Law

of Torts including MV Accident and

Consumer Protection Laws II

Chapter I: Torts Against Person and Personal Relations:

False Imprisonment

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA
¡  False imprisonment means total restraint of the liberty of a person, for
however short a time, without lawful justification.

¡  The word ‘false’ means ‘wrong’ or ‘erroneous’.

¡  It is a tort of strict liability and the plaintiff has not to prove fault on the
part of the defendant.

¡  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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 - “Suits for false
imprisonment are one of the categories of law of torts…The common law
of torts prevailed in our country before the Constitution on the basis of
justice, equity and good conscience. This principle of justice, equity and
good conscience which applied in India before the Constitution is
generally known as the English Common Law. Apart from the law of torts
there was not [sic] civil remedy for unlawful infringement of the right to
personal liberty in India before the Constitution.”

¡  Saheli v. Commissioner of Police, (1990) 1 SCC 422 - The Supreme Court

held that “In case of assault, battery and false imprisonment the
damages are at large and represent a solatium for the mental pain,
distress, indignity, loss of liberty and death.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Punjab & Haryana High Court Bar Association v. State of Punjab,
(1996) 4 SCC 742 - “It follows that ‘a claim in public law for
compensation’ for contravention of human rights and fundamental
freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights,
and such a claim based on strict liability made by resorting to
constitutional remedy provided for the enforcement of a fundamental
right is ‘distinct from, and in addition to, the remedy in private law for
damages for the tort resulting from the contravention of the
fundamental right.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  A V Janaki Amma v. Union of India, (2004) 1 ICC 789 (AP) - “Torts like
assault, battery and false imprisonment which are trespass to person by
Police Officer and investigating agencies which are not authorised under
law are Constitutional Torts. Awarding compensation is public law
remedy and available in a claim for deprivation of life and liberty alone.
The compensation awarded is for the pecuniary and non-pecuniary loss
suffered by the person due to illegal detention/imprisonment and is
given to recompense for the inconvenience and distress suffered by
the person.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

1.  The total restraint (Confinement) of the liberty of the person

2.  The detention must be unlawful

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  1. The total restraint (Confinement) of the liberty of the person

¡  A. The detention of the person may be either a. Actual/Physical or b.

Constructive – by mere show of authority.

¡  “Every confinement of the person is an imprisonment, whether it be in a

common prison, or in a private house, or in the stocks, or even by forcibly
detaining one in the public streets – BLACKSTONE’s Commentaries on
the Laws of England, Vol. III, 127’.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  B. 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.

¡  Syed Mahamad Yusuf-Ud-Din v. Secretary of State for India in Council,

(1902-03) 30 IA 154 - “Nothing short of actual detention and complete
loss of freedom will support an action for false imprisonment.”

¡  (IA- Indian Appeals- IA being Cases in the Privy Council in Appeal from the East Indies)

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  R. V. Bournewood Community and Mental Health NHS Trust, Ex. P L
[1999] 1 A.C. 458 - A mentally disordered patient who had been placed
voluntarily in an unlocked ward and showed no desire to leave had not
been detained, despite the fact that the hospital gave evidence that he
had been sedated and would have been detained compulsorily had he
sought to leave.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Robinson v. Balmain Ferry Co Ltd. [1910] A.C. 295 - The plaintiff had
contracted to enter the defendants’ wharf to catch a ferryboat to cross
the river. Fro reasons of efficiency, the fee of one penny was paid on one
side of the river, on entering and exiting the wharf. Having a 20 minutes
wait for the next boat, the plaintiff changed his mind and tried to exit the
wharf. He refused to pay the stipulated charge of one penny to leave the
wharf, as required by a notice above the turnstile. The defendants
refused to let him leave until the charge was paid.

¡  The Privy Council held that a penny charge was a reasonable condition
for leaving by a route different from the one stipulated in the contract.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Herd v. Weardale Steel, Coal and Coke Co Ltd. [1915] A. C. 67 - A miner
had refused to do certain work, on the basis that it was dangerous, and
had demanded to be taken to the surface before the end of his shift. His
employer refused.

¡  The Court held that the employer was not liable for false imprisonment
as the miner had voluntarily entered the mine under a contract of
employment, and was deemed to have impliedly consented that he
would not be brought to the surface until the end of the shift.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  2. The detention must be unlawful.

¡  It must not be made in pursuance of powers vested in the defendant by

law.

¡  A person who is lawfully arrested and detained in a prison or a convict

who is lawfully committed to prison cannot sue for false imprisonment if
he is held under physical conditions so intolerable that his health suffers.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Arrest by Police Officer: Section 4 (1) of the Code of Criminal Procedure,
1973

¡  ‘A Police Officer may arrest a person ‘who has been concerned in any
cognizable offence, or against whom a reasonable complaint has been
made, or credible information has been received or a reasonable
suspicion exists that the person to be arrested is concerned in any police
officer.’

¡  Gulabchand Kannoolal v. State of M.P., 1982 MPLJ 7 (17) - 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Article 22 (1), Constitution of India - No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the
grounds for such arrest, not shall he be denied the right to consult, and to
be defended by, a legal practitioner.

¡  Article 22 (2), Constitution of India - Every person who is arrested and

detained in custody shall be produced before a Magistrate within a
period of 24 hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the Magistrate and no
such person shall be detained in custody beyond the period without the
authority of a Magistrate.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Arrest by Private Person- Section 43 of the Code of Criminal Procedure,
1973

¡  ‘A private person may arrest any person who in his view has committed a
non-bailable and cognizable offence or is a proclaimed offender.’

¡  After making the arrest the person arresting must make over the person
arrested to a police officer of the nearest police station.

¡  Gouri Prasad Dey v. Chartered Bank of India, Australia and China,
(1925) ILR 52 Cal 615 - 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Gorikapati v. Arza Bikasham, 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.

¡  R v. Governor of Brockhill Prison, ex p Evans (No 2), (2001) 2 AC 19 - A

prison governor who calculated the claimant’s day of release in
accordance with the law as understood at the time of her conviction was
held liable when a subsequent change in the law meant that the prisoner
should have been released 59 days earlier.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Rudul Shah v. State of Bihar, (1983) 4 SCC 141; AIR 1983 SC 1086 - This
case deals with illegal detention of petitioner after acquittal in trial and
compensation for that matter. Petitioner was acquitted on 3-06-1968 but
released on 16-10-1982 i.e. released after more than 14 years. The
Supreme Court of India held that State should pay petitioner a further
sum of Rs. 30,000/- as an interim measure and it did not preclude
petitioner from bringing a suit to recover appropriate damages from
State and its erring officials.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Mahammad Yusufuddin v. Secretary of State for India, (1903) ILR 30
Cal 872 - A person who is lawfully arrested and detained in a prison or a
convict who is lawfully committed to prison cannot sue for false
imprisonment. If he is held under physical conditions so intolerable that
his health suffers, he will have a pubic law remedy of judicial review and a
private law remedy in negligence.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  John Lewis & Co. v. Times, (1952) AC 676 - A woman suspected of theft
in a large department store was arrested outside by store detectives and
taken back into the shop where the managing director considered the
case and, having decided to prosecute, immediately, sent for the police
officers to whom she was not detained beyond a reasonable time for the
managing director to make his decision, the owners of the shop were not
liable in damages for false imprisonment.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  John Lewis & Co. v. Times, (1952) AC 676 - A woman suspected of theft
in a large department store was arrested outside by store detectives and
taken back into the shop where the managing director considered the
case and, having decided to prosecute, immediately, sent for the police
officers to whom she was not detained beyond a reasonable time for the
managing director to make his decision, the owners of the shop were not
liable in damages for false imprisonment.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Where a defendant makes a complaint to a Judicial Officer and the
plaintiff is taken into custody on orders of the judicial officers, the
defendant is not liable for false imprisonment although he may be liable
for malicious prosecution.

¡  Biharilal Bhawasinka v. Jagannath Prasad Kajriwal, AIR 1959 Pat 490

- The party making the charge is not liable to an action for false
imprisonment, because he does not set a ministerial officer in motion,
but a judicial officer. The opinion and judgement of a Judicial Officer are
interposed between the charge and the imprisonment.’

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Lock v. Aston, (1848) 12 QB 871 - When the plaintiff is arrested without
a warrant and produced before a Magistrate who remands him in
custody, his remedies for detention before and after remand are
different. For detention prior to remand he can sue in trespass for false
imprisonment whereas for detention after remand, he can sue for
malicious prosecution.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Article 5 (1) , the European Convention on Human Rights

¡  McKay v. United Kingdom, (2006) 44 EHRR 827 - The European Court of

Human Rights observed that ‘in the first rank of fundamental rights that
protect the physical security of an individual…Its key purpose is to
prevent arbitrary or unjustified deprivations of liberty’.

¡  Secretary of State for the Home Department v AP (2010) UKSC 24 -
There must be more than mere restriction of liberty; there must be a
deprivation of liberty.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  C. Knowledge of Restraint

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

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Three stages:

¡  Herring v. Boyle (1834) – Knowledge is an essential

¡  Meering v. Graham White Aviation Company Ltd. (1919) 122 LT 44 –

Knowledge of detention is not essential to prove FI but might be relevant
to assessment of damages.

¡  Murray v. Ministry of Defence, (1998) 2 All ER 521 (HL) – Herring

rejected and Meering upheld by House of Lords

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Herring v. Boyle (1834) - Because of unpaid school fees, the headmaster
refused to allow a mother to take her son home for the Christmas
holidays. It was held that, since the boy was unaware of the detention,
there was no false imprisonment.

¡  Meering v. Graham White Aviation Company Ltd. (1919) 122 LT 44 - The

plaintiff was suspected of theft from his employers. The works’ police
took him to the company’s office for questioning. Unknown to the
plaintiff, the police waited outside the office and, if the plaintiff had tried
to leave, they would have prevented him from doing so.

¡  The Court of Appeal held that there was no need for the plaintiff to have
been aware of the imprisonment but knowledge of the detention might
be relevant to the assessment of damages.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Murray v. Ministry of Defence, (1998) 2 All ER 521 (HL) - The House of
Lords disapproved of Herring and approved Meering and ruled that
knowledge of the restraint of freedom of movement was not necessary
to establish false imprisonment.

¡  However, it further noted that a person who is unaware that he has been
falsely detained and has suffered no harm can only expect to obtain
nominal damages.

¡  R. V. Bournewood Community and Mental Health NHS Trust, Ex. P L

[1999] 1 A.C. 458 - The House of Lords held that although in cases of
false imprisonment it is not necessary for the plaintiff to be aware of the
detention, there must be an actual rather than a potential restraint on
the plaintiff’s liberty.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA


¡  1. 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.

¡  Quinland v. Governor of Swaleside Prison (2003) - The claimant had

been convicted of certain offences for which a total sentence of two
years and three months’ imprisonment should have been imposed. The
judge, however, made an arithmetical error in calculating the claimant’s
sentence, and due to further administrative errors, the claimant’s appeal
against his sentence was not heard until after his release.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  In the claimant’s action in false imprisonment for the period of detention
in excess of his sentence, the prison governor was not held liable in false
imprisonment.

¡  Until the court order was set aside the claimant’s detention was legally
justified as the prison governor had not other option than to obey the
warrant and he could not legitimately have acted otherwise.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  2. 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Anowar Hussain v. Ajoy Kumar, AIR 1959, Ass.28

¡  The plaintiff was arrested on the order of a Magistrate, but was
subsequently discharged on the report of the police that no case could be
made out against him. He filed a suit for compensation for false
imprisonment.

¡  The State was held not responsible for the tortious acts of its
subordinates, unless it could be proved that the impugned act had been
expressly authorized by the State.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Punjab & Haryana High Court Bar Association v. State of Punjab,
(1996) 4 SCC 742 - The Supreme Court held that “the defence of
sovereign immunity being inapplicable, and alien to the concept of
guarantee of fundamental right, there can be no question of such a
defence being available in the constitutional remedy.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Ravinder Kumar Sharma v. State of Assam, (1999) 7 SCC 435: AIR 1999
SC 3571 - The Supreme Court held that “the remedy of suit for damages
for false imprisonment is part of the law of torts in India. Under the law of
torts the defendant can claim to be judged not of the real facts but of
those which he honestly, and however erroneously, believes.”

¡  It further held that: “It is this principle which justified award of monetary
compensation for contravention of fundamental rights guaranteed by
the Constitution, when that is the only practicable mode redress
available for the contravention made by the State or its servants in the
purported exercise of their powers, and enforcement of the fundamental
right is claimed by resort to the remedy in public law under the
Constitution by recourse to Articles 32 and 226 of the Constitution.”

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  3. 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Robinson v. Balmain New Ferry Co (1910) AC 295

¡  A person who had taken a ticket for a ferry and gone to an enclosure of
the ferry company, was not allowed to go back without paying the
charge for doing so lawfully leviable by the rules of the company, it was
held that there was no imprisonment.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Herd v. Weardale Steel, Coal and Coke Co. (1915) AC 67 - A miner at the
bottom of the defendant’s mine asked for, and was not allowed, the use
of a lift to go up to the surface before the usual hour and was thus
detained for a short time, it was held that there was no imprisonment,
since the plaintiff had by going in agreed to abide by the conditions on
which he could go out.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  a. Self Defence

¡  b. Preventing Breach of Peace or Making Lawful Arrest- There is no

liability where detention is in accordance with the Criminal Procedure
Code, 1973 and the subsequent formalities are also observed i.e. the
officer should act in good faith in furtherance of the object of the
authorising statute; the detinue must be informed of the grounds of
arrest; he should be produced before a Magistrate within 24 hours and
further detention should be under magisterial orders.

¡  Arrest by Private Person: Section 43 of the Criminal Procedure Code,

1973 authorises private arrest of a person who has committed a non-
bailable cognizable offence. There is no liability if the person is promptly
handed over to authorities.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  c. 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.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  Austin and others v. The United Kingdom (2012) - This case origins in
the background of the G20 Summit in London in May 2001 which was
surrounded by considerable confrontation and widespread violence.

¡  Police intelligence identified that the protest would create one of the
most serious threats to public order ever seen in the city with a real risk
of serious injury and even death, as well as damage to property. The
crowd control strategy adopted by the police Kettling, was imposed to
create an absolute cordon to restrict movement around specific areas.

¡  The appellants, not themselves protestors, were contained within the

cordon for up to seven hours during the afternoon and into the evening.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA

¡  They argued that the containment within the cordon amounted to
deprivation of liberty within the meaning of Articles 5 (1) of the
Convention for the protection of Human Rights and Fundamental
Freedoms. The Court in Strasburg ruled that based on specific and
exceptional facts of this case, the Kettling did not amount to a
deprivation of liberty so Article 5 was inapplicable. However, the Court
went on to say:

¡  ‘It must be underlined that measure of crowd control should not be used
by the national authorities directly or indirectly to stifle or discourage
protest, given the fundamental importance of freedom of expression and
assembly in all democratic societies. Had it not remained necessary for
the police to impose and maintain the cordon in order to prevent serious
injury or damage, the ‘type’ of the measures would have been different,
and its coercive and restrictive nature might have been sufficient to bring
it within Article 5’.
Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA
¡  Holgate Muhammad v. Duke, (1984) 1 All ER 1054 - A constable
arrested a woman, suspecting her for theft of jewellery based on a
complaint by jewellery owner. As no evidence was discovered, she was
acquitted.

¡  In an action for false imprisonment, the House of Lords held that

statutory discretion to arrest was properly exercised, as the constable
had in good faith believed that there was a greater likelihood of a
revelation of the offence by confession, if she was detained and
interrogated.

¡  The House of Lords observed that objective test of reasonableness was

required to determine the liability of arresting officer.

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA


THANK YOU!

Dr. C J Rawandale, Director, Symbiosis Law School, NOIDA