False Imprisonment and Malicious Prosecution

False Imprisonment(Introduction)-

False Imprisonment is wrongfully restraining the personal liberty of the plaintiff. False Imprisonment the onus lies on the defendant of proving its existence as his justification. A person becomes liable to an action for false imprisonment by setting a ministerial officer in motion. Malice is not essential in false imprisonment. False Imprisonment refers to a total restraint of the liberty of a person without any lawful reason. The term false imprisonment refers to erroneous or wrong. The term False Imprisonment is defined under the Indian Penal Code 1860 by the term ‘’wrongful confinement’’. It is defined as,’’whoever wrongfully restrains any person in such a manner as to prevent that person in such a manner as to prevent that person from proceedings beyond certain limit is said to commit the offence of wrongful confinement/false imprisonment.

There must be total restraint for some period upon the liberty of another without sufficient legal authority. A partial obstruction of his will, as the prevention of his going in one direction or in all directions but one does not constitute an imprisonment, though compelling him to go in one direction does. For example, an armed bank robber yells at the customers to get down on the floor, threatening to shoot them if they try to leave. Since they know they might be killed or suffer serious bodily harm if they try to leave, they are being held against their will.

The Captive Bank customers may be able to claim damages, and the bank robber may be charged with the crime of false imprisonment. These crimes can be a misdemeanor or a felony depending on the circumstances. Even the police may be charged with the crime of false imprisonment. These crimes can be a misdemeanor or a felony depending on the circumstances. Even the police may be charged with false imprisonment if they exceed their authority (such as detaining someone without justification).

In fact, any person who intentionally restricts another’s freedom of movement without their consent may be liable for false imprisonment, which is both a crime and a civil wrong just like other offences including assault and battery. It can occur in a room, on the streets, or even in a moving vehicle. Similarly ‘’false arrest’’ is when someone arrests another individual without the legal authority to protect against unlawful confinement. To prove a false imprisonment claim as a tort in a civil lawsuit, the following elements must be present:

There was a willful detention.

The detention was without consent.

The detention was unlawful.

False imprisonment can come in many forms; physical force is often used, but it isn’t required. The restraint of a person may be imposed by physical barriers (such as being locked in a car) or by unreasonable duress (for example, holding someone’s valuables, with the intent to coerce them to remain at a location).

To claim false imprisonment, you must reasonably believe that you were confined; a court will determine whether the belief is reasonable by determining what a reasonable person would do or believe under similar circumstances. Additionally, the actor must have the intent to commit the confinement without the privilege to do so. For instance, shopkeepers investigating shoplifting or civilians who have witnessed a felony have necessary privilege to meet legal standards. Examples  of False Imprisonment may include-

A person locking another person in a room without their permission.

A person grabbing onto another person without their consent, and holding them so that they cannot leave .

A security guard or store owner who detains someone for an unreasonable amount of time based on their appearance.

An employer who detains someone for questioning for an unreasonable amount of time for suspected theft .

Nursing home staff who medicates a patient without their consent under physical or emotional threat .

The following examples don’t constitute false imprisonment;

A claim that you were falsely imprisoned simply because you were found innocent of a crime .

A person who grabs your arm but you know you can free yourself from his grip without fear of retaliation.

A person who closes the front door and asks you not to leave, but you know you can leave through an open side door.


Defenses to false imprisonment claims often turn on whether the person claiming the imprisonment gave consent either actual or implied or whether the person who confined another had reasonable grounds to justify the imprisonment. Below are common defenses to a false imprisonment;

Voluntary Consent

A person who consents to confinement, without duress, coercion, or fraud, may not later claim false imprisonment. Therefore, voluntary consent to confinement is often a defense to false imprisonment.

Police Privilege

In all states, police officers have the right to detain someone they have probable cause to believe has engaged in wrongdoing, or when they believe a crime has been committed.

Shopkeeper’s Privilege

Many states have laws protecting merchants from false imprisonment claims. These laws typically allow merchants to detain retail patrons for a brief period of time when they have reasonable grounds to believe that the person has committed retail theft. In many instances, a shopkeeper is limited to detaining a person to request or verify ID, make a reasonable inquiry into whether the person has purchased the merchandise, and/or to hold the person in custody until a peace officer arrives.

In determining liability, a court will look at whether the store’s actions under the circumstances were reasonable. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable

Citizen’s Arrest

In some instances, a person who is not a law enforcement official can make a ‘citizen’s arrest’  by calling for a peace officer when a crime is committed or attempted in their presence, although this defense is not meant to give citizens the right to take the place of law enforcement.

ILLUSTRATION- For instance, A causes Z to go within a walled space, and locks Z in it. A is thus prevented from proceedings in any direction on after a certain limit. A wrongfully confines Z.

CONDITIONS- In order to constitute an offence under false imprisonment, the following two essential conditions must be fulfilled-

a) There must be a total restrain of the liberty of a person. This means that the detention of the person may either be actual (by laying hands upon a person or constructive (by showing authority)

b) The detention must be unlawful in nature (illegal) . However, the period of detention or arrest is immaterial.


Bird vs. Jones

The facts of the case are such that the plaintiff wanted to climb over a bridge in order to see a boat race. The defendant pulled him back, but the plaintiff climbed. Later, the defendant stationed. Two policemen on one side of the bridge were standing in order to prevent the plaintiff from going. But the plaintiff refused. A case was filed by the plaintiff for false imprisonment against the defendant but the court held that there was no imprisonment because in order to constitute an offence of false imprisonment, there has to be total restrain and the plaintiff’s freedom of movement in all directions must be curtailed.

Maharani of Nabba vs. Province of Madras

The facts of this case are such that a sub inspector by mistake prevented Maharani of Nabba from boarding a train and also prevented her car from being taken out of the railway station. The Court held that only the liberty to go in the train was affected but there was no restrain or confinement.

Merring vs. Graham White Aviation Company Limited

The facts of the case are such that the plaintiff was suspected of stealing something from the defendant company where he was suspected of stealing something from the defendant company where he was employed. He was asked by two policemen to go out to the defendant’s office. He agreed and sat in the waiting room while the policemen remained nearby in the room. It was held that the defendant company was liable for false imprisonment because the movement of the plaintiff was curbed into the waiting room.


It is not necessary that a person be directly responsible for arresting someone but if a person promotes or causes the arrest or detention, the even that person is said to be liable.


The facts of the case are such that the plaintiff was arrested by the defendant (Governor of Bengal) on the charge that the plaintiff was guilty of stealing. The arrest was made by the defendant on the order of the Nawab of Oudh. It was held that the defendant was liable for false imprisonment.

Arrest by Police Officer

A police officer can arrest a person according to the criminal procedure. The person who is arrested has the right to know the grounds of his arrest. The person arrested should be produced before the consent area magistrate within 24 hours from the arrest. It is up to the Court’s Discretion whether to continue the arrest or release the person. But if the person arrested is still detained even after release order then it would constitute to false imprisonment. Joginder Kumar vs. State of UP . In this case the Supreme Court held that the arrest so made must be coupled with justification

Arrest by a Private Reason

Section 43 of the Code of Criminal Procedure authorizes a private person to arrest another person. There is no liability if the person is promptly handled to authorities.


Definition- Malicious Prosecution is defined as an institution of a case maliciously against another person of an unsuccessful criminal proceeding, bankruptcy proceeding or liquidation proceeding without any reasonable or probable cause.


In order to file an action before the court the plaintiff must prove the following essential conditions, in order to make out an offense of malicious prosecution.

1) The plaintiff must prove that he was prosecuted by the defendant. The two important elements involve that the plaintiff was prosecuted and the defendant was the prosecutor (There must be prosecution).

EXPLANATION- ‘’the term prosecution refers to set the law in motion (To file a case) which is done by way of filing an appeal (case) before a judicial authority (Judge). An investigation officer cannot be called a prosecutor unless he was a party to the falsity of the case. In a similar manner, pathologists who are merely preparing a post mortem report or any person who appears as a witness cannot be called as prosecutors. However, a malicious reporter to the police for getting a prosecution launched on the basis of his evidence will be covered under the definition of prosecutor.


The facts of the case are such that if a person falsely and maliciously gives information to a police officer stating that a person ‘’X’’ has committed an offense and that this person is ready and willing to give evidence in the court against X, then it is inferred that he desires and intends to name X and to prosecute him. The Court held that in such cases, if a person gives information to the police, being the real prosecutor can be made liable for malicious prosecution if all the other essential conditions are satisfied in order to constitute an offense of malicious prosecution.

2) The proceedings must terminate if they are capable of such termination. Acquittal need not be proved because a prosecution may be determined in various ways. There is one exception, that the prosecution must have terminated favorably to the plaintiff but in cases where the proceedings are ex-parted the result of such proceeding are naturally terminated unfavorably.

ILLUSTRATION- Where after facing criminal prosecution for 8 years for theft of crops, the respondent was acquitted, the prosecution was held to have been founded with an intentional wrongful act in point of fact. Compensation of Rs 10,000 was awarded to the respondent for loss of reputation and mental agony.

3) There is no reasonable or probable cause for the prosecution.

EXPLANATION- Reasonable and probable cause refers to an honest belief in the guilt of an accused person based on a full conviction which is founded upon reasonable grounds that would lead to any ordinary man to assume that the person charged of an offence is guilty of the crime.

CASE- Abrath vs. North Eastern Railway

The facts of the case are such that the judges in this case are such that the judges in this case have laid down that defendant will be deemed  had reasonable and probable cause only when-

  • He took care to be informed of the facts.
  • He honestly believed his allegations to be true.
  • Facts were such as to constitute a Prima Facie Case

The facts were such that M had received a compensation amount from North-Eastern Railways due to some personal injuries suffered by him during a railway collision. After inquiring, the officers got to know that M had conspired with one Dr Abrath in order to defraud the respondents by falsely pretending that M had been injured in the collision and by artificially manufacturing symptoms of injury. The respondents accordingly prosecuted Dr Abrath who was acquitted. In an action brought by Dr Abrath against the respondents were not liable as they took reasonable care to inform themselves of the true facts and that they honestly believed in the case laid before the magistrate.

CASE- State of Tripura vs. Ranjit Kumar Desnath

The facts of the case are such that the plaintiff was found in procession of illegal material which he was not legally authorized to keep under license. A case was instituted by the competent authority for the violation of law; hence the court held that the criminal case launched against the plaintiff was held to be not a malicious prosecution.

  • The prosecution was instituted with a malicious intention, i.e. from an indirect and improper motive.

This is one of the most essential conditions to constitute a malicious prosecution because a Mala Fide intention is important in the absence of which a case for malicious prosecution cannot be made out.

CASE- Naresh Chaturbhuj Tiwary vs. Basant Ram Chandra Kaalkar

The facts of the case are such that the Landlord (Plaintiff) filed an eviction suit against the tenant (defendant) on the ground of arrears of rent and electricity charges. Electricity was also disconnected during pendency of the eviction suit. On this, the tenant initiated simultaneous proceedings for criminal prosecution of landlord and also filed a civil proceeding for restoration of the electric supply. As soon as the electricity was restored on payment of electricity was restored on payment of electricity of electric charges, the tenant got the criminal case dismissed. Hence the prosecution was held to be not malicious.

  • That the person has suffered in personal, reputation or pocket where the proceeding is other than criminal proceedings.

The main gist of this condition is this that the prosecution must affect the person physically, emotionally and financially.

CASE- Hetram vs. Madan Gopal

The facts of the case are such that the defendant has made false allegations against the plaintiff for setting their house on fire. But this was not supported by any reasonable cause and it was actuated with malice. The Court held that the plaintiff is entitled to compensation of Rs 55,000 for mental agony, loss of future business and for litigation businesses. Hence it is a perfect case of a malicious prosecution.


CASE-Jagdish Sahai vs. Raunak Ram

The facts of the case are such that a case of forgery was filed against the plaintiff in the present case. It was observed by the trial court that the plaintiff had no involvement in forgery as the offence was committed by the Vice-President and other members of the society. There was no evidence on record to prove that the offence was committed by the plaintiff and this was further proved by the absence of an opinion of the handwriting expert or any independent witness. Hence the Court held that the plaintiff should be granted compensation/ damage of Rs 1,00,000 and be acquitted.


The burden of proving that the case is malicious in nature is always upon the plaintiff to prove that the defendant had to prosecute the plaintiff in the criminal case in a malicious manner. The onus is upon the plaintiff and not upon the defendant to prove that a case of malicious is made out.

CASE- Upinder Singh Lamba vs. Ramender Singh

It was held by the court in this matter that the burden of proving that the prosecution was malicious and that the entitlement of damages is upon the person (plaintiff) claiming the damages (acquitted/accused). He has to prove this case by leading evidence in the Court. It is important to highlight that mere acquittal in a criminal case does not at all create a presumption that he was innocent and therefore his prosecution was malicious. Without any evidence being presented by the plaintiff, the defendant could not be required to lead evidence in rebuttel.


False Imprisonment

  • False is wrongfully restraining the personal liberty of the plaintiff.
  • False Imprisonment the onus lies on the defendant of providing its existence as his justification
  • A person becomes liable to an action for false imprisonment by setting a ministerial officer in motion.
  • Malice is not essential
  • It is a tort against liberty of movement
  • Actual damage need not be proved. It is actionable per se.

Malicious Prosecution

  • Malicious Prosecution refers to wrongfully setting the criminal law in motion.
  • In Malicious Prosecution, one must prove the non-existence of reasonable and probable cause
  • Setting a Judicial Officer in motion he renders himself liable to an action for malicious prosecution
  • Malice is essential
  • It is a tort against right not to be harassed by prosecution
  • Actual damage has to be proved. It is not actionable per se

Aishwarya Says:

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Gandhiji’s role in freedom movement

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