TRESPASS
Trespass, in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a man’s person or to his property. The principle of ‘trespass’ was that any direct invasion of a protected interest from a positive act was actionable subject to justification. But the most obvious acts of trespass are:
(1) Trespass viet armis or Trespass to Person.
(2) Trespass quare clausum fergit or Trespass to Land.
(3) Tresspass de bonis asportatis or Trespass to Goods or Chattels.
[1] Trespass to Person
The three chief forms of trespass to person are: Assault, Battery and False Imprisonment.
(a) Battery
A ‘battery’ is “intentional and direct application of force to another person without any lawful justification”. Use of force, however, trivial, is enough; physical hurt need not be there. Least touching of another in anger is a battery (Cole v Turner 87 ER 907). Battery requires actual contact (may be indirect) with the body of another person so a seizing and laying hold of a person so as to restrain him, spitting in the face, throwing over a chair or carriage in which another person is sitting, throwing water over a person, taking a person by the collar, causing another to be medically examined against his or her will; are all held to amount to battery.
The force may be used through any object like stick, bullet, or any other missile. Infliction of heat, light, electricity, gas, odor, etc. would probably be battery if it can result in physical injury or personal discomfort (Winfield). Mere passive obstruction, Rice a door/wall, however, cannot be considered as the use of force [In Innes v Wylie (1844)1 C & K 257, a policeman unlawfully prevented the plaintiff from entering the club premises].
An unwanted kiss will be battery. However, touching a person in a friendly manner or calling his attention to something is not battery. Putting handcuffs to an under trial prisoner and then chaining him like a dangerous animal is an unjustifiable use of force. Harm which is unintentional or caused by pure accident is not actionable. Thus, where A fired at a pheasant but the pellet accidentally wounded a person, A is not liable for battery unless the A’s act is wilful or negligent.
(b) Assault
Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant (Winfield). An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act. The menacing attitude and hostile purpose go to make the assault unlawful; the actual contact is not necessary in an assault. The word assault’ is incorrectly used by laymen as meaning the actual infliction of force by one person on another such as when A beats B. Thus ‘popular assault begins when legal assault ends’.
It is also essential that there should be prima facie ability to do the harm. If the fist or the cane is shown from such a distance that the threat cannot be executed, there is no assault. Similarly, mere verbal threat is no assault unless it creates reasonable apprehension in the plaintiff’s mind that immediate force will also be used. Pointing a loaded pistol at another is an assault. If the pistol is not loaded then even it may be an assault, if pointed at such a distance that, if loaded, it may cause injury. If the plaintiff knows that the pistol is unloaded there is no assault.
Interception of a blow aimed at the plaintiff by a third person will not absolve the defendant from liability. It was so held in Stephens v Myers (1830)4 C &P 349. The plaintiff was in the chair at a parish meeting. The defendant who sat seven places away on the same table proved unruly, whereupon a resolution to eject him was passed. Then the defendant said that he would rather pull the plaintiff out of the chair, he moved towards the chair with clenched fists upon the plaintiff but he was stopped. The defendant was held liable for assault.
(c) False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification. “Every restraint of the liberty of one person by another is in law an imprisonment and, if imposed without lawful cause, constitutes a false imprisonment which is both a criminal offence and an actionable tort” (Ram Pyare Lal v Om Prakash 1977 Cr LI 1984).
The essentials required to constitute this wrong are:
(i) There should be total restraint on the liberty of a person.
(ii) It should be without any lawful justification.
To constitute this wrong ‘imprisonment’ in the ordinary sense is not required, as a person may be falsely imprisoned, viz. by being confined within the four walls or by being prevented from leaving the place where he is (that may be his own house or an open field or a bus/train).
The detention of the person may be either (a) actual, i.e. physical (laying hands upon a person), or (b) constructive, i.e. by mere show of authority (an officer telling anyone that he is wanted and making him accompany).
Total Restraint
Under criminal law, whether the restraint is total or partial, the same is actionable. When the restraint is total and a person is prevented from going out of certain circumscribed limits, the offence is that of ‘wrongful confinement’ as defined in Sec. 340, I.P.C. On the other hand, when the restraint is not total but it is only partial, and a person is prevented merely from going to a particular direction where he has a right to go, it is ‘wrongful restraint’, according to Sec. 339, I.P.C. Under civil law, the position is different. The tort of false imprisonment is constituted when there is a total restraint. It is no imprisonment if a man is prevented from going to a particular direction, but he is free to go to any other direction. In Bird v Jones (1845) 7 QB 742, a part of the public footway, as opposed to carriage way, on Hammer Smith bridge was wrongfully enclosed by the defendant. Seats were put there and entry to the enclosure was allowed only to those who made the payment to watch the rowing there. The plaintiff asserted his right of using this footway, climbed over the fence of the enclosure but was prevented to go forward. He remained there for about half an hour and subsequently brought an action for false imprisonment.
Held, that there was no false imprisonment as there was no total restraint on the plaintiff’s liberty; the plaintiff being free to go back or even to cross the bridge through the carriageway.
The total restraint results in false imprisonment, however, short its duration may be, viz. a few minutes [Mee v Cruikshank (1902)86 LT 708]. If there are unrisky ‘means of escape’ the restraint cannot be termed as total.
Knowledge of a person that he has been imprisoned is not required and a person may be imprisoned without his knowing it, e.g. while he is asleep, drunk, or unconscious. In Merring v Grahame White Aviation Co. (1920) 121 LT 44, an employee suspected of having stolen the company’s property was called to the company’s office and was asked to stay in the waiting room, one or two employees remained outside the room. It was held that the plaintiff’s detention by the company’s officers before the police had arrived was wrongful and amounted to false imprisonment.
Unlawful Detention
For false imprisonment the detention should be without any lawful justification. Making a false complaint to the police by the defendants leading to the arrest of the plaintiffs, if without any justification, will make the defendants liable for false imprisonment. A person may be liable for false imprisonment not only when he directly arrests/detains the plaintiff, but also when he was “active in promoting or causing” the arrest or detention. Bad faith is not necessary to be proved. If a police officer orders an arrest without having such a power or ‘reasonable suspicion’ he is responsible for the same. If reasonable suspicion arises subsequent to the arrest as a result of questioning the accused, the arrest and detention till that stage would be invalid. A policeman should disclose the reason for the arrest. Otherwise he will be liable for false imprisonment. Similarly, if a person is not released from jail after his acquittal but is continued to be detained thereafter, the detention cannot be considered to be lawful.
In Rudul Sah v. State of Bihar, A.I.R. 1983 S.C. 1086 the petitioner was acquitted by the Court in 1968 but was released from the jail in 1982, i.e., 14 years thereafter. The State tried to justify the detention by pleading that the detention was for the medical treatment of the petitioner for his mental imbalance. The plea was rejected. As an ancillary relief, in a writ of habeas corpus by the petitioner, a sum of Rs. 35,000 was granted as compensation as an interim measure by the Supreme Court, without precluding the petitioner from claiming further compensation.
Similarly, in Bhim Singh v. State of J. & K., A.I.R. 1986 S.C. 494. The detention was unjustified. In this case, the petitioner, an M.L.A. of the J. & K. Assembly was wrongfully detained by the police in order to prevent him from attending the Assembly session. The act of arrest was considered to be mischievous and malicious and the Supreme Court considered it to be an appropriate case for granting exemplary damages amounting to Rs. 50,000/-.
A person arrested by the orders of a judicial officer cannot sue the judicial officer for false imprisonment, unless the judicial officer acts recklessly, illegally or maliciously, i.e. cannot be said to be acting judicially [Anwar Hussain v Ajoy Kumar AIR 1965 SC 1651]. A person detained by a private individual must be quickly handed over to the police, otherwise it will amount to false imprisonment.
When detention is justified– If a man entered certain premises subject to certain reasonable conditions it is no wrong to prevent him from leaving those premises until and unless those conditions are fulfilled. Thus, not allowing a person to go until he pays reasonable charges is no false imprisonment. Similarly, when there is volenti non fit injuria on the part of the plaintiff, the defendant cannot be made liable. In Herd v. Weardale, Steel, Coal and Coke Co. Ltd., (1915) A.C. 67; the plaintiff, a workman in defendant’s colliery, descended the mine with the help of a cage in the beginning of the shift, at 9.30 a.m. Ordinarily, he would have been entitled to ascend the shaft by means of the cage at the end of the shift, at about 4.00 p.m. He and some other miners, when directed to do certain work, wrongfully refused to do the same considering that to be unsafe and at about 11.00 a.m., i.e., much before the usual time for ascending the shaft was there, they requested the foreman to allow them to ascend the shaft by means of the cage as they wished to leave the mine. Meanwhile, the cage started working but these workmen were allowed into the cage at about 1.30 p.m. and then the plaintiff was taken to the top. The plaintiff then sued the defendant for false imprisonment. It was held that there is no false imprisonment because it was a case of volenti non fit injuria in so far as the plaintiff had entered the mine knowing that the workmen would be taken out on the top at the end of the shift and he had no right to call upon the employers to make use of the cage to bring him to the surface just when he pleased.
Law permits the arrest of a person when he has committed some offence. Such arrest may be made by a magistrate, a police officer or a private individual according to the circumstances. In John Lewis & Co. v Times (1952)1 All ER 1203, the plaintiff and her daughter went to a shop, where the daughter committed theft. Both of them were detained in the office and were told to wait for managing director’s decision, where they remained for an hour. He decided to hand over them to the police. On trial the daughter was found guilty of theft, but the mother not. The mother sued for false imprisonment. The defendants were held not liable, in as much as she was not detained beyond a reasonable time for the managing director to make the decision.
Remedies
(i) Action for damages: Whenever the plaintiff has been wrongfully detained, he can always bring an action to claim damages. Compensation may be claimed not only for injury to the liberty but also for disgrace and humiliation which may be caused thereby. According to McGregor on Damages, “The details of how the damages are worked out in false imprisonment are few; generally, it is not a pecuniary loss or of dignity and the like, and is left much to the jury and their discretion. The principal heads of damage would appear to be the injury to liberty, i.e., the loss of time considered primarily from a non-pecuniary viewpoint and the injury to feeling, i.e., the indignity, mental suffering, disgrace, and humiliation with any attendant loss of social status. This will all be included in the general damages which are usually awarded in these cases.”
In an action for trespass the burden to prove justification is on the defendant Thus, in case of false imprisonment, the plaintiff is only required to prove that he was imprisoned by the defendant; he is not required to prove special damage. It is then for the defendant to prove the lawful justification for the same and it is not for the plaintiff to prove its absence. It is not necessary for the plaintiff to prove any wrongful intention, malice, negligence, etc. on the defendant’s part.
(ii) Self-help: This is the remedy which is available to a person while he is still under detention. A person is authorized to use reasonable force in order to escape from detention instead of waiting for a legal action and procuring his release thereby.
(iii) Habeas Corpus: It is a speedier remedy for procuring the release of a person wrongfully detained. Such a writ may be issued either by the Supreme Court under Article 32 or by a High Court under Article 226 of our Constitution. By this writ, the person detaining is required to produce the detained person before the Court and justify the detention. If the Court finds that the detention is without any just or reasonable ground, it will order that the person detained should be immediately released.
It is just possible that the person unlawfully detained may have been set free by the time the writ of habeas corpus is disposed of. The Courts hearing the petition may grant compensation as ancillary relief in such cases. As has been noted above that in Rudal Sah v. State of Bihar and Bhim Singh v. State of J. & K., the Supreme Court granted such compensation in writs of habeas corpus.
