False Imprisonment & Malicious Prosecution

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.

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

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.

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.

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.

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.

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.

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.

e. If a person procures ministerial officers to arrest unlawfully or to execute a false order, in such a way as to make them his agents, he may be liable for false imprisonment.

Merely giving information, on which the ministerial officers choose to act is not sufficient; there must be actual direction or authorisation to constitute them the informant’s agent.

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.

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.

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.

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.

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

h. Public authority

1. Juridical 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.

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.

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.

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 is prosecution and a suit for malicious prosecution can be lodged for such proceedings.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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