LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More



False imprisonment, in simple terms, is the detention and restraint of a person that is not authorised by law. It is not necessary that imprisonment must be in jail. In Collins v. Wilcock (1984), false imprisonment has been defined as an act involving the unlawful imposition of constraint on another’s freedom of movement from a particular place. Thus, any confinement, be it in a common prison or a private house, is an imprisonment, and when such confinement is done without any legal authority, is called a false imprisonment. If a person is inside the house, then any attempt to prevent him from stepping out is imprisonment (Warner v. Riddiford). However, such prevention must be from all directions, that is, a person should be restrained in such a manner that he is unable to move which leads to a serious infringement of his right and liberty.

Justification of False Imprisonment

An action against false imprisonment is not punishable immediately and the question of whether the person so detaining is justified in his act or not comes into picture. There should be reasonable grounds for detaining a person without lawful justification. To prove the correctness in a false imprisonment, every officer, or as the case maybe, citizen, is answerable, and liable to an action if the arrest or detention is unlawful (Griffin v. Coleman, 1859). However, the reasonable cause of suspicion to justify an arrest is usually left to the discretion of the Courts.

Essentials of False Imprisonment

1) Intention: One of the essentials of false imprisonment is the intention of the detainer. Let’s understand this with the help of an illustration. Suppose ‘A’ is a security guard who has been assigned the duty to lock an office room once it becomes vacant after work. However, one day, suppose ‘A’, believing that everyone has left the room, locks it, not realising that ‘C’, an employee, is still inside the room. His act cannot be considered as a false imprisonment; rather he can be tried for negligence.

However, this decision is left to the discretion of the Courts as the Judges may sometimes make such persons liable for false imprisonment depending upon the circumstances. Generally, the only rule of this tort is the presence of intention, and in this context, it is irrelevant whether the intention was lawful or unlawful (R v. Governor of Brockhill Prison, 2001).

2) A complete restraint: There must be a complete restriction to hold a person guilty of false imprisonment. There can be no false imprisonment if a man can escape from another direction (Bird v. Jones, 1845). However, the person so detained must be aware of the same.For example, if a person is confined to a place which the detainer, but not the plaintiff, knows to have another way to escape, then the detainer would still be liable for false imprisonment. Therefore, knowledge of the plaintiff is important in this context because otherwise, it can serve as a best way for the wrongdoers to rescue themselves.

3) Period of confinement: The place or duration of imprisonment is generally irrelevant to make a person liable under this tort. A person may be detained in any place, from prisons to a small house. Unlawful arrests also amount to false imprisonment. The period of confinement is not really stressed on, but most probably, it must be short.


1) Damages: Damages are mostly in the form of money, and the same is determined after analysing the injury caused to the plaintiff. There is no specific legal rule laid down for the assessment of damages, and the award is based on the principles of equity and justice. While determining the damages, the mental suffering of the plaintiff is also calculated.

Bhim Singh v. State of Jammu and Kashmir (1986): In this case, Shri Bhim Singh was suspended from the Legislative Assembly on the first day of the Budget Session. The Jammu and Kashmir High Court, however, stayed the suspension order. Thereafter, the very next day, he was arrested. The arrest was said to be illegal and was held as false imprisonment. The State was directed to pay Rs. 50, 000 as damages.

2) Habeas Corpus: Habeas Corpus is considered as a golden key to release innocent persons from unlawful custody. A writ petition of Habeas Corpus can be filed under Article 32 (Supreme Court) and Article 226 (High Courts) of the Indian Constitution, to seek immediate redressal from false imprisonment.

Rudul Shah v. State of Bihar (1983): In this case, the petitioner was detained for 14 years. He filed a habeas corpus petition under Article 32 of the Indian Constitution. The Supreme Court held the detention as illegal and ordered immediate release of the petitioner.

3) Self Escape: The plaintiff is entitled to escape from the custody using self defence techniques, including the application of reasonable force. The force must be appropriate to the circumstance.


1) Consent: Consent plays an important role in proving false imprisonment. So, if the plaintiff consents to the detention, then s/he certainly loses her/his right to seek remedy therefor. However, consent must be free from any sort of undue influence, coercion, force, fraud, etc. The maxim volenti non fit injuria applies in this case. According to this maxim, if a person, after knowing the risk involved, willingly agrees to take that risk, he has no remedy in law.

2) Reasonable and Probable Cause: In Hicks v. Faulkner (1878), reasonable and probable cause has been defined as an honest belief in the guilt of the accused based upon reasonable grounds. The burden of proving the same lies on the person so detaining. On proof, the defendant can not be held liable for false imprisonment and the plaintiff gets no compensation.



In R. K. Bangia's"The Law of Torts", malicious prosecution was defined as a judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it (also refer West Bengal State Electricity Board v. Dilip Kumar Ray, 2007). In this 2007 case, the Supreme Court stated that there are two important elements of malicious prosecution: 1) the absence of a probable cause for the institution of a suit, and 2) the suit terminated, in some way, favorably to the person so accused.

When a malicious prosecution ends in favour of the accused, he may sue the prosecutor for damages under the tort law by the name "malicious process of law". In Saville v. Roberts, it was observed that an action for malicious process of law can be instituted when such malicious prosecution results in damage to a person's reputation, safety, or security. However the burden of proving the evil motive and absence of just reason lies on the plaintiff.

Essential Elements of Malicious Prosecution

1) The plaintiff must have been prosecuted by the defendant

Prosecution means a criminal proceeding against a person before the Court. Therefore, in this tort, there should be a criminal prosecution and not a civil suit. Mere police proceedings cannot be termed as prosecution. So, when the defendant had filed a complaint before the sub-inspector contending that the plaintiff had committed theft, the same was held to be not a malicious prosecution: Bolandanda Pemmayya v. Ayaradara (1966).

In Dhauji Shaw Rattanji v. Bombay Municipality (1945), it was observed that to prosecute means to set the law in motion, and the law can be said to be set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. So, mere serving of summons or departmental enquiries cannot be termed as prosecution.

In order to bring an action against the defendant for malicious prosecution, it is necessary that he must have done something more than just filing a complaint with the police. He must have been actively involved in the entire proceedings and tries his best to make sure that the plaintiff gets convicted. For instance, in T.S. Bhatta v. A.K. Bhatta (1978), the defendant lodged a complaint against the plaintiff. Thereafter, he moved the Sessions Court in revision and also appeared as a witness. He also moved a revision petition in the High Court and appeared there too. The defendant, however, knew that the charge was false and did it without reasonable and probable cause. He was held liable for malicious prosecution.

2) Absence of Reasonable and Probable Cause

As explained in Hicks v. Faulkner (1878), reasonable and probable cause means an honest belief in the guilt of the accused based upon reasonable grounds. Normally, it is the plaintiff who has to prove the absence of reasonable and probable cause but there is an exception. When the defendant claims that he has seen the plaintiff committing the crime, and if the Court acquits the plaintiff on merits, then there is a presumption that the defendant had maliciously prosecuted the plaintiff without any cause (Jogendra v. Lingraj, 1970).

3) The presence of evil motive (Malice)

The word ‘malice’ can be understood in two different aspects: malice in law and malice in fact. Malice in law denotes an act done without just cause or excuse, whereas malice in fact means the actual malice that is the presence of evil motive while committing a wrongful act. Thus, in simple words, malice means the misuse of a legal process for some improper purpose, other than that for which the legal process was intended to apply. Again, it is the plaintiff who has to prove that the defendant had acted maliciously. In a case where the defendants conspired some constables to prepare a cooked up story against the plaintiff with the mala fide intention to convict him, it was held that the defendants were liable for malicious prosecution: Abdul Majid v. HarbanshChaube (1974).

4) Damage to the plaintiff

In order to prove a malicious prosecution, the plaintiff must have suffered some damage as a result of it. The damage may be either to his person, reputation, or property. For instance, if a person is falsely charged with a criminal offence, this would obviously damage his reputation. Further, it would also cause him mental stress. The money spent to defend himself is also a damage caused. All these factors are considered while determining the damages caused to the plaintiff.

While assessing the damage caused to the plaintiff, the Court must consider the following points: 1) nature of the offence with which the plaintiff was charged, 2) the inconvenience that he had to suffer, 3) the monetary loss, and 4) the status of the prosecutor: C.M. Agarwalla v. Halar Salt and Chemical Works (1977).

5) Termination must be in favour of the plaintiff

It is one of the most essential elements of malicious prosecution that the termination of the proceedings must have ended in favour of the plaintiff. If the plaintiff gets convicted in the charge, then there is no logic in initiating the suit for malicious process of law. So, in order to prove that the termination ended in his favour, the plaintiff must show that: 1) he was acquitted by the Court, 2) if he was convicted by a lower court, then such conviction must be quashed by the Higher Court, and 3) his prosecution was discontinued or withdrawn by the defendant. No action can be brought when the prosecution is still pending before a Court.

Malicious Civil Proceedings

Generally, in malicious civil proceedings, no action can be brought against the prosecutor, even if the proceeding is malicious and without reasonable cause: Darbhangi Thakur v. Mahabir Prasad (1917). However, in exceptional cases, the plaintiff is allowed to sue the defendant for malicious abuse of civil process.

In Genu Ganapati v. BhalchandJivraj (1981), the essential requirements to succeed in a suit against malicious civil prosecution are as follows:

(1) Malice must be proved.

(2) The plaintiff must allege and prove that the defendant acted without reasonable and probable cause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.

(3) The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his/her reputation.

Maintenance: Maintenance is when the prosecutor aids a civil proceeding by providing financial support without lawful justification. This is a crime as well as a tort because of defendant's unnecessary interference with the process of law. Such acts are considered as opposed to public policy. However, maintenance is a key element for proving malicious prosecution. But when assistance is professional and provided with proper cause of action, the same is permitted. Even if the maintained proceedings are successful, the same cannot be stated as a defence and the maintainers would still be guilty (Neville v. London Express Newspapers Ltd., 1919).


1. Damages: Damages in the form of monetary compensation is the most effective remedy for malicious prosecution. It requires the plaintiff to prove that the defendant while initiating the process, was malicious and had no reasonable and probable cause.

Shiv Shanker Patel v. Smt. Phulki Bai (2007): In this case, the respondents, who had to face eight years of criminal prosecution before getting acquitted, alleged that their reputation was damaged adding to their already deteriorated mental sufferings. They were awarded Rs. 10, 000 as compensation.


1. In false imprisonment, though intention is an essential element, yet it need not be necessarily malicious. In malicious prosecution, the presence of malice or ill motive has to be proved for a successful action.
2. The imprisonment of the plaintiff is made by a private person or an authority, other than a judicial order. The imprisonment is made by an order of the Court. Say, for example, if a person files a complaint against another, and the Judge directs for detention until the matter is investigated, then such detention is not false imprisonment.
3. The burden of proof lies on the defendant who has to prove that he has the reasonable cause for imprisoning the plaintiff. The burden of proof lies on the plaintiff as he needs to prove the malicious intention of the defendant, coupled with the absence of reasonable cause.
4. The absence of reasonable and probable cause is unnecessary. The absence of reasonable and probable cause is an essential requirement.
5. In this tort, a person’s freedom of movement and right to personal liberty is violated. In this tort, a person is wrongfully subject to harassment by an unlawful prosecution.
6. It is not always necessary to prove that the plaintiff has suffered actual damages. Actual damages have to be proved which can be in the form of damage to person, reputation, property, or the like.

"Loved reading this piece by Umamageswari Maruthappan?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - Umamageswari Maruthappan 


Post a Suggestion for LCI Team
Post a Legal Query