This article is written by Gaurav Purohit, a 3rd Year BBA LL.B student of Amity University, Rajasthan.

False Imprisonment

The term False signifies wrong and Imprisonment signifies confinement or detention, so false imprisonment is the confinement of an individual with no legitimate justification. It is the complete restriction of liberty and freedom of an individual and it also violates the fundamental rights of an individual. In this act, the defendant deprives the personal liberty of the plaintiff and imposes his authority on him. False Imprisonment doesn’t require any burden of proof and it is actionable per se. The Acct of False Imprisonment is done with the intent of malice and for the fulfilment of a specific objective.

Unlawful detainment It is the biggest reason which gives rise to False Imprisonment. If the plaintiff would be able to prove that false imprisonment was done by the defendant without any lawful justification or sufficient jurisdiction then he would be held liable. There should be a complete restriction on the liberty or freedom of an individual against his will.

As indicated by Winfield, False Imprisonment is the infliction of the bodily restraint which isn’t explicitly or impliedly approved by law.

Essential Elements of False Imprisonment

Term of Confinement 

To decide the seriousness of confinement and how much compensation is to be granted for damages or injury sustained, one must look at the term of imprisonment. Indeed, even detainment which is recognized by law is extended beyond a reasonable time will be declared unlawful. If the arrested individual will not be produced before a magistrate within 24 hours of his arrest then the police are held liable for Wrongful Confinement.


The Tort of False Imprisonment is done with an aim or intention to wrongfully confine an individual for a particular reason. An intention to be malicious in the case of False Imprisonment is not required or needed. Even the False Imprisonment has been committed through omission of an act then also the person who omitted such an act would still be held liable.

Place of Confinement

Any place which is being used for confining an individual for a short or long period then it will amount to False Imprisonment as the confined person will be deprived of his liberty or freedom.

Knowledge of Plaintiff 

The knowledge of the Confinement by the plaintiff does not matter in cases of the restriction imposed by the defendant which completely deprived him of his liberty or freedom.

Defenses for False Imprisonment


Consent of the plaintiff is considered as the greatest protection which is available against the tort of false imprisonment. As per law, an individual can’t wave away their fundamental rights. Giving consent to unlawful detention or false imprisonment deprives the personal freedom and liberty of an individual.  So an individual cannot seek redressal for an act for which he has given consent. Consent can be expressed or implied but it must be free from fraud, coercion, etc.

Volenti non-fit injuria 

The maxim Volenti Non-fit Injuria implies voluntarily taking of risk. An individual who looks to restrict his freedom while acting as per the Defendant and consents to enter a premise or place that may result in his deprivation of rights and damage to him.

Lawful Manner 

The defendant should act with the due method of law and should confine an individual with a warrant as that act can be justified according to the law without a warrant.

Probable Cause  

Probable cause is another guard available to a defendant. It depends on current facts and conditions of the case to look at if the act did was of necessity or not. If the defendant proves probable cause for his action the false imprisonment will not arise. If confinement is done to support law then the defendant must give a prior Justification of his act

Valid Arrest 

No liability of the Wrong Imprisonment will occur if any detention is made under principles of the valid arrest.  

Merchant’s Advantage  

A retailer can legitimately confine an individual whenever suspected of shoplifting. The act of shoplifting must be seen by the owner. The duration of confinement will be reasonable until the police authorities arrive. Such confinement must be accomplished with the end goal of investigation.

Restriction of minor 

A minor can be restricted by his guardian if that doesn’t incur damage to the kids. Some other individuals can also detain but only if he or she has taken prior permission from the children’s guardian.

Remedies for False Imprisonment

 Actions  for Damages Sustained 

Unlawful confinement cause damages to the plaintiff. Mental agony, physical distress, loss of time and earning, The gravity of such damages is to be estimated by the court.

Nominal and Compensatory Damages 

Nominal Damages are the reward that is being granted to the plaintiff if he has been confined unlawfully. Simple unlawful confinement is adequate ground according to law to allow nominal damages to the plaintiff.

Punitive, Exemplary, and Aggravated Damages

 If  Imprisonment is planned with a malicious intention to continuously, oppressively, carelessly inflict injury to the plaintiff, punitive or exemplary damages is granted to the plaintiff. The indiscriminate conduct of the defendant is also a ground for awarding punitive and exemplary damages. 

Habeas Corpus 

Habeas corpus is a type of writ gave by the court. High court under article 32 and High court under article 226 issue the writ of habeas corpus. The essential significance of the expression habeas corpus is to bring the body or present the body in the court of the law. Utilization of this can be introduced by the plaintiff or by some other individual for his benefit that he is unlawfully confined.

Self Help

The primary guideline of criminal law is self-help. Each individual has the right to protect himself from any type of outside danger or apprehension of danger and unavoidable threat.

Right to Arrest

The right to Arrest is the right given to specific people who are directed by the law.

A Private individual could be arrested without the warrant of arrest on the following grounds

  • an individual has committed or is suspected to commit a lawful offense  
  • an individual is committing or going to commit an act that will result in a breach of interest of the public. 

In the case of a police officer, an arrest without a warrant is done on the  conditions:

  • If  an individual is suspected to commit a crime 
  • If he bound to follow the specific rule or stature  
  • If there are chances of disturbance of public welfare and peace 

Cases of False Imprisonment

  1. Bird v. Jones 

In the case, the Defendant utilized a public footway to set up seats for the spectators of the boat race. Plaintiff accepting his right to utilize that footway climbed the fencing. He was prevented by the defendant and two different gatekeepers to go toward that path however he was permitted to go the other direction. Plaintiff filed the suit for false imprisonment. It was held by the Court of Law that there was no imprisonment.

  1. Bhim Singh, Mla V.s State of Jammu and Kashmir 

In the case, Shri Bhim Singh a member of the legislative assembly was suspended on the first day of the budget session. He challenged the suspension in the high court which was on stay. The following day he was captured by the police and all the possible efforts made to know his whereabouts ended up being pointless. His wife for his benefit issued an application of writ habeas corpus in the high court to produce Bhim Singh in the court. The application was permissible in court and it was held that the confinement was unlawful and set the plaintiff free from the unlawful detainment.

Malicious Prosecution

Malicious Prosecution is considered as the malicious institution of unsuccessful criminal or bankruptcy or liquidation procedures against another without reasonable justification. This Tort balances competing standards, to be a specific opportunity that each individual ought to have in bringing the criminals to justice and the requirement for restraining false accusations against the innocent persons. It is an abuse of process of the court of law by wrongfully setting the law in motion on a criminal charge.  The establishment lies in the triangular abuse of the process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for proper reason and it also provides redress for those persons who are prosecuted without cause with malice. To be successful the party who files the suit must prove that there was a prosecution without just and reasonable reason and it was initiated by malice and the case was resolved in the favor of the plaintiff. It is necessary to prove that the damage was suffered by the plaintiff due to the result of the prosecution. 

Essential Elements of Malicious Prosecution

  1. Institution or Continuation of Legal procedures 

The Prosecution must be started by the defendant. The word prosecution signifies a procedure in the courtroom accusing an individual of a particular crime. To prosecute is to set the law in motion and law must be set in motion only by the way of an appeal to some person in clothed. The person who is to be sued is the person who has actively instrumental in putting the law in Force. The prosecution could begin when the process was issued and there could be no action when a magistrate dismisses a complaint under Section 203 of Criminal procedure Code 1973. Or the Prosecution could begin as soon as when the charge was made before the court and before the process was issued to the Accused.

2. Termination of the Prosecution in the favor of the Plaintiff

The Plaintiff must prove that the prosecution was ended in his favor. He has no right to sue before it is terminated by the court and while it is pending in the court. The Termination may be by an acquittal on the merits and findings of his innocence or maybe by the dismissal of the complaint for the technical defects or by non-prosecution. If he is convicted then he has no right to sue and he will not be allowed to prove his innocence and he cannot prove that he is wrongly convicted. Then his only remedy is to Appeal against the Conviction. And if the appeal results in the favor of the plaintiff then he can sue for malicious prosecution. There is no need for the plaintiff to prove his innocence as a separate issue.

3. Absence of Reasonable and Probable Cause 

It is an honest belief in the guilt of the person who is accused which is based on full conviction and it is founded on reasonable grounds of the existence of circumstances which assuming them to be true would reasonably lead any ordinary man and cautious man in place of accuser would believe that person who is accused was probably of the crime which was imputed on him.  As set down in Hicks v. Faulkner there must be: 

i. An honest belief of the accuser in the guilt of the accused.

ii. Such belief should be based on an honest conviction of the presence of conditions which led the accuser  

iii. Such belief which is  based on some reasonable grounds as would lead any fairly cautious man in place of the defendant to believe so

iv. The conditions so accepted and relied on by the accuser must be on reasonable grounds.,. The plaintiff must show that there was no reasonable and probable justification for the prosecution of the case.

4. Malice

Malice for malicious prosecution implies having some other intention or motive apart from that of bringing an offender to justice. Spite and ill will a are adequate however not necessary conditions of malice. Anger and revenge can be proper motives if they are channelized into the Criminal Justice System.  The absence of a goal and reasonable cause is not proof or evidence of malice. In Allen v. Flood, a general guideline was propounded that an act which is legal in itself doesn’t simply become unlawful due to the bad motives of the actor and some jurists also recommended that malicious prosecution was not an exception to this rule.  The settled rule is that malice is the essence of the action for malicious prosecution and it must be proved to the plaintiff. The Burden of proof of the existence of malice is always on Plaintiff. 

Evidence of Malice 

There is a possibility that malice may be either at the starting of the prosecution or during the continued prosecution. The fact that Criminal prosecution which resulted in acquittal or discharge of the accused will not establish that the Defendant had acted with malice. 

5. Damages

Plaintiff has to prove that he has suffered damages as a result of the prosecution complaint.  Even if The proceeding terminates in favor of the plaintiff then also he may suffer damages as a result of the prosecution. The damages may or may not be monetary in nature. In Savile Vs Robert There can be 3 types of damages which can prove the action of malicious prosecution

1) The harm or damage to a man’s respect or fame as where the issue whereof he is accused is scandalous  

2) The harm or damage is done to an individual as to where man is put to a danger of losing his life, limb, or liberty

3) The harm or damage to a man’s property as where is compelled to expend cash in important charges, to acquit himself of the offense of which he is accused.

The harm should be the reasonable and probable consequence of malicious prosecution and it should not be too remote In evaluating damages the court  would need to consider: 

1) The nature of the offense the plaintiff was charged with

2) The inconvenience of the plaintiff

3) Monetary Loss 

4) The status and prosecution of the individual prosecute

Cases of Malicious Prosecution

  1. In the Kamta Prasad v National Buildings Constructions Corporation Pvt Ltd. The official of the respondent corporation found certain articles missing while at the same time while he was preparing an inventory and checking the stock register. The plaintiff was prosecuted under sec. 403 of the I.P.C. in any case, was given the benefit of doubt and hence he was acquitted. Then he brought an action for malicious prosecution. However, he was unable to prove that he was harassed by the officers.  There was held to be the sensible and probable reason for prosecution of the plaintiff and the fact that the plaintiff was not harassed shown that there was no malice and henceforth the charge was not held.
  1. In Girija Prasad v Uma Shankar Pathak the plaintiff was an advocate who was practising at Panna in Madhya Pradesh . he was also a leader of Jan Sangh and had begun an agitation on the topic of food shortage in the city and one Jan Sangh worker had gone on a hunger strike. Girija Singh a sub-inspector was deputed outside the collect-orate to control the group that had gathered there to support the agitation. There were some shots of the bullet from the gun of the sub-inspector. He expressed that while he was fighting with some individual who was attacking him the pistol got fired mistakenly. Girija Singh had lodged an FIR expressing that he was attacked by some person. his watch grabbed and the plaintiff Uma Shankar Pathak was present at the scene and was inciting the group against him. The investigation of the court took place and the plaintiff got arrested and then released on bail after a few days. He was later acquitted. The Plaintiff sued 4 people for  Malicious Prosecution, the sub-inspector Girija Prasad who had lodged the F.I.R., the S.H.O. of that territory who entertained the report, and two different people associated with the case.

It was found out by the M.P. High court that the report which was prepared by Girija Prasad was false and at that important time party was absent there however was appearing up in front of  Justice Verma. Afterward, Girija Prasad was held liable for the  Malicious Prosecution while others were acquitted of the charge and not held liable for the Malicious Prosecution.


It very well may be presumed that the term False Imprisonment is the unlawful confinement of the plaintiff in a restricted zone from where there is no means of escaping from that area or zone is available. An Act of False Imprisonment is always actionable per se. With the infringement of fundamental rights because of unlawful confinement and the brutal and inhuman treatment, it is essential for the laws relating to false imprisonment to be more solid and efficient, and effective.

 Malicious prosecution is the abuse and abuse of procedure of court by wrongfully setting the law in motion on criminal charges. If an effort to disturb the proper functioning of the machinery of Justice. This tort is the need for restraining false accusations against an innocent person. Malice may be proved by unreasonable and improper conduct like getting up false evidence.


  • B.M. Gandhi, Law of Torts 165 (Eastern Book Company, Lucknow, 3rd ed., 2006).
  • Ratanlal & Dhirajlal, the Law of Torts 331 (Wadhwa & Company, Nagpur, 25th ed., 2006).
  • R.K. Bangia, The Law of Torts 209 (Allahabad Law Agency, Haryana, 23rd ed., Reprint, 2014).

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