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Table of Cases-: Sr. No. Name of Case Page No
Table of Cases-: Sr. No. Name of Case Page No
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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-
IMPACT-
The impact of the legal concept of false imprisonment is felt everywhere as no one’s 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, it’s importance can be felt greatly.
SOURCES-
The sources used in the writing of this research paper are books, legal databases and internet
websites.
2
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 man’s liberty irrespective of the place. 3 So, false imprisonment is the wrongful
restraint of a man’s liberty. The tort of false imprisonment is actionable per 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.6 Article 21 of the Constitution of India has therefore envisaged and
afforded protection to life and liberty of a person. 7 The 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.9 So, 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.
1
JUSTICE G P SINGH, RATANLAL & DHIRAJLAL- THE LAW OF TORTS, 259, (EDITION 26)
2
Id at 1
3
(WINFIELD,JOLOWICZ), TORT, 99, (EDITION 17)
4
(SIMON DEAKIN, ANGUS JOHNSTON AND OTHERS), MARKESINIS AND DEAKIN’S TORT LAW, 424, (EDITION 5)
5
Supra note 3, 103
6
B.M.GANDHI, LAW OF TORTS, 166, (EDITION 4)
7
Id at 6
8
Id at 6, 167
9
(A. LAKSHMINATH, M. SRIDHAR), RAMASWAMY IYER’S THE LAW OF TORTS, 52, (EDITION 10)
10
http://www.legalserviceindia.com/articles/fal_torts.htm (27/08/13, 7:34pm)
3
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-
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 of Bird v Jones.17
In Bird 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.
11
http://indiankanoon.org/doc/278610/ (27/08/13, 7:52pm)
12
http://indiankanoon.org/doc/1908902/ (27/08/13, 7:55pm)
13
Supra note 1, 260
14
P.S.A PILLAI, LAW OF TORT, 31, (EDITION 9)
15
Id at 14
16
Id at 14
17
Id at 14
18
Supra note 4, 425
4
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 person23 - Section 43 of the Code of Criminal Procedure, 1973 provides
that 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
19
DR. AVATAR SINGH, INTRODUCTION TO LAW OF TORTS, 107, (2001 EDITION)
20
Id at 19, 108
21
Supra note 1, 265
22
GULABCHAND KANNOOLAL V. STATE OF M.P., 1982
23
Supra note 1, 272
24
GOURI 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 a
compensable false imprisonment has occurred. An otherwise lawful detention may become
unlawful if the detention is prolonged for an unreasonable period of time.
• Knowledge of plaintiff 27– 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 the plaintiff was at all
cognizant of any restraint.
• Place of confinement 28- 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 motor
car, or a bank. An example is the case of Bird v. Jones.
DEFENCES-
25
Supra note 14, 53
26
http://www.legalserviceindia.com/articles/fal_torts.htm (28/08/13, 6:43pm)
27
Supra note 4, 425
28
Supra note 26, (28/08/13, 8:21pm)
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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 imprisonment
bars the right of recovery thereof. 29 Consent 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 plaintiff’s
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
individual’s 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.
REMEDIES-
29
Supra note 14, 36
30
http://www.legalserviceindia.com/articles/fal_torts.htm (28/08/13, 10:23pm)
31
Id at 30 (28/08/13, 10:36pm)
32
Id at 30 (28/08/13, 10:42pm)
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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.
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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-
36
B.M.GANDHI, LAW OF TORTS, 171, (EDITION 4)
37
Id at 36
38
AIR 1979 SC 1360
9
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 their
offence was proved, thereby depriving them of their freedoms.
CONCLUSION-
39
(1998) 7 SCC 507
40
(1984) 3 SCC 82
41
AIR 1983 SC 1086: (1983) 4 SCC 141: (1983) 3 SCR 508
42
(1910) A.C.295
10
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 the
Constitution 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.
BIBLIOGRAPHY-
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BOOKS-
Law of Torts
B.M.Gandhi
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/
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