False Imprisonment Project

8/10/2019 False Imprisonment Project

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RESEARCH METHODOLOGY-

AIM-

The aim of this research paper is to define and understand all the features of the concept of false

imprisonment as a tort.

OBJECTIVES-

The objective of this paper is to cover the topics-

Definition of false imprisonment.

Explanation of the tort. Conditions to prove the tort

Ingredients

Defenses

Remedies

Important cases

IMPACT-

The impact of the legal concept of false imprisonment is felt everywhere as no ones liberty can

be wrongly restrained. Those who commit false imprisonment will be punished and thereby

ensure there is no human rights violation.

RELEVENCE-

Although the concept of false imprisonment was introduced into the legal system many years

ago, it is still extensively used as it is very important. Since false imprisonment is being

committed very often even today, its importance can be felt greatly.

SOURCES-

The sources used in the writing of this research paper are books, legal databases and internet

websites.


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INTRODUCTION-

False imprisonment is the total restraint of the liberty of a person, for, however, short a time,

without lawful excuse.1 The word false means erroneous or wrong.

2 Imprisonment means the

restraint of a mans liberty irrespective of the place.3 So, false imprisonment is the wrongful

restraint of a mans liberty. The tort of false imprisonment is actionableper se.4

It may also be defined as an act of the defendant which causes unlawful confinement to the

plaintiff. For imprisonment it is not necessary that the person should be put behind bars, but he

should be confined in such an area from where there are no possible ways of escape except the

will of the person who is confining the person within that area.

It is not the degree of the imprisonment that matters but it is the absence of lawful authority to

justify unlawful confinement which is of relevance. If the person is unaware of a possible escape,

but an escape actually exists, it will still be a case of false imprisonment.5

No man may imprison another without due process of law is a principle accepted universally and

especially in all democracies.6Article 21 of the Constitution of India has therefore envisaged and

afforded protection to life and liberty of a person.7The right to personal safety gives rise to the

right of personal freedom and it contemplates and encompasses therefore the immunity not only

from the actual application of force but also from detention and unauthorized restraint, which go

to constitute this tort.8

Every restraint of the liberty of one person by another is in law an imprisonment and, if imposed

without lawful cause, a false imprisonment which is both a criminal offence and an actionable

tort.9So, false imprisonment can either be a crime or a tort.

AS A CRIME-

False imprisonment as a crime is in The Indian Penal Code from S. 339 to S. 348.10

The crime

can be either wrongful restraint or wrongful confinement that is S. 339 and S. 340 respectively

under The Indian Penal Code.

1JUSTICE G P SINGH, RATANLAL & DHIRAJLAL- THE LAW OF TORTS, 259, (EDITION 26)

2Id at 13(WINFIELD,JOLOWICZ), TORT, 99, (EDITION 17)

4(SIMON DEAKIN, ANGUS JOHNSTON AND OTHERS), MARKESINIS AND DEAKINS TORT LAW, 424, (EDITION 5)

5Supra note 3, 103

6B.M.GANDHI, LAW OF TORTS, 166, (EDITION 4)

7Id at 6

8Id at 6, 167

9(A. LAKSHMINATH, M. SRIDHAR), RAMASWAMY IYERS THE LAW OF TORTS, 52, (EDITION 10)

10http://www.legalserviceindia.com/articles/fal_torts.htm (27/08/13, 7:34pm)
http://www.legalserviceindia.com/articles/fal_torts.htmhttp://www.legalserviceindia.com/articles/fal_torts.htm


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Under wrongful restraint, there is only a partial wrong and there is scope for escape.11

However,

under wrongful confinement, there is a total or complete wrong and there is no way of escape.12

For action as a civil wrong, wrongful confinement is required.

AS A TORT-

As a tort, false imprisonment is considered a trespass to person. Keeping a person confined in

one area or not allowing a person to move freely is restrictive on the body of a person and hence,

it is a trespass to person.

CONDITIONS TO PROVE THE TORT-

There are two conditions to prove that it is a case of false imprisonment.13

The total restraint of the liberty of a person

The detention must be unlawful

Restraint- The restraint must be complete.14

There must have been restriction in all directions.15

If the plaintiff was free to move in any direction, and was only prevented from proceeding in one

particular direction, then it will not be considered as constituting the wrong of false

imprisonment.16

This is seen in the landmark case ofBird v Jones.17

InBird v Jones18

, a section of Hammersmith Bridge was temporarily fenced off. The plaintiff,who insisted on climbing over the fence to go forward, was prevented from doing so, but was

told he could go back instead. The court held that he had not been falsely imprisoned and held

that his attempt to move forward was a breach of the peace for which he had been lawfully

arrested

Unlawful- the act will be considered as false imprisonment only if the person has been

wrongfully arrested. If the person has been lawfully arrested, it will not be a case of false

imprisonment.

11http://indiankanoon.org/doc/278610/ (27/08/13, 7:52pm)

12http://indiankanoon.org/doc/1908902/ (27/08/13, 7:55pm)

13Supra note 1, 260

14P.S.A PILLAI, LAW OF TORT, 31, (EDITION 9)

15Id at 14

16Id at 14

17Id at 14

18Supra note 4, 425
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The detention of a person can be of two types-19

Actual This means that the detention involves physically laying hands upon a person.

May involve the use of handcuffs.

Constructive This involves merely show of authority like a police officer or a

constable. It does not involve the use of handcuffs.

LIABILITY-

A person may be liable for false imprisonment not only when he directly arrests or detains

the plaintiff but also if he was active in promoting or causing the arrest or detention, even if

he does so through the instrumentality of officers, when arrest is ordered by Magistrate on

complaint, the complaint is not liable unless he actively brings about the detention.20

Arrest by public officer21

- Section 41(1) of the Code of Criminal Procedure, 1973 provides

that a police officer may arrest a person who has been concerned in any cognizable offence,

against whom a reasonable complaint has been made, or credible information has been

received or a reasonable suspicion exists of having been so concerned. The existence of a

reasonable suspicion that the person to be arrested is concerned in any cognizable offence is

the minimum requirement before an arrest can be made by a police officer.22

Arrest by private person

23

-Section 43 of the Code of Criminal Procedure, 1973 providesthat a private person may arrest any person who in his view has committed a non-bailable

and cognizable offence or is a proclaimed offender. It is not essential that a private

individual, in whose presence a non-bailable and cognizable offence is committed, should

himself physically arrest the offender. He may cause such offender to be arrested by another

person.24

19DR. AVATAR SINGH, INTRODUCTION TO LAW OF TORTS, 107, (2001 EDITION)

20Id at 19, 108

21Supra note 1, 265

22GULABCHAND KANNOOLAL V. STATE OF M.P., 1982

23Supra note 1, 272

24GOURI PRASAD DEY V. CHARTERED BANK OF INDIA, AUSTRALIA AND CHINA, 1925


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INGREDIENTS OF FALSE IMPRISONMENT-

Period of confinement The period for which the detention continues is immaterial if it

is unlawful.25

Confinement for a very short period, say fifteen minutes is sufficient to create

liability of false imprisonment. The period of confinement is generally of no relevance except

in the estimation of damages. The lengthy confinement does not necessarily mean that acompensable false imprisonment has occurred. An otherwise lawful detention may become

unlawful if the detention is prolonged for an unreasonable period of time.

Intention factor26

- Normally this tort of false imprisonment must be intentional. A

person is not liable for false imprisonment unless his or her act is done for the purpose of

imposing a confinement or with knowledge that such a confinement, to a substantial certainty

will result from it. The necessary intent for the purposes of false imprisonment is the intent to

confine. In order to demonstrate the necessary element of intent, the defendant must only

intend to accomplish the act that causes the confinement, they need not contend that the

confinement was unlawful; the defendants actual motives are immaterial. Malice isirrelevant to this tort. Even negligent acts causes this tort of false imprisonment for example

if a person locks someone inside a room without unaware of the fact that there is someone in

the room than he is held liable for false imprisonment.

Knowledge of plaintiff27

It is not necessary that the plaintiff should have been aware

of his imprisonment at the time of confinement. This is seen in the case of Meering v.

Graham-White Aviation Co. Ltd. where the court held that knowledge was not necessary.

However, it is different in the case of Herring v. Boyle in which, a mother went to pick up

her son from a private school but was not allowed to until she paid the fee. The court held

that the boy had not been falsely imprisoned because there was nothing to show that theplaintiff was at all cognizant of any restraint.

Place of confinement28

- The term false imprisonment is misleading in that it does not

necessarily means confinement to a jail or prison. To constitute the wrong in imprisonment

there needs to be no actual imprisonment in the ordinary sense- i.e. incarceration. Any

confinement in the ordinary sense whether be it prison or any place used temporarily for the

purpose of confinement constitutes false imprisonment. Thus an action of false imprisonment

may lie due to confinement in a mental institution, hospital, nursing home or juvenile home.

A mere unlawful arrest, for example amounts to false imprisonment and so does the act by

which a man is prevented from leaving the place in which he is: for example a house, a motorcar, or a bank. An example is the case ofBird v. Jones.

25Supra note 14, 53


27Supra note 4, 425

28Supra note 26, (28/08/13, 8:21pm)


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DEFENCES-

Consent-

Although it has been denied that one may consent to unlawful restraint, on the ground

that liberty is an inalienable prerogative of which no one may divest himself, it is

frequently held that the consent of the plaintiff to acts which constitute an imprisonmentbars the right of recovery thereof.

29Consent must be free from duress, coercion, fraud or

mistake. Consent can also be implied in certain circumstances.30

In Herd v. Weardale Steel, Coal and Coke Company Ltd. , the plaintiff a minor

descended to the bottom of the lift at the start of his shift but then refused to do certain

work and asked to be lifted up to the surface. The plaintiff was allowed to go back to the

surface at the end of the morning shift and even than he was not allowed to be taken back

when all the workers of the morning shift had been taken to the surface. The plaintiff

sued the defendants claiming false imprisonment. The House of Lords dismissed his

claim and held that the plaintiff voluntarily took the risk that if he did not work and

wanted to be taken back to the surface, than he can be made to wait.

Contributory negligence31

-

While there is some authority to the effect that the negligence of the plaintiff may bar

recovery for the tort of false imprisonment, there is some authority that the negligence of

the plaintiff in not a defense for false imprisonment. In any event the plaintiffs

contributory negligence can be proved for the mitigation of damages but it is not taken as

an absolute defense for false imprisonment.

Probable cause32

-It is a complete defense to actions for false imprisonment. When the probable cause is

established, then the action of false imprisonment fails completely. It is said that the test

for probable cause for imprisonment and arrest is an objective one, based not on the

individuals actual guilt, but upon the information of credible facts or information that

would induce a person of ordinary caution to believe the accused to be guilty. A

defendant who in a false imprisonment or false arrest action has established the probable

cause for the alleged tort than he has no additional obligation to prove. Even malicious

motives will not support a claim if probable cause is found to exist.

29Supra note 14, 36


31Id at 30 (28/08/13, 10:36pm)

32Id at 30 (28/08/13, 10:42pm)


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REMEDIES-

There are three remedies for false imprisonment-

Self help

Habeas corpus Action for damages

1) Self help33

-

A person who is unlawfully detained may use self-help to escape including reasonable

force so as to defend him from unlawful arrest. The force used must be proportionate in

the circumstances. This is risky course since the power to arrest is likely to depend upon

not only in the commission of offence but in the alternative, in a reasonable suspicion

thereof. Hence an innocent person who forcibly resists may be liable for battery if the

arrester had reasonable grounds for his suspicion.

2) Habeas corpus34

This writ is considered to be a golden remedy by the English Law. The Supreme Court of

India and High Court of states issue this writ under article 32 and 226 respectively. This

is concerned with the cases of false arrest or for prolonged detention by police officers.

Here the person can apply for the writ which will command him to come to the court on a

certain day, stating the day and the cause of his detention and then abiding by the

decision made by the court. The decision will be that either the prisoner will be released

or if the detention is proved than he will be speedily produced before the court for a trial.

Subject to the rules framed by the High Courts, an application for habeas corpus can be

made by the person in confinement or by any person on his behalf. The writ of habeas

corpus is effective means of immediate release from unlawful detention, whether in

prison or private custody.

3) Action for damages35

-

Damages in false imprisonment are those which flow from the detention. A person

injured by the conduct that is either intentional or reckless is entitled to compensatory

damages and is under no duty to mitigate such damages. There is no legal rule for the

assessment of the damages and this is entirely left on the court to measure damages.

Nominal and Compensatory DamagesThe general rule in personal tort action is

that the plaintiff is entitled to recover such a sum that shall be fair and just, in the

33Supra note 14, 36

34Supra note 14, 36

35Supra note 14, 36


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absence of circumstances justifying an award for exemplary damages. The mere

unlawful detention constitutes the basis for the recovery of at least nominal

damages, but an award of only nominal damages may be insufficient and flawed

where the facts proved indicate a right to greater damages.

Punitive, Exemplary and Aggravated Damages -

If an imprisonment is affected recklessly, oppressively, insultingly and

maliciously with a design to oppress and injure, the court may award exemplary

or punitive damages. Punitive damages are awarded in cases where the defendants

conduct is recklessly indifferent to the rights of others or in intentional or wanton

violation of those rights, and such damages are awarded to give a deterrent. In

some circumstances exemplary damages may be provided as when there is abuse

of power by the state.

CASES LAWS-

Raja p. v. Naidu Bahadur v. A. Roodrappa

36-

This is the first Indian case ever reported under false imprisonment, which is earlier than

Bird v. Jones. In this case, the Raja a Zamindar having discharged certain persons for

some alleged misconduct ejected them from their premises to which the Raja had no title

and put them under personal restraint, seizing all the property. The aggrieved persons

filed a suit. The judicial committee ordered the restoration of property and payment of

compensation in damages of Rs.300 each for the unlawful restraint. The case points out

that the restrain on personal liberty is a very serious affair where more than mere nominal

damages that is, substantial damages may be awarded.

Maharani of Naha v. Province of Madras37

In this case it was decided that there was no false imprisonment because the restraint was

only partial and not total. The facts were that Maharani with her daughter was awaiting

the arrival of the train, in her own car placed in the railway compound fenced on three

sides by the railway premises and iron fencing on one side. On arrival of the train a police

sub-inspector acted on the bona-fide belief that he was to detain the Maharani not only

prevented her from boarding the train but also got the gate closed and posted two

constables near it.

36B.M.GANDHI, LAW OF TORTS, 171, (EDITION 4)

37Id at 36


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Hussainara Khatoon(I) v. State of Bihar38

In this case, it was held that speedy trial is an integral part of fundamental right of life and

liberty as enshrined in Article 21of the constitution. Further it laid down norms for speedy

disposal of cases, after analyzing the fact that a large number of men and women had been

held behind bars awaiting trial, for longer than periods that they would have to serve if theiroffence was proved, thereby depriving them of their freedoms.

Raj Deo Sharma v. The State of Bihar39

In this case, the question before the court was whether on the facts and circumstances of

the case, the prosecution against the petitioner is to be quashed on the ground of delay in

the conduct of trial.

Sebasitian M. Hongray v. Union of India40

In this case, two persons were taken into custody by the Army authority in Manipur, butwere not produced in obedience to a writ of habeas corpus and it was held that those

persons must have met an unnatural death while in army custody. The Supreme Court

directed the Union of India to pay exemplary damages for the action of the army

authorities in murdering the two persons.

Rudal Shah v. State Of Bihar41

In this case, a petition arose under article 32, complaining prolonged detention of the

petitioner even after his acquittal. The Supreme Court directed immediate release of the

petitioner and directed the state to for the damages.

Robinson v. Balmain Ferry Co Ltd42

In this case, the claimant paid a penny for entry to the defendants wharf from which he

proposed to cross the river by one of the defendants ferry boats. A boat had just gone

and there wasnt another one for another 20 minutes. The claimant did not wish to wait

and went to the exit. There, he refused to pay another penny which was chargeable for

exit, which was mentioned on a notice board, and the defendant refused to let him leave

until the amount was paid. The Judicial Committee held that this was not a case of false

imprisonment.

38AIR 1979 SC 1360

39(1998) 7 SCC 507

40(1984) 3 SCC 82

41AIR 1983 SC 1086: (1983) 4 SCC 141: (1983) 3 SCR 508

42(1910) A.C.295


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CONCLUSION-

The tort of false imprisonment is one of the most severe forms of human rights violation.

Recognition of the human being in the convicted offender is necessary. The Indian socio-legal

system is based on non-violence, mutual respect and human dignity of the individual. The right

of a person to personal liberty, freedom and life with dignity has been guaranteed by theConstitution under the articles 19, 20 and 21, of which articles 20 and 21 cannot be abrogated

even during emergency, and false imprisonment is incongruous of the same. The term of

imprisonment is a decisive and vital factor to be taken into consideration in order to compute and

award damages. And while awarding damages for false imprisonment physical or mental injury

has to be kept in mind. The mere fact that the person has been imprisoned raises the claim of

nominal or compensatory damages if no other injury was caused to the plaintiff. The person who

is about to be falsely arrested or imprisoned can also use reasonable force in order to prevent

false arrest. He can use force for self-defense but has to make sure that the force used is

reasonable according to the circumstances. While awarding damages for false imprisonment

physical or mental injury, humiliation, loss of reputation, fright and the fact that the

imprisonment is affected recklessly, oppressively, insultingly and maliciously with a design to

oppress and injure has to be kept in mind. Ensuring fundamental rights to all its citizens is the

main objective of the land. False imprisonment is a violation of this right and hence, the

government has taken action against it and made it a crime as well as a tort. If false

imprisonment was not made an offence, people would be taken advantage of. So, the government

must be commended.


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BIBLIOGRAPHY-

BOOKS-

The Law of Torts

Ratanlal & Dhirajlal

Ramaswamy Iyers The Law of Torts

A. Lakshminath & M. Sridhar

Law of Torts

B.M.Gandhi

Introduction to Law of TortsDr. Avatar Singh

Markesinis and Deakins Tort Law

Simon Deakin, Angus Johnston and Basil Markesinis

Tort

Winfield and Jolowicz

Law of Tort

P.S.A Pillai

INTERNET WEBSITES-

http://www.legalserviceindia.com/articles/fal_torts.htm

http://indiankanoon.org/doc/278610/

http://indiankanoon.org/doc/1908902/
http://www.legalserviceindia.com/articles/fal_torts.htmhttp://indiankanoon.org/doc/1908902/http://indiankanoon.org/doc/1908902/http://www.legalserviceindia.com/articles/fal_torts.htm

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