245245808 False Imprisonment Project PDF

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this is a law of trt project on false iprisonment...

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TABLE OF CASES-

SR. NO. 1 2 3 4 5 6 7 8 9 10 11

NAME OF CASE Bird v. Jones Meering v. Graham-White Aviation Co. Ltd. Herring v. Boyle Herd v. Weardale Steel Raja p. v. Naidu Bahadur v. A. Roodrappa Maharani of Naha v. Province of Madras Hussainara Khatoon(I) v. State of Bihar Raj Deo Sharma v. The State of Bihar Sebasitian M. Hongray v. Union of India Rudal Shah v. State Of Bihar Robinson v. Balmain Ferry Co Ltd

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PAGE NO. 6 8 8 9 11 11 12 12 12 12 12

RESEARCH METHODOLOGY-

AIMThe aim of this research paper is to define and understand all the features of the concept of false imprisonment as a tort.

OBJECTIVESThe objective of this paper is to cover the topics      

Definition of false imprisonment. Explanation of the tort. Conditions to prove the tort Ingredients Defenses Remedies Important cases

IMPACTThe impact of the legal concept of false imprisonment is felt everywhere as no one’s liberty can be wrongly restrained. Those who commit false imprisonment will be punished and thereby ensure there is no human rights violation.

RELEVENCEAlthough the concept of false imprisonment was introduced into the legal system many years ago, it is still extensively used as it is very important. Since false imprisonment is being committed very often even today, it’s importance can be felt greatly.

SOURCESThe sources used in the writing of this research paper are books, legal databases and internet websites.

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INTRODUCTIONFalse imprisonment is the total restraint of the liberty of a person, for, however, short a time, without lawful excuse.1 The word false means erroneous or wrong.2 Imprisonment means the restraint of a man’s liberty irrespective of the place.3 So, false imprisonment is the wrongful restraint of a man’s liberty. The tort of false imprisonment is actionable per se.4 It may also be defined as an act of the defendant which causes unlawful confinement to the plaintiff. For imprisonment it is not necessary that the person should be put behind bars, but he should be confined in such an area from where there are no possible ways of escape except the will of the person who is confining the person within that area. It is not the degree of the imprisonment that matters but it is the absence of lawful authority to justify unlawful confinement which is of relevance. If the person is unaware of a possible escape, but an escape actually exists, it will still be a case of false imprisonment.5 No man may imprison another without due process of law is a principle accepted universally and especially in all democracies.6 Article 21 of the Constitution of India has therefore envisaged and afforded protection to life and liberty of a person.7 The right to personal safety gives rise to the right of personal freedom and it contemplates and encompasses therefore the immunity not only from the actual application of force but also from detention and unauthorized restraint, which go to constitute this tort.8 Every restraint of the liberty of one person by another is in law an imprisonment and, if imposed without lawful cause, a false imprisonment which is both a criminal offence and an actionable tort.9 So, false imprisonment can either be a crime or a tort.

AS A CRIMEFalse imprisonment as a crime is in The Indian Penal Code from S. 339 to S. 348. 10 The crime can be either wrongful restraint or wrongful confinement that is S. 339 and S. 340 respectively under The Indian Penal Code.

1 JUSTICE G P SINGH, RATANLAL & DHIRAJLAL- THE LAW OF TORTS, 259, (EDITION 26) 2 Id at 1 3 (WINFIELD,JOLOWICZ), TORT, 99, (EDITION 17) 4 (SIMON DEAKIN, ANGUS JOHNSTON AND OTHERS), MARKESINIS AND DEAKIN’S TORT LAW, 424, (EDITION 5) 5 Supra note 3, 103 6 B.M.GANDHI, LAW OF TORTS, 166, (EDITION 4) 7 Id at 6 8 Id at 6, 167 9 (A. LAKSHMINATH, M. SRIDHAR), RAMASWAMY IYER’S THE LAW OF TORTS, 52, (EDITION 10) 10 http://www.legalserviceindia.com/articles/fal_torts.htm (27/08/13, 7:34pm)

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Under wrongful restraint, there is only a partial wrong and there is scope for escape. 11 However, under wrongful confinement, there is a total or complete wrong and there is no way of escape. 12 For action as a civil wrong, wrongful confinement is required.

AS A TORTAs a tort, false imprisonment is considered a trespass to person. Keeping a person confined in one area or not allowing a person to move freely is restrictive on the body of a person and hence, it is a trespass to person.

CONDITIONS TO PROVE THE TORTThere are two conditions to prove that it is a case of false imprisonment.13  

The total restraint of the liberty of a person The detention must be unlawful

Restraint- The restraint must be complete.14 There must have been restriction in all directions. 15 If the plaintiff was free to move in any direction, and was only prevented from proceeding in one particular direction, then it will not be considered as constituting the wrong of false imprisonment.16 This is seen in the landmark case of Bird v Jones.17 In Bird v Jones 18, a section of Hammersmith Bridge was temporarily fenced off. The plaintiff, who insisted on climbing over the fence to go forward, was prevented from doing so, but was told he could go back instead. The court held that he had not been falsely imprisoned and held that his attempt to move forward was a breach of the peace for which he had been lawfully arrested Unlawful- the act will be considered as false imprisonment only if the person has been wrongfully arrested. If the person has been lawfully arrested, it will not be a case of false imprisonment.

11 http://indiankanoon.org/doc/278610/ (27/08/13, 7:52pm) 12 http://indiankanoon.org/doc/1908902/ (27/08/13, 7:55pm) 13 Supra note 1, 260 14 P.S.A PILLAI, LAW OF TORT, 31, (EDITION 9) 15 Id at 14 16 Id at 14 17 Id at 14 18 Supra note 4, 425

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The detention of a person can be of two types-19  

Actual – This means that the detention involves physically laying hands upon a person. May involve the use of handcuffs. Constructive – This involves merely show of authority like a police officer or a constable. It does not involve the use of handcuffs.

LIABILITYA person may be liable for false imprisonment not only when he directly arrests or detains the plaintiff but also if he was active in promoting or causing the arrest or detention, even if he does so through the instrumentality of officers, when arrest is ordered by Magistrate on complaint, the complaint is not liable unless he actively brings about the detention.20

Arrest by public officer21 - Section 41(1) of the Code of Criminal Procedure, 1973 provides that a police officer may arrest a person who has been concerned in any cognizable offence, against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists of having been so concerned. 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.22

Arrest by private person23 - Section 43 of the Code of Criminal Procedure, 1973 provides that a private person may arrest any person who in his view has committed a non-bailable and cognizable offence or is a proclaimed offender. 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.24

INGREDIENTS OF FALSE IMPRISONMENT19 DR. AVATAR SINGH, INTRODUCTION TO LAW OF TORTS, 107, (2001 EDITION) 20 Id at 19, 108 21 Supra note 1, 265 22 GULABCHAND KANNOOLAL V. STATE OF M.P., 1982 23 Supra note 1, 272 24 GOURI PRASAD DEY V. CHARTERED BANK OF INDIA, AUSTRALIA AND CHINA, 1925

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• Period of confinement – The period for which the detention continues is immaterial if it is unlawful.25 Confinement for a very short period, say fifteen minutes is sufficient to create liability of false imprisonment. The period of confinement is generally of no relevance except in the estimation of damages. The lengthy confinement does not necessarily mean that a compensable false imprisonment has occurred. An otherwise lawful detention may become unlawful if the detention is prolonged for an unreasonable period of time. • Intention factor26 - Normally this tort of false imprisonment must be intentional. A person is not liable for false imprisonment unless his or her act is done for the purpose of imposing a confinement or with knowledge that such a confinement, to a substantial certainty will result from it. The necessary intent for the purposes of false imprisonment is the intent to confine. In order to demonstrate the necessary element of intent, the defendant must only intend to accomplish the act that causes the confinement, they need not contend that the confinement was unlawful; the defendant’s actual motives are immaterial. Malice is irrelevant to this tort. Even negligent acts causes this tort of false imprisonment for example if a person locks someone inside a room without unaware of the fact that there is someone in the room than he is held liable for false imprisonment. • Knowledge of plaintiff 27– It is not necessary that the plaintiff should have been aware of his imprisonment at the time of confinement. This is seen in the case of Meering v. GrahamWhite Aviation Co. Ltd. where the court held that knowledge was not necessary. However, it is different in the case of Herring v. Boyle in which, a mother went to pick up her son from a private school but was not allowed to until she paid the fee. The court held that the boy had not been falsely imprisoned because there was nothing to show that the plaintiff was at all cognizant of any restraint. • Place of confinement 28- The term false imprisonment is misleading in that it does not necessarily means confinement to a jail or prison. To constitute the wrong in imprisonment there needs to be no actual imprisonment in the ordinary sense- i.e. incarceration. Any confinement in the ordinary sense whether be it prison or any place used temporarily for the purpose of confinement constitutes false imprisonment. Thus an action of false imprisonment may lie due to confinement in a mental institution, hospital, nursing home or juvenile home. A mere unlawful arrest, for example amounts to false imprisonment and so does the act by which a man is prevented from leaving the place in which he is: for example a house, a motor car, or a bank. An example is the case of Bird v. Jones. DEFENCES

Consent-

25 Supra note 14, 53 26 http://www.legalserviceindia.com/articles/fal_torts.htm (28/08/13, 6:43pm) 27 Supra note 4, 425 28 Supra note 26, (28/08/13, 8:21pm)

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Although it has been denied that one may consent to unlawful restraint, on the ground that liberty is an inalienable prerogative of which no one may divest himself, it is frequently held that the consent of the plaintiff to acts which constitute an imprisonment bars the right of recovery thereof.29 Consent must be free from duress, coercion, fraud or mistake. Consent can also be implied in certain circumstances.30 In Herd v. Weardale Steel, Coal and Coke Company Ltd. , the plaintiff a minor descended to the bottom of the lift at the start of his shift but then refused to do certain work and asked to be lifted up to the surface. The plaintiff was allowed to go back to the surface at the end of the morning shift and even than he was not allowed to be taken back when all the workers of the morning shift had been taken to the surface. The plaintiff sued the defendants claiming false imprisonment. The House of Lords dismissed his claim and held that the plaintiff voluntarily took the risk that if he did not work and wanted to be taken back to the surface, than he can be made to wait. 

Contributory negligence31While there is some authority to the effect that the negligence of the plaintiff may bar recovery for the tort of false imprisonment, there is some authority that the negligence of the plaintiff in not a defense for false imprisonment. In any event the plaintiff’s contributory negligence can be proved for the mitigation of damages but it is not taken as an absolute defense for false imprisonment.

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Probable cause32It is a complete defense to actions for false imprisonment. When the probable cause is established, then the action of false imprisonment fails completely. It is said that the test for probable cause for imprisonment and arrest is an objective one, based not on the individual’s actual guilt, but upon the information of credible facts or information that would induce a person of ordinary caution to believe the accused to be guilty. A defendant who in a false imprisonment or false arrest action has established the probable cause for the alleged tort than he has no additional obligation to prove. Even malicious motives will not support a claim if probable cause is found to exist.

REMEDIESThere are three remedies for false imprisonment29 Supra note 14, 36 30 http://www.legalserviceindia.com/articles/fal_torts.htm (28/08/13, 10:23pm) 31 Id at 30 (28/08/13, 10:36pm) 32 Id at 30 (28/08/13, 10:42pm)

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  

Self help Habeas corpus Action for damages

1) Self help33 A person who is unlawfully detained may use self-help to escape including reasonable force so as to defend him from unlawful arrest. The force used must be proportionate in the circumstances. This is risky course since the power to arrest is likely to depend upon not only in the commission of offence but in the alternative, in a reasonable suspicion thereof. Hence an innocent person who forcibly resists may be liable for battery if the arrester had reasonable grounds for his suspicion. 2) Habeas corpus34 – This writ is considered to be a golden remedy by the English Law. The Supreme Court of India and High Court of states issue this writ under article 32 and 226 respectively. This is concerned with the cases of false arrest or for prolonged detention by police officers. Here the person can apply for the writ which will command him to come to the court on a certain day, stating the day and the cause of his detention and then abiding by the decision made by the court. The decision will be that either the prisoner will be released or if the detention is proved than he will be speedily produced before the court for a trial. Subject to the rules framed by the High Courts, an application for habeas corpus can be made by the person in confinement or by any person on his behalf. The writ of habeas corpus is effective means of immediate release from unlawful detention, whether in prison or private custody. 3) Action for damages35 Damages in false imprisonment are those which flow from the detention. A person injured by the conduct that is either intentional or reckless is entitled to compensatory damages and is under no duty to mitigate such damages. There is no legal rule for the assessment of the damages and this is entirely left on the court to measure damages.  Nominal and Compensatory Damages – The general rule in personal tort action is that the plaintiff is entitled to recover such a sum that shall be fair and just, in the absence of circumstances justifying an award for exemplary damages. The mere unlawful detention constitutes the basis for the recovery of at least nominal damages, but an award of only nominal damages may be insufficient and flawed where the facts proved indicate a right to greater damages. 33 Supra note 14, 36 34 Supra note 14, 36 35 Supra note 14, 36

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Punitive, Exemplary and Aggravated Damages If an imprisonment is affected recklessly, oppressively, insultingly and maliciously with a design to oppress and injure, the court may award exemplary or punitive damages. Punitive damages are awarded in cases where the defendants conduct is recklessly indifferent to the rights of others or in intentional or wanton violation of those rights, and such damages are awarded to give a deterrent. In some circumstances exemplary damages may be provided as when there is abuse of power by the state.

CASES LAWS

Raja p. v. Naidu Bahadur v. A. Roodrappa36 This is the first Indian case ever reported under false imprisonment, which is earlier than Bird v. Jones. In this case, the Raja a Zamindar having discharged certain persons for some alleged misconduct ejected them from their premises to which the Raja had no title and put them under personal restraint, seizing all the property. The aggrieved persons filed a suit. The judicial committee ordered the restoration of property and payment of compensation in damages of Rs.300 each for the unlawful restraint. The case points out that the restrain on personal liberty is a very serious affair where more than mere nominal damages that is, substantial damages may be awarded.

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Maharani of Naha v. Province of Madras37 – In this case it was decided that there was no false imprisonment because the restraint was only partial and not total. The facts were that Maharani with her daughter was awaiting the arrival of the train, in her own car placed in the railway compound fenced on three sides by the railway premises and iron fencing on one side. On arrival of the train a police sub-inspector acted on the bona-fide belief that he was to detain the Maharani not only prevented her from boarding the train but also got the gate closed and posted two constables near it.

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Hussainara Khatoon(I) v. State of Bihar38 –

In this case, it was held that speedy trial is an integral part of fundamental right of life and liberty as enshrined in Article 21of the constitution. Further it laid down norms for speedy 36 B.M.GANDHI, LAW OF TORTS, 171, (EDITION 4) 37 Id at 36 38 AIR 1979 SC 1360

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disposal of cases, after analyzing the fact that a large number of men and women had been held behind bars awaiting trial, for longer than periods that they would have to serve if their offence was proved, thereby depriving them of their freedoms.

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Raj Deo Sharma v. The State of Bihar39 – In this case, the question before the court was whether on the facts and circumstances of the case, the prosecution against the petitioner is to be quashed on the ground of delay in the conduct of trial.

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Sebasitian M. Hongray v. Union of India40 – In this 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 held that those persons must have met an unnatural death while in army custody. The Supreme Court directed the Union of India to pay exemplary damages for the action of the army authorities in murdering the two persons.

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Rudal Shah v. State Of Bihar41 – In this case, a petition arose under article 32, complaining prolonged detention of the petitioner even after his acquittal. The Supreme Court directed immediate release of the petitioner and directed the state to for the damages.

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Robinson v. Balmain Ferry Co Ltd 42– In this case, the claimant paid a penny for entry to the defendant’s wharf from which he proposed to cross the river by one of the defendant’s ferry boats. A boat had just gone and there wasn’t another one for another 20 minutes. The claimant did not wish to wait and went to the exit. There, he refused to pay another penny which was chargeable for exit, which was mentioned on a notice board, and the defendant refused to let him leave until the amount was paid. The Judicial Committee held that this was not a case of false imprisonment.

CONCLUSIONThe tort of false imprisonment is one of the most severe forms of human rights violation. Recognition of the human being in the convicted offender is necessary. The Indian socio-legal s...