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Law of Torts - False Imprisonment an Overview of the Defenses
False Imprisonment primarily falls under the ambit of Trespass to a Person. Trespass to a person is the wrong done to a person, a tort committed upon a person which includes primarily the following kinds of wrong namely:-
· Nervous Shock
· Torts relating to violation of domestic and other miscellaneous rights such as
A) Marital rights,
B) Parental rights,
C) Right to service,
D) Enticing away servant
· False Imprisonment.
The project in hand shall focus on the last tort mentioned-False Imprisonment.
Before the term False Imprisonment is defined, it shall be best to see certain situations that shall constitute false imprisonment:-
· The situation where robbers break into a bank and by force, take the bank’s customers and employees as hostages.
· On failing to pay the bill, a customer is detained by the respective business owner.
· To lock a person in a room without permission from him/her.
· A person possesses an object of value of another and using this position adversely, holds the other in detention in a particular place without his consent.
· Unjustified detainment of a person forcefully.
· A security guard or store owner may be found guilty of the above tort if he/she detains a person for a long period of time that is beyond reason on the grounds of questioning for supposed theft.
· Medical staff administering medication to a person without the latter’s willful consent.
Eminent jurists have put forward the definitions of false imprisonment as given below:
Winfield: “Infliction of bodily restraint which is not expressly or impliedly authorized by the law”.
Black Stone: “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 street”.
Duke and Atkin: “Imprisonment is no other thing but the restraint of a man’s liberty whether it be in the open field or in the stocks or in the show-case, in the streets, in a man’s own house as well as in the common gaol; and in all the places the party so constrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or otherwise.
The detainment shall have implementation of force or shall have the effect of the same, explicit or implied, either physical force or creation of such circumstances that shall amount to restraint inspite of absence of the usage of real physical force (Refusing to provide a person a boat who is aboard a ship, in this case, though the words spoken do not amount to any physical force, however, the instance of not furnishing a boat is an action enough that will cause restraint of the person as he is left with no other remedy to reach the land in the absence of a boat).
Criminal Law- Wrongful Confinement:-
It must be said that false imprisonment falls under both civil law in the form of a tort and is a criminal offence too. Section 340 of the Indian Penal Code addresses false imprisonment by the name of “wrongful confinement”.
Human Rights Violation:-
The tort of false imprisonment signifies a form of human rights violation as it puts a constraint on the liberty of a person completely. The action of false imprisonment gives rise to liability in torts and it is a criminal offence as well. Of late, the concept of false imprisonment has become significant in India as it directly aims at violating human rights by way of restricting the person’s right to freedom and movement that is enshrined under Article 19(1) - All citizens shall have the right to – (d) to move freely throughout the territory of India and Article 21 that preserves a the personal liberty of a person. Therefore, cases of false imprisonment require stringent laws regulating the offenders.
First held in The Court of Appeal in Devison vs. Chief Constable, North Wales (1994) 2 All ER 597 (CA)-If a person lawfully confined in a prison is subjected to torture and kept in intolerable physical conditions, it will make his detention in the prison unlawful and the prisoner concerned will have a right to sue the prison authorities for false imprisonment. Hence, this case laid the foundation of the fact that even prisoners in a jail can utilize the concept of false imprisonment and sue the concerned authorities for ill-treatment and torture.
In India, the most significant case handling the rights of the prisoners is D.K.BASU v. STATE OF WEST-BENGAL, AIR 1997 SC 3017
Facts: The petitioners raised an objection about the unbridled police powers in the prisons among few other issues.
Held: The Supreme Court held that violent acts carried out on prisoners including torture that often lead to death goes againt the Rule of Law.
Hence, the court issued11 directives to bring about a check on police power:-
1. The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name-tags with their designations.
2. The Police officer carrying out arrest shall prepare a memo of arrest which shall be attested by atleast one witness who maybe either a member of family of arrestee or respectable person of the locality from where arrest is made.
3. The person arrested shall be entitled to inform his friend/relative or person having interest in his welfares, as soon as practicable, that he has been arrested and/or detained in a particular place.
4. The time, place and venue of arrest/custody of an arrestee must be notified by the Police
5. The person arrested must be made aware if his right to have someone informed of his arrest or detention as soon as he is arrested or taken into custody.
6. An entry must be made in the diary at the place of detention giving all details about the relative/friend or person informed.
7. Where the arrestee so requests, he should be medically examined at the time of arrest and major or minor injuries, if any must be recorded. The ‘Inspection Memo’ should be signed both by the arrestee, the Police officer effecting arrest.
8. The arrestee should be subjected to medical examination by a qualified doctor every 48 hours during his arrest, detention or custody.
9. Copies of all documents including memo of arrest, should be sent to the Magistrate having jurisdiction, for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. A Police Control Room should be provided at all district and State headquarters, where information regarding arrest and the place of custody of the arrestee shall be communicated by the officer causing arrest within 12 hours of effecting the arrest.
The Essentials required for the commission of this tort:
1. Intentional Confinement: To form false imprisonment, there must essentially be an intention to cause an unlawful arrest, confinement or imprisonment on the part of the defendant to be held guilty. If the confinement arises out of a genuine mistake or ignorance of the circumstances, then liability for false imprisonment cannot arise. The defendant must have willfully caused the action.
2. Restraint must be total or complete in nature: Imposition of total restraint is necessary on a person’s liberty to constitute false imprisonment. By complete restraint, the objectivity highlighted upon is that the person detained must not have any means available to escape the confinement. He should not have the scope to get out of his place of arrest.
3. Confinement must take place without a lawful justification: The detention must not have a solid legal justification or any rational logic behind it, it should be entirely unlawful. If there is the presence of a reasonable cause for the detainment, then the arrest shall not amount to false imprisonment.
Case Law: Rudal Shah vs. State of Bihar, AIR 1983 SC 1086
Facts: The petitioner, an under-trial was wrongfully confined in jail for several years despite his acquittal by the Court.
Held: The High Court of Patna held that as soon as an under-trial is found not guilty by the court, he should be set free. Any detention after it shall be unlawful. The State had to pay a sum of Rs. 30,000 as compensation.
Case Law: Bhim Singh vs. State of Jammu and Kashmir, AIR 1986 SC 494
Facts: The petitioner, MLA of J&K was to participate in the Assembly meeting. His opponents in order to prevent him from attending the Assembly session got hm arrested wrongfully with the help of some executives and police. The Magistrate also granted remand to police without compliance of the mandatory requirement of production of the accused in the Magistrate’s Court before remanding him to police custody. He was released after the Assembly session got over.
Held: The Supreme Court held the State liable for wrongful arrest and detention of the petitioner and ordered a compensation of Rs. 50,000 to be paid to the petitioner.
Case Law: Mee vs. Crutshank, (1902) 86 LT 708
Facts: After his acquittal, a plaintiff was taken down to the cells and detained there for a brief period for interrogation
Held: It was a case of false imprisonment as detention post release, irrespective of the time period, brief or long is unreasonable.
Case Law: Morris vs. Winter, (1930) 1 KB 243
Facts: The plaintiff’s release from jail after completion of the tenure of his sentence was delayed by a few minutes.
Held: False imprisonment was held as not releasing a prisoner immediately after completion of jail sentence amounts to false imprisonment.
4. Knowledge of the Plaintiff: This essential is deciphered in two possible ways and differs from case to case.
In some cases, the judges have held that the person detained or wrongfully arrested must have the knowledge of the same. If he does not know that he has been held wrongfully during the tenure of his arrest, it shall not amount to false imprisonment.
Case Law: Herring vs. Boyle, (1884) 1 M&R 377
Facts: A schoolmaster wrongfully refused to permit a school boy to go to with his mother unless the mother paid an amount alleged to be due from him. The conversation between the mother and schoolmaster was held in the absence of the boy.
Held: The case was held not to be a case of false imprisonment as the boy was not cognizant of his restraint that is he did not know or was not aware of the fact that he was under detention.
However, in certain cases, it has been held that even in the absence of the person’s knowledge that he has been held in confinement, it shall still amount to false imprisonment.
Case Law: Meering vs. Grahame-white Aviation Co., (1920) 122 LT 44
Facts: The plaintiff, an employee of the defendant company on the suspicion of stealing goods was made to wait in the waiting room. The reason given to him was that he would be investigated about the theft of goods that have happened in the Office. The police which came later arrested the man. On his release, he filed a suit for false imprisonment against the defendant.
Held: False imprisonment was held inspite of the fact that the plaintiff was aware of his arrest unlike in the above case.
Other Important Factors
· Who can cause false imprisonment?
The imprisonment of a person (in this case, the plaintiff) must be caused by the defendant or his authorized agent or servant.
· Place where False Imprisonment can take place:-
The person unlawfully confined does not have to be kept arrested within the premises of a prison or a jail or a gaol exclusively. If a person is unlawfully prevented to leave his own house, this is sufficient to constitute false imprisonment.
· The period of confinement is irrelevant:-
The period of confinement of a person is not debated upon to decide liability for a false imprisonment tort. The time period may be brief or over a great length of time, is not an essential factor here. Only the act of an unlawful arrest is enough to hold a person liable for the tort of false imprisonment.
· Type of Force:-
Actual use of physical force will definitely constitute false imprisonment; however it is not the sole type of force covered under the scope and ambit of this tort. A mere threat of usage of force shall also apply. Putting up physical barriers or creating situations where it becomes impossible for a person to move with liberty are instances of false imprisonment. It is essential to mention that if a person is put in a location by another, from where it is impossible to leave without the other’s aid, in this situation, if the latter refuses to provide assistance, it shall mean that the latter wishes to cause the former’s detainment, amounting to false imprisonment. According to Richard Kidner, “Whether a person is restrained is a matter of fact, and there need not be actual physical restraint. For instance, an arrest even if executed by merely touching a person, is a restraint as it would incapacitate him to leave.
There are three main remedies that a plaintiff can avail of against the defendant in an action for the tort of false imprisonment.
1. Self Help:
By using reasonable and proportionate force, the plaintiff who is held under captivity can make attempts to free himself or herself. This is a type of extra-judicial remedy that is a sort of remedy that can be brought into use without approaching the Court of law. The use of unreasonable violence in the name of self-help shall not be held justified; it should be in accordance with the threat or force used by the defendant on the plaintiff.
2. Writ of Habeas Corpus:-
This remedy, considered to be the most appropriate in this kind of a tort is a form of legal remedy. The plaintiff can seek for the issue of the writ of habeas corpus under Article 32 of the Supreme Court of India and Article 226 of the High Court of India. This writ lays down that if a person has allegedly put under confinement a person unlawfully of without a just reason or falsely, that person must produce before the court the imprisoned or detained person. Following the presentation of the detained person in the Court, the Court shall decide whether the imprisonment is unlawful or not. If the arrest made is found to be unlawful and unreasonable, the defendant will be made liable for false imprisonment.
3. Action for Damages:-
Damages as claimed under this tort are to be assessed only during the time of confinement. This means that damages caused to a person post the confinement period cannot be granted as a remedy, but for all the injuries and damages that a person has suffered while he was kept arrested unlawfully, the victim can plead grant of damages. A person who has been falsely imprisoned can claim damages which may include damage for mental disgrace and humiliation apart from the obvious loss of liberty from the defendant. The quantum of damages varies from case to case and depends on the individual circumstances involved in the case; it is solely decided by the Court. Damages may include physical injuries, mental agony and humiliation, harm caused to reputation and medical expenses incurred in treating the injuries so caused.
Damages that are awarded are primarily of the following types:
In case of false imprisonment, where the events involve no any exceptional harm done, calls for grant of nominal damages especially in cases where the detained was unaware of his confinement.
In case of severe mental agony and sufferings like extreme fright, shame and disgrace, the court awards the above.
When false imprisonment is recklessly caused to violate human freedom by limiting or restricting the movement of people. This method of making the defendant compensate higher is with an aim to deter further actions of this kind.
Such damages are given when the false imprisonment caused is of an exceptional nature like when State’s authorities are the offenders.
Presence of malice is an important factor to decide whether punitive or exemplary damages are to be awarded instead of nominal or compensatory damages. Hence, if the facts of the case can establish existence of malice or evil motive behind imprisoning a person falsely, damages of the punitive and exemplary kind shall be awarded to the plaintiff.
Case Law: SEBASTIAN M.HONGRAY v. UNION OF INDIA, 1984 SCR (3) 544
Facts: In the Sebastian Hongray case, two persons were taken into custody by the Army authority in Manipur, but were not produced in obedience to a writ of habeas corpus and it was alleged that those persons must have met an unnatural death while in army custody.
Held: The Supreme Court directed the Union of India to pay exemplary damages for the role of the army authorities in murdering the two persons.
The defendant in order to negate the imposition of liability for causing false imprisonment must prove before the Court that the confinement done by him of another was not unlawful or unjustified. Substantive reasons must be provided to establish the imprisonment. The following are some of the defences that are available to the defendant against to prevent liability under this tort:-
1. Volenti nonfit injuria:
Consent of the opposite party is also an effective defence in the case of false imprisonment. This statement signifies that if the plaintiff gives his own consent freely without any external influence to the curtailment of his own liberty, the defendant causing it shall not be held liable for the tort of false imprisonment.
Case Law: Herd vs. Weardale Steel, Coal and Coke Co., (1915) AC 67
Facts: The plaintiff, a mine-worker descended a coal mine at 9:30am for work. He had a right to be lifted to the surface after his shift that would get over at 4pm. During work, he refused to do a certain task given to him and asked to be lifted at 11am. His employer declined to do so.
Held: Though the plaintiff was detained inside the coal mine against his will, it did not amount to false imprisonment since by the contract of service, the plaintiff had given his consent to or agreed to abide by the conditions on which he could go out of the mine. Since his contract of service stated 4pm as the time when he would come out of the mine, he was not detained wrongfully.
Case Law: Burns vs. Johnston, (1917) 2 Ireland 137
Facts: The defendant refused to unlock the factory gates to allow the workman to leave before completion of his working hours
Held: False imprisonment was not held as the workman had consented to the same.
2. Lawful imprisonment:
If it can be proved well beyond doubt, the burden of which falls on the defendant that the person was confined for a lawful cause, the complaint of false imprisonment shall fail.
Case Law: Robinson Balmain vs. New Ferry Co. Ltd., (1910) AC 295
Facts: The plaintiff entered the defendant’s wharf by paying entry fee in order to go across the river by one of the defendant’s boats. On returning there, he found that the boat had already left. He wanted to go out of the wharf. To go out, according to the rules, he was to pay again. The defendant did not permit him to go out until he paid the fee.
Held: The defendants were not liable for false imprisonment as the reason for detaining him was lawful and the fee was also reasonable.
3. Partial Restraint:
If the restraint imposed was not complete or total restraint providing the plaintiff with the opportunity and scope to escape that is if restraint is partial in nature, false imprisonment will not come into effect.
Case Law: Bird vs. Jones, (1845) 7 QB 742
Facts: In this case, a part of the public footway was wrongfully enclosed by the defendant. Seats were put up and entry was allowed to only those who paid for watching the rowing there. The plaintiff asserted his right to using that footway, climbed up the fence of the enclosure but was prevented to go forward. He remained there for half an hour.
Held: Not a case of false imprisonment as there was no total restraint and was only partial restraint since the plaintiff could have easily gone across the river using other non-enclosed part of the bridge.
4. Contributory Negligence:
When the plaintiff commits any act which amounts to contributory negligence, the defendant can plead the defence of contributory negligence.
5. Arrest by Public Authority:
Where the defendant apprehends any breach of peace or any disturbance of public tranquility from the plaintiff, he may be kept under preventive detention by the public authorities. Police and other law enforcement agencies quite often invoke this measure for maintenance of public peace.
Section 41(1) of the Criminal code of Procedure of India provides that 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 of having been so concerned. In the interest of establishing peace in society, certain authorities are empowered to detain certain class of people to prevent danger to peace in the society in certain situations; it shall not lead to false imprisonment. The above statement highlights that if a person who as observed by the defendant in all probability shall or is going to create public chaos or disturbance by way of his actions, the defendant is empowered to hold him under detainment. Charges of false imprisonment shall fail in this case.
Case Law: Dailison vs. Lafrey, (1911) AC 29
Facts: The plaintiff was arrested by the police for committing theft. According to the information received by the police, he was identified while committing theft.
Held: The plaintiff’s arrest was held lawful.
6. Parental Authority and Quasi-Parental Authority:
The parent or guardian, in exercise of their control and supervision may restrain the liberty of their children or pupil to a certain extent. The detention of minors, unsound persons by the parents or guardians from moving from certain place in their interest cannot be a false imprisonment.
A teacher in a school who obtains quasi-parental authority is also entitled to hold the child in detention against his will if it is for his own good or to prevent any harm from occurring to him. However, this authority is limited in the time span between the going and coming of the child from school. Any confinement prior or post this period shall amount to false imprisonment if the other essentials of this tort are also met.
7. Judicial Authority:
An arrest or detention of a person by a judicial authority in exercise of its judicial power is justified in law and the authority ordering the arrest shall not be liable.
The Judicial Officers Protection Act of 1850 states- No suit will lie against a judicial officer for false imprisonment or for any other tort or acts committed by him in his judicial capacity believing in good faith that he was acting within his jurisdiction.
The ministerial staffs that carry out the orders of a judicial officer also attain immunity under this. Hence, a peon executing a warrant of a court will not be sued unless the warrant is illegal and does not possess the sign and seal of the Court or did not mention the name of the person who needs to be arrested.
However, no arrest or detention should be ordered without a reasonable satisfaction reached by the Court after some preliminary inquiry as to the genuineness and bona fides of the complaint.
Case Law: Abdul Wahid vs. Tribhuwan Pati, AIR 1974 All 304
Facts: The revenue officer arrested the plaintiff and took him to the Tahsil because he had not paid arrears of land revenue and detained him for some time.
Held: False imprisonment was observed as the revenue authorities had no power to arrest the plaintiff without a warrant. Hence, in absence of a warrant, the revenue authorities superseded their authority.
8. Potential to cause harm owing to mental incapacity:
Where the plaintiff is lunatic or is suffering from some serious mental disease, he may be required to be kept in confinement to eliminate the possibility of injury or public nuisance from such a person. Confinement of a person who owing to his/her mental incapacity holds the potential to cause harm to others shall not make the defendant liable for false imprisonment.
9. Inevitable Accident:
If any person is detained due to inevitable accident, it will not amount to false imprisonment. If the confinement arises out of a genuine mistake or ignorance of the circumstances, then liability for false imprisonment cannot arise.
10. Assisting the Police:
Where the defendant was assisting the police in apprehending the offender and arrests a person in order to prevent his escape. The defendant in this case aids the police and hence is not liable.
11. Arrest by Private Person:
Section 43 of the Criminal Procedure Code of India provides that a private person may arrest any person who,
(i) In his view has committed a non-bailable and cognizable offence, or
(ii) Is a proclaimed offender.
However, without much delay, the arrested person must be handed over to a police-officer possibly in the nearest police station.
12. Self Defence:
Any other person while exercising self defence and thereby detains another it will not amount to false imprisonment.
A defence that must be implemented in India as presently available in the United States of America is the
Under this immunity, a shopkeeper may detain a person on the suspicion of shoplifting or stealing goods from the store. The period of confinement shall be reasonable and brief during which the suspect needs to be investigated and checked for stolen goods. If this defence is provided in India, then it shall benefit the shopkeepers from incurring loss arising from incidents of occasional shoplifting by customers.
However, these factors cannot be ignored in case of this privilege:
1. The shopkeeper who detains a customer must have a reasonable cause for which the arrest was done. He should have a belief that the customer might have stolen goods from his store. This belief may arise after observing the actions of the customer which can be suspicious.
2. The detained customer must be investigated instantly either in the store itself or any nearby place.
3. Only reasonable and appropriate force must be employed to arrest the person, excessive force shall again lead to liability on the shopkeeper.
4. The detention must not be beyond reasonable time required for an investigation.
5. If found guilty, the person can be handed over to the police.
6. If post investigation, the person is found not guilty, he must be released immediately, failing which charges for causing false imprisonment shall stand valid.
False Imprisonment can be defined as the imprisonment or a total restraint over a person’s liberty for some period, however brief, upon his/her liberty of movement, without sufficient lawful justification.
The restraint of the liberty of one person by another is in law an imprisonment and, if imposed without any lawful cause, constitutes false imprisonment. Hence, there must be an unlawful, illegal capture of a person disallowing his or her free movement against their will to constitute the above tort.
To conclude, false imprisonment is to put a restraint over the motion of a person entirely or to prevent his or her movement.
False imprisonment shall be said to have occurred when a human being is detained by another in the absence of the former’s consent or any prevailing authorization or justification in the eyes of law.
The act of incarceration or the method of confining a person need not be within the premises of a prison or jail, it can also take place in an open field if in that situation as well, there is an imposition or total restraint over a person’s movement by another without a just cause.
The defendant may escape liability if he is able to prove beyond any doubt in the court that the detention imposed by him on another was lawful, providing justified reasons for the same. The burden of proof hence lies on the defendant solely as put down in the case Beharilal vs. Jagarnath, AIR 1959 Patna 49. The defences as discussed above can be pleaded.
# Page 231 of ‘Law of Torts including Consumer Protection Laws and Compensation under Motor Vehicles Act’ textbook by Dr. N.V. Paranjape (publisher- Central Law Agency)
# Page 234 of The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis)
# Page 234 of The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis)
# Page 234 of The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis)
# (1994) 2 All ER 597 (CA)
# AIR 1997 SC 3017
# Pages 241-244 of Law of Torts including Consumer Protection Laws and Compensation under Motor Vehicles Act’ textbook by Dr. N.V. Paranjape (publisher- Central Law Agency
# AIR 1983 SC 1086
# AIR 1986 SC 494
# (1902) 86 LT 708
# (1930) 1 KB 243
# (1884) 1 M&R 377
# (1920) 122 LT 44
# Richard Kidner: Case Book on Torts (7th Edition 2002) para 13
# 1984 SCR (3) 544
# Pages 246-247 of Law of Torts including Consumer Protection Laws and Compensation under Motor Vehicles Act’ textbook by Dr. N.V. Paranjape (publisher- Central Law Agency), Pages 169-171 of The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher- LexisNexis), Pages 143-144 of Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection Laws’ textbook by Dr. R.K. Bangia (publisher- Allahabad Law Agency)
# (1915) AC 67
# (1917) 2 Ireland 137
# (1910) AC 295
# (1845) 7 QB 742
# (1911) AC 29
# AIR 1974 All 304