UNITEDWORLD SCHOOL OF LAW

Assignment on

LAW OF TORTS
Report on
TORT OF DETENTION

For
Internal Evaluation
Submitted to
Dr. Akhilesh Pandey

Prepared by
Palak Katta
BBA-LLB SEM-1 2019
Roll No.-1006AL0067
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 DECLARATION

The text reported in the project is the outcome of my own efforts

and no part of this project assignment has been copied in any unauthorized
manner and no part of it has been incorporated without due acknowledgement.

PALAK KATTA

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A. Table of Cases

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 B. INTRODUCTION

A tort, in common law jurisdictions, is a civil wrong. That causes a claimant to suffer loss or harm, resulting in
legal liability for the person who commits the tortious act. It can include the intentional infliction of emotional
distress, negligence, financial losses, injuries, invasion of privacy and many other things.

Tort law, where the purpose of a legal action is to obtain a private civil remedy such as damages, may be
compared to criminal law, which deals with criminal wrongs that are punishable by the state. Tort law may also
be contrasted with contract law, which also provides a civil remedy after breach of duty; but whereas the
contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state.
In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a
direct result of the breach of duty.1

The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose
liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts
can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden
of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary
compensation. Less common remedies include injunction and restitution.2

SALMOND's Definition: Tort is a civil wrong for which the remedy is a common law action for unliquidated
damages, and which is NOT exclusively the breach of a contract, or, the breach of a trust, or, other merely
equitable obligation3.

Limitation Act 1963: Sec 2(m) of the limitation Act 1963 defines Tort as “Tort means a civil wrong which is
not exclusively a breach of contract or trust4.”

1
https://en.wikipedia.org/wiki/Tort accessed on 9 October 2019
2
law.cornell.edu/wex/tort accessed on 9 October 2019
3
https://www.academia.edu/6871868/TORT_-TOPIC_1_INTRODUCTION_Definition_Nature_and_Scope accessed on 9 October
2019

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Limitation Act 1963, Sec 2(m)
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 C. TORT OF DETENTION

a. What is Tort of Detention?

The act of retaining a person or property, and preventing the removal of such person or property.

The detention may be occasioned by accidents; e.g., the detention of a ship by calms, or by ice; or it
may be hostile; e.g., the detention of persons or ships in a foreign country, by order of the government.
In general, the detention of a ship does not change the nature of the contract, and sailors will be entitled
to their wages during the time of the detention.5

 A detention is legal when the party has a right to the property, and has come lawfully into possession. It 
is illegal when the taking was unlawful, as is the case of forcible entry and detainer, although the party 
may have a right of possession; but, in some, cases, the (retention may be lawful, although the taking ma
y have been unlawful.. When the taking was legal, the detention may be illegal; as, if one borrow a hors
e, to ride from A to B, and afterwards detain him from the owner, After demand, such detention is unla
wful, and the owner may either retake his property, or have an action of replevin or detinue. In some cas
es, the detention becomes criminal although the taking was lawful, as in embezzlement.6

b. Detention as an element of False Imprisonment

Detention is also an element of the tort of False Imprisonment. False imprisonment is the illegal
confinement of one individual against his or her will by another individual in such a manner as to
violate the confined individual's right to be free from restraint of movement.7

c. Detention without lawful justification

In the case of false imprisonment it is necessary that the total restraint or detention should be unlawful
or without any lawful justification. Thus in Rudal Sah v. State of Bihar,8 the petitioner released from the

5
https://www.lectlaw.com/def/d212.htm accessed on 9 October 2019
6
https://legal-dictionary.thefreedictionary.com/detention accessed on 9 October 2019
7
Ibid
8
AIR 1983 SC 1086
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 jail after fourteen years in 1982. The State pleaded that the detention was for the medical treatment of
the petitioner for his mental imbalance. The plea of habeas corpus by the petitioner, the Supreme Court
granted Rs. 35,000 as compensation as an interim measure without precluding the petitioner from
claiming further compensation.

Similarly in Bhim Singh v. State of J&K9 the petitioner, an MLA of the J&K Assembly was wrongfully
detained by the police in order to prevent him from attending the Assembly session. The Supreme Court
held it a mischievous and malicious detention and granted exemplary damages amounting to Rs. 50,000.

Kundan Lal v. Dr. Des Raj10, is another illustration of unlawful detention where the superintendent of
police, or an application moved by the surety, cancelled the the bail bond and ordered the rearrest of the
plaintiff. Consequently the sub- inspector rearrested him. It was held by the court that since
Superintendent of Police did not have such a power, his order and consequential rearrest of the plaintiff
were unlawful. Accordingly, both the Superintendent of Police and the sub- inspector were held liable.

In the case of Gankipati v. Araza Bishkam, the defendant made a false report to the police that the
plaintiff was instrumental in setting fire to his property. Consequently, the plaintiff was arrested by the
police but the charge was found to be false and therefore he was discharged. Since the defendant made
the complaint without any justification which resulted in the arrest of the plaintiff, the court held the
defendant liable for false imprisonment.

D. DIFFERENT TYPES OF DETENTION

a. Preventive Detention

Preventive detention means to detain a person so that to prevent that person from commenting on any
possible crime or in other words preventive detention is an action taken by the administration on the
grounds of the suspicion that some wrong actions may be done by the person concerned which will be
prejudicial to the state. Preventive Detention is the most contentious part of the scheme fundamental
rights in the Indian constitutions Article 22(3) provides that if the person who has been arrested or
detained under preventive detention laws then the protection against arrest and detention provided under
article22 (1) and22 (2) shall not be available to that person.11

9
AIR 1986 SC 494
10
(1954) 56 PLR 331
11
http://www.legalserviceindia.com/legal/article-751-preventive-detention.html accessed on 9 October 2019
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 A three-Judge Bench of the Supreme Court in

Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 200512

while upholding the validity of the power of the Police under section 151 of the Criminal Procedure
Code 1973 to arrest and detention of a person without a warrant to prevent the commission of a
Cognizable offense ruled that a provision could not be held to be unreasonable as arbitrary and therefore
unconstitutional merely because the Police official might abuse his authority.

This preventive detention act is a necessary tool in the hands of the executive which authorizes them to
arrest any person from whom reasonable suspicious arises that he can commit any cognizable offense or
his activities are prejudicial to law and order to state and the police can arrest that person without
warrant.

A.K. Gopalan Vs. The State of Madras13

The preventive Detention Act, 1950, with the exception of section 14 thereof did not contravene any of
the Articles of the Constitution and even though section 14 was ultra vires inasmuch as it contravened
the provisions of Article 22 of the Constitution, as this section was severable from the remaining
sections of the Act, the invalidity of Section 14 did not affect the validity of the Act as a whole and the
detention of the petitioner was not illegal.

b. Punitive Detention

Punitive detention is the detention as a punishment for the crime committed by an individual. It takes
place after the actual commission of an offence or at least after an attempt has been made. The time
taken from actual offence to detention can vary in length. It is a punishment imparted to the wrongdoer
and involves strict measures. The duration of such a detention depends on what the law stipulates for the
particular offence.14

c. Detention of Suspect15

12
Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005
13
AK Gopalan vs The State Of Madras (AIR 1950 SC 27)
14
http://sanamurtaza.blogspot.com/2011/08/punitive-and-preventive-detention.html accessed on 9 October 2019
15
https://definitions.uslegal.com/d/detention-of-a-suspect/ accessed on 9 October 2019
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 Detention of a suspect means to keep an arrested person in police custody. A person detained is usually
kept in police cell, prison or other detention centre. This is mostly applied in cases of person facing trial
or sentencing. The Fifth Amendment to the U.S. Constitution protects a person from being held in
prison unlawfully.

Detention of a suspect occurs mainly for the following reasons:

1. The suspect has been accused of carrying out a particularly serious offence;

2. The suspect having previous convictions for similar offences;

3. There are reasons to believe that the suspect could leave the court's jurisdiction to avoid its trial and
possible punishment;

4. There are reasons to believe that the suspect may destroy evidence or interfere with witnesses;

5. The suspect is likely to commit further offences before the trial; and

6. The suspect is believed to be in danger from accomplices, victims, or vigilantes.

Detentions And Arrests16

In general, if a reasonable person in the suspect’s shoes wouldn’t feel free to leave an encounter with the
police, then there’s been either a detention or an arrest. Determining which can be tough—and
sometimes crucial. Suppose, for instance, that an officer has reasonable suspicion to detain someone, but
not probable cause to arrest them. In the course of the encounter, the officer discovers incriminating
evidence. In this situation, if the defence attorney persuades the court that, instead of merely detaining
her, the officer arrested the suspect without probable cause, then the evidence may be inadmissible in
court.

An officer’s “brief and cursory” holding and questioning someone is a detention. An example is a cop
stopping someone who is behaving suspiciously in order to ask a few questions. The suspect isn’t free to
leave, but he also isn’t under arrest, at least until the officer develops probable cause. Another common
example is an officer pulling over a driver for some kind of traffic or equipment violation.

An arrest, on the other hand, involves the police taking someone into custody through a more significant
restraint on movement. The quintessential example involves the use of handcuffs and an advisement that
the suspect is under arrest.

16
https://www.nolo.com/legal-encyclopedia/arrest-vs-detention-how-tell-whether-you-ve-been-arrested-simply-detained.html
accessed on 9 October 2019
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 d. Indefinite Detention

Indefinite detention is the practice of detaining an arrested person by a national government or law
enforcement agency without a trial. It may be made by the home country or by a foreign nation.
Indefinite detention is a controversial practice, especially in situations where the detention is by a
foreign nation. It is controversial because it seema to violate many national and international laws. It
also violates human rights laws.
Indefinite detention is seen mainly in cases of suspected terrorists who are indefinitely detained. The
Law Lords, Britain’s highest court, have held that the indefinite detention of foreign terrorism suspects
is incompatible with the Human Rights Act and the European Convention on Human Rights.
In the U.S., indefinite detention has been used to hold terror suspects. The case relating to the indefinite
detention of Jose Padilla17 is one of the most highly publicized cases of indefinite detention in the U.S.
In the U.S., indefinite detention is a highly controversial matter and is currently under review.
Organizations such as International Red Cross and FIDH are of the opinion that U.S. detention of
prisoners at Guantanamo Bay is not based on legal grounds. However, the American Civil Liberties
Union is of the view that indefinite detention is permitted pursuant to section 412 of the USA Patriot
Act.18

E. CONCLUSION

17
Rumsfeld v. Padilla, 542 U.S. 426 (2004)
18
https://definitions.uslegal.com/i/indefinite-detention/ accessed on 9 October 2019
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The unlawful restraint of a person's freedom of movement, constituting false imprisonment, can arise
from words or acts which cause reasonable apprehension. The actual time span of the detention may be
no more than momentary. The right to detain another for a reasonable time is extended to individuals
having legal authority. What constitutes a reasonable time for lawful detention depends almost entirely
on the facts and circumstances surrounding each particular case. The question of reasonableness in
every instance may depend on a variety of factors including judicial accessibility and facilities, the
required duties of the arresting officer, probable cause, the physical or mental condition of the person
being detained, and the apparent intentions of all parties. It appears from the majority of the cases
researched that an arresting officer has more latitude, in both the manner and length of detention in
making an arrest, than does a citizen acting on similar probable cause. Both the officer and the citizen
must exercise diligence in the investigation which prompts the detention or arrest, and the lack of due
care or the use of more forceful coercion in restraining the plaintiff than is reasonably necessary under
the circumstances, will lead to liability.

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