’s
favour
• No action for malicious prosecution lies until the prosecution has
terminated in favour of the person complaining of it.
• State of Bihar v. R.P. Baidya, AIR 1980 Pat 267
• Where the High Court orders quashing of the criminal case at
the cognizing stage being frivolous in nature, it puts an end to
the criminal proceedings launched against the plaintiff.

21. • Issardas v. Acissudomat, AIR 1940 Ker 230
• Where proceedings were withdrawn by the complainant as a
result of settlement with one of the several persons complained
against, the other persons are entitled to bring an action for
malicious prosecution.

22. 3. Prosecution should have been started
without any reasonable and probable cause
• Sailaja Kaur v. Lallu, AIR 1983 Raj 193
• An illiterate villager had filed a suit concerning some land and
had engaged an advocate for the purpose. In a latter litigation,
relating probably to the same matter or connected matter the
same advocate appeared against the villager. The villager filed a
complaint to the Bar Council against the advocate for
professional misconduct. The Bar Council finding some similarity
in the land in dispute ultimately came to the conclusion that
there were two different lands and gave the benefit of doubt to
the advocate. The advocate then sued there was reasonable
and probable cause for the complaint made by the villager
before the Bar Council and therefore the essential ingredient of
malicious prosecution were not made out as the institution of
suit was not motivated by malice.

23. • Sheo Singh v. Ranjit Singh and Others, AIR 1983 All 105
• In order to succeed in a suit for damages for malicious
prosecution, existence of malice and absence of reasonable and
probable cause have to be established as separate facts. It
cannot be inferred from the mere absence of reasonable and
probable cause for a prosecution that it is malicious or vice-
versa.

24. 4. Prosecution must have been initiated
with a malicious intention
• Absence of reasonable and probable cause will not alone create
liability, there must be malice.
• Padmanabhan Gangadharan v. Matheram Gangadharan,
AIR 1976 Ker 49
• In a suit for damages for malicious prosecution the wilful
behaviour of lodging of a false complaint raises a presumption
of existence of malice.

25. • C. Dakshin Moorthy v. K.K.B. Chettiar, AIR 1976 Ker 49
• A frivolous complaint for cutting a tree was lodged by the
defendant although he had knowledge that it is a false
complaint. The Court inferred malicious intention with other
elements.
• Smt. Sona Rani Dutta v. Debarata Dutta, AIR 1991 Cal 186
• The defendant filed FIR against the plaintiff and his sister
alleged that her earring was snatched away from her person
whereby she had sustained bleeding injury to her ear and thus
in order to set police machinery and law into motion added the
offence of theft with the offence of assault knowing well that
plaintiff had not snatched away her earring, the FIR was clearly
lodged out of malice.

26. 5. Plaintiff must suffer damage.
• C.M. Agrawala v. Halar Salt and Chemical Works, AIR 1977
Cal 386
• The Calcutta High Court held that the plaintiff can claim damage
on the following counts: damage to reputation, to the person, to
the property.
• Mohammed Amin v. Jogendra Kumar, AIR 1947 PC 103
• To found an action for damages for malicious prosecution based
upon criminal proceedings the test is not whether the criminal
proceedings, the test is whether the proceedings have reached
a stage at which damage to the plaintiff results.

27. Distinction between False Imprisonment
and Malicious Prosecution
• 1. False imprisonment is wrongfully restraining the personal
liberty of the plaintiff, malicious prosecution is wrongfully
setting the criminal law against him.
• 2. In FP it is the act of the defendant itself or its agents which
has caused the injury to the plaintiff; in MP it is the act of the
Court, although at the instance of the defendant which has
caused the injury complained of to the plaintiff.

28. • 3. In FP the personal liberty of the plaintiff is wrongfully
restrained by the private individual either personally or by
setting a ministerial officer in motion, while in MP the arrest is
secured under judicial sanction.
• 4. In FP the onus lies on the defendant to plead and prove
affirmatively the existence of reasonable and probable cause as
justification where in action for MP the plaintiff must allege and
prove affirmatively its non-existence.

29. • 5. Malice is an essential ingredient in an action for making
prosecution but in an action for FP it is not.
• 6. Damage is the gist of the action for malicious prosecution, in
which it has to be specially proved that the plaintiff has suffered
in person, reputation or pocket, but not so in an action of false
imprisonment. However, inconvenience and loss of reputation
caused to the plaintiff and the expenses incurred to regain
freedom from false imprisonment may be taken into
consideration in awarding damages.

30. THANK YOU!