Difference between false imprisonment and malicious prosecution

This article is written by Sahil Arora. This article talks about the difference between two concepts that violate or restrict the movement of a person by means of confinement, restraint, detaining, or arrest. Although these terms seem synonymous, this article will let you know the actual difference between the two.

It has been published by Rachit Garg.

Article 21 of the Indian Constitution, 1950 which guarantees protection to the life of a person, also ensures that no person is restrained, detained, or confined unlawfully. Every person has a right to live and enjoy his life freely and no one has the authority to stop him from enjoying his life unless his own rights are not affected by that enjoyment. But if somebody tries to interfere in someone’s life by detaining or confining him, it will be considered a wrongful act for which that person can be charged both under criminal law as well as under the law of torts. Apart from it, Article 19 of the Indian Constitution is also a provision that gives freedom to the people to move freely throughout the country and if someone interferes with this right, he can be punished. This interference can take various forms and two of them under which people are often confused are ‘false imprisonment’ and ‘malicious prosecution’. Although these acts are not always punishable. In many cases and branches of the law of torts like false imprisonment and malicious prosecution, the state of mind of a person is relevant to ascertain his liability. It varies from case to case as to check whether a specific wrongful act was done maliciously or intentionally. These terms seem to be similar but have a huge difference, which will be discussed in detail in this article.

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Meaning of false imprisonment

Breaking this term into two parts, the term “false” means ‘wrong or unlawful’ and “imprisonment” means ‘confinement or detention’. Thus, the term ‘false imprisonment’, refers to the unlawful and intentional confinement or restraint of an individual against their will and without any lawful justification or authority.

According to the Black’s Law Dictionary, “false imprisonment is the restraint of a person in a bounded area without justification or consent. False imprisonment can apply to private or governmental detention. It is punishable under criminal law and tort law.” 

In Winfield’s Tort Law, false imprisonment is elucidated as the deliberate and direct obstruction of an individual’s freedom of movement without a valid legal excuse.

In simple terms, it means the deprivation of a person’s freedom of movement, either by putting fear or coercion or through some physical obstructions. From a legal point of view, Section 339 of the Indian Penal Code (IPC), 1860, which talks about ‘wrongful restraint’, and Section 340 of the IPC, which talks about ‘wrongful confinement’ are also considered part of false imprisonment.

Section 339 basically revolves around two points that are, first, there should be voluntary obstruction of a person and second, the obstruction must be such as to prevent the person from proceeding in any direction in which he has a right to proceed. The obstruction can be caused either by physical force or by the use of threats, thus, the method used for the obstruction is immaterial. The restraint here implies abridgment of the liberty of a person against his will but this is only partial restraint of the personal liberty of a man. 

Coming to Section 340, it also revolves around two important elements that are, first, there must be wrongful restraint of a person and second, such restraint must prevent that person from proceeding beyond certain circumscribing limits. In this case, there must be a total restraint of the personal liberty of a person and not merely a partial restraint, like in case of false imprisonment, to constitute confinement. Although the time period of confinement is immaterial to constitute this offence, it becomes relevant to determine the extent of punishment.

Apart from all this, depriving an individual of their personal freedom without lawful justification, constitutes an offence for which the law not only establishes a punishment as a public crime but also offers a means for the injured party to seek compensation by means of a writ of habeas corpus, thereby securing their release from immediate confinement. Additionally, the wrongdoer may be subject to a legal suit, commonly known as an action of false imprisonment, in order to compensate the victim for the loss of time and liberty incurred as a result of the unlawful act.

Meaning of malicious prosecution

Breaking this term into two parts, the term “malice” means ‘wish or desire to hurt someone’ and “prosecution” means ‘charging somebody with a crime’.

According to Black’s Law Dictionary, “malicious prosecution is a legal proceeding that is initiated without probable cause and with harmful intent. It is also known as ‘abuse of process’.”

According to Prosser and Keeton in their book on Torts, ‘malicious prosecution’ is characterised as the pursuit or continuation of an unfounded criminal or civil lawsuit with malicious intent and without reasonable grounds, resulting in harm and injury to the plaintiff.

So, elaborating it, this means the deliberate act of commencing or continuing a civil or criminal proceeding against an individual without any probable cause and with an intention to cause harm, harassment, or inconvenience to the person who is falsely accused. Under Section 35 of the Civil Procedure Code (CPC), 1908, compensation can be claimed for this offence, and under Section 211 of the IPC, a false charge of an offence which is made with intent to injure is made an offence. Thus, these are some provisions of the law which are governed under the ambit of malicious prosecution.

Section 35 of the CPC basically talks about the general costs which are awarded to the litigant to secure him the expenses incurred by him in the litigation. It neither enables the successful party to make any profit out of it nor punishes the opposite party. The court can exercise this power even if it doesn’t have the jurisdiction to try the suit.

Elaborating the Section 211 of the IPC, it constitutes that, firstly, the accused must initiate a criminal proceeding or make a false charge, secondly, he knows that there is no legal ground for the proceeding and thirdly, he must have the intent to cause harm to the person he’s accusing. Malice and knowledge in the falsity of information furnished are essential elements of this offence. Malicious prosecution distinguishes itself from wrongful arrest and detention by placing the burden of proving the prosecutor’s lack of honesty or reasonableness on the accused individual (Dallison v. Caffery (1961) D. No. 1575).

Not only a natural person, but an artificial person, like a corporation, could be held liable for the offence of malicious prosecution. This is because even though the corporation may not have the requisite mental element for a tort requiring malice, the agents of that corporation are capable of having the same. Thus, if the act is done by the agents in the course of their employment, a corporation will be held liable for their act just like an ordinary employer. 

Essential ingredients of false imprisonment

  1. Intention

The defendant to be declared guilty of this offence must wrongfully confine or restrain the plaintiff with an intention to cause harm or injury. Such an act of restraint done but without the required intention cannot be considered to be false imprisonment and thus cannot be made guilty under this offence. Although an intention to be malicious is not needed in this case.

  1. Complete deprivation of liberty

Imprisonment of a person means restraining the liberty to move or go somewhere wherever and whenever the person wants. This restraint doesn’t need to be behind bars only. This can be at any place where the plaintiff is unable to find a way to move freely but this imprisonment should be complete, i.e., if there is at least one way by which the person can escape that place, then it will not be considered imprisonment.   

  1. Knowledge of restraint to the plaintiff

The plaintiff must show that he was unlawfully confined or restrained against his will but it is not necessary that he was also aware of the confinement or restraint to establish the claim of false imprisonment. It mainly depends upon the actions and intentions of the defendant rather than the knowledge or awareness of the plaintiff. 

  1. Time of confinement

It doesn’t matter how short or long the person is imprisoned to make him liable for the offence of false imprisonment. Although the time duration is relevant to consider the seriousness and gravity of the offence, it is also considered while calculating the amount of damages to be claimed.   

  1. Detention must be unlawful

Under certain laws, power is conferred on some officials, like police officers or officers of higher authority like the Enforcement Directorate (ED), or the Central Bureau of Investigation (CBI), etc., to imprison someone if it is found to be necessary. Thus, if a person is confined or detained in pursuance of power or in accordance with the law, then that cannot be considered false imprisonment. But contrary to this, if a person is imprisoned unlawfully, then that person, once released, can claim relief against that unlawful detention.  


  1. After a disagreement over a bill, a hotelier chose to detain a guest. Even though the guest cooperated by providing personal information, he was still kept detained. It was determined to be a case of false imprisonment.   
  2. X was working inside the godown when Y locked him from outside. Y didn’t know that X was inside it. Thus, as there was no intention on the part of Y to confine X, it cannot be considered a case of false imprisonment. 

Essential ingredients of malicious prosecution

  1. Absence of reasonable and probable cause

The onus is on the plaintiff to show that there was no probable and reasonable cause behind the imprisonment and that it was done to cause him harm or injury, either physical or mental. This has to be ascertained by the judge whether there was a reasonable cause or not, and a mere fact that the plaintiff considers its absence cannot per se be declared to be the absence of such a cause. This means it is a subjective element.      

  1. Malice in prosecution

The prosecution must be instituted by the defendant with a malicious motive or ill will. Although there’s no straight-jacket formula to label a thing as malice, it will vary from case to case to determine whether such an act of the defendant constitutes malice or not. Again, it is the plaintiff on whom the burden of proof lies to prove that there was malice in the prosecution. The malice in the act of the defendant can be determined by the conduct of the defendant itself apart from other existing factors.  

  1. Prosecution by the defendant

It is necessary for making a case of malicious prosecution that the proceedings were instituted by the defendant. This could be in several forms like a complaint, information, or any other legal instrument that starts a legal action. But a point is to keep in mind that if the complaint or like is filed by the defendant and no steps or action are taken upon that complaint, then the opposite party (plaintiff) has no right to file a case or sue the defendant for malicious prosecution. 

  1. Termination of proceedings in favour of the plaintiff

To bring a case for malicious prosecution, it is necessary that the plaintiff be acquitted of the earlier case instituted by the defendant against him. Once the plaintiff is declared not guilty, only then he can institute a suit under this offence; otherwise, if the plaintiff is held liable, he has no other option but to appeal to a higher court and get a clean chit, after which he can bring the suit against the defendant. 

  1. Plaintiff to suffer damage

Even if the plaintiff is acquitted in the case filed by the defendant, he still has a right to claim damages from the defendant. The plaintiff need not have suffered in monetary terms only; it can be psychological suffering or damage to the reputation as well. The damage must be related only to the malicious prosecution and not any remote action.  


Criminal litigation
  1. The defendant lodged a frivolous complaint against the tree cutting, despite being aware of its false nature. The court inferred malicious intention with other elements.  
  2. C filed a complaint against D for theft of his mobile phone genuinely believing that D was responsible for the theft as according to him he (C) saw D near the place of theft. But after investigation, it was found that D was not there at that time. So, even after D was acquitted, he cannot file a case for malicious prosecution because there was reasonable suspicion on the part of C and no malice.

Defence against false imprisonment

  1. Consent

A consent that is free from any sort of fraud or coercion is considered a valid defence against this offence. Thus, if the victim himself agreed to the confinement or restraint, later on, he cannot claim relief from the defendant. So, voluntary consent to false imprisonment often acts as a defence in this case.

  1. Lawful authority

If an individual is detained, confined, or arrested under the authority of law, then that person cannot bring a case of false imprisonment, and the person or official who detained, confined, or arrested him can claim it as a valid defence. The point which is to be kept in mind while claiming this defence is that the person using it must have a legal right or authority to restrict the movement of the alleged victim.

  1. Necessity or/and justification

If the defendant proves that it was necessary to confine the plaintiff so as to protect oneself or others or there was some other emergency situation, then it can be taken as a defence and the defendant can escape the charges of this offence of false imprisonment. 

  1. Probable cause

This element of defence is an objective one that does not rely on the crime committed by the individuals but on reliable facts or information that would prompt a reasonable person to take the necessary precautions as if they were the perpetrator.

  1. Restriction on minor

A person who has custody of the minor or is authorized by the guardian of the minor can, for the benefit of the minor, restrain him from going outside a specific area. As this is done for the benefit of the minor, so this can be claimed as a valid defence, and no case can be made against him under this offence.  

  1. Partial restraint

A person is considered to be under false imprisonment when he is completely deprived of this liberty to move or go somewhere, but if an individual is only restrained partially, then that person cannot make a case under this because in this case he would be having enough opportunity to move or escape the place. However, some courts have still considered that partial deprivation of personal liberty is deprivation and made it fall under false imprisonment and claimed compensation.

Defence against malicious prosecution

  1. Lack of malice or ulterior motive

One of the most essential elements of this offence is the presence of malice, but if the defendant proves that there was no malicious intention in his mind or there was a legitimate reason to believe that the legal action was justified at the time it was initiated, then the defendant could use this as a defence and escape his liability. 

  1. Lack of causation

If there is more than one individual responsible for the prosecution and the defendant shows that his actions did not cause or significantly contribute to the initiation of the legal proceedings, then this can act as a valid defence for this offence.

  1. Statutory immunity

Just as in the case of false imprisonment, here also there are some legal provisions like Section 197 of the Code of Criminal Procedure (CrPC), 1973 or Section 132 of the Negotiable Instruments Act (NIA), 1881 which provide immunity to some people from the malicious prosecution claims. These could include public officials, witnesses, or parties who report suspected criminal activity in good faith who are protected against the claims of malicious prosecution. 

  1. Good faith

If the defendant is able to prove that his actions were carried out in good faith and that he genuinely believed in the legality of their course of action, it can undermine the allegation of malicious intent. This defence highlights the defendant’s honest belief in the guilt of the accused individual based on the evidence or information that was available at the time.

Remedies against false imprisonment

  1. Damages

Injury of any sort, whether physical or mental, to the plaintiff is sufficient to constitute this offence. Thus, to compensate for this injury the plaintiff can ask for damages. There are a few kinds of damages such as punitive, exemplary, aggravated as well as nominal, and the quantum of damages will depend upon the gravity of the injury. It is the judge who will decide what is just for the plaintiff. Although no amount of damages can really undo the mischief, but the only way open to the Court to uphold the rights of the plaintiff and express its disapproval of the conduct of the defendants is to award monetary compensation by way of damages. Such damages cannot be nominal, but must be substantial. (Ram Pyare Lal v. Om Parkash, ILR (1977)).  

  1. Habeas corpus

Out of the five writs provided by the Indian Constitution under Article 32 by the Supreme Court and Article 226 by the High Court, this writ of habeas corpus is the one that provides the presentation of the detainee or arrested person before the court. This writ is mainly used when a person is unlawfully detained or kept in confinement and his rights and freedoms are violated. This writ can be filed by either the plaintiff or someone else on his behalf for his release from the imprisonment. 

  1. Complaint to NHRC

As imprisonment is considered a violation of human rights, one can file a complaint with the National Human Rights Commission (NHRC). The NHRC investigates cases where there is a violation of human rights and provides justice to the individual. Apart from it, there are some self-help groups also which work on the same objective.

Remedies against malicious prosecution

  1. Compensation

Just like the remedy in the case of false imprisonment, similar relief of compensation can be claimed against this offence also in return for the harm suffered by the plaintiff. The person who was prosecuted wrongfully can file a suit for compensation and the amount will be determined as per the level of injury he suffered.  

  1. Writ jurisdiction

The infringement of fundamental rights through this malicious or wrongful prosecution can be cured by filing appropriate writs and claiming appropriate relief. Article 32 and Article 226 of the Indian Constitution provide these remedies to the victim, which could be used against the perpetrator and in return provide some satisfaction to oneself.

  1. Criminal law remedy

There are several provisions in the IPC and CrPC under which an unauthorised prosecution can be punished if proved. A request can be made to the appropriate government to take action against the concerned official because only acquitting the victim is not sufficient relief and the victim deserves to get complete justice.

Characteristic There is total restraint on personal liberty without lawful justification. There is the element of causing damage by means of an abuse of the process of court.
Actual damage The actual damage need not be proven. The actual damage has to be proved.
The onus of proving reasonable cause The onus of proving the existence of probable and reasonable cause as justification lies on the defendant.  In this case, the plaintiff is to allege and prove affirmatively its non-existence.
Actionable per se  It is actionable per se. It is not actionable per se.
Proving malice It is not necessary to prove malice. It is necessary to prove malice.
Mistake as defence A mistake of fact would not be a good defence. A mistake may be a good defence.
Presence of reasonable cause It is not necessary that there be an absence of a reasonable or probable cause. It must be proved that the criminal proceedings were made without reasonable and probable cause.

Landmark case laws on false imprisonment

  1. Ishwar Das Moolrajani v. Union of India (2016)

This is a legal dispute involving Ishwar Das Moolrajani and the Union of India. The case revolves around a requirement imposed by the High Court of Rajasthan that Moolrajani submit Rs.4.5 crores as bail. Moolrajani argues that his arrest was unlawful and seeks bail through a Habeas Corpus Petition. In response, the Union of India appeals, questioning the petition’s validity and the legality of the arrest.

The Supreme Court temporarily suspends the bail condition. The Union of India argues that the case is now irrelevant, but the Supreme Court is not satisfied with their explanation for failing to pursue criminal charges against Moolrajani. As a result, the Supreme Court orders the Central Bureau of Investigation (CBI) to probe the absence of action taken against Moolrajani for alleged violations of customs laws.

In its final decision, the Supreme Court allowed Moolrajanni’s appeal, quashing the High Court’s conditions and dismissed the Union of India’s appeal and also instructed the CBI to investigate the matter further.

  1. Bhim Singh v. State of Jammu and Kashmir (1985)

This is a landmark case in which the Supreme Court set forth clear guidelines emphasising the importance of providing immediate and sufficient compensation to individuals who have been falsely imprisoned, as this constitutes a violation of their fundamental rights.

In the year 1985, Shri Bhim Singh, who was a Member of the Legislative Assembly in Jammu & Kashmir, faced suspension from the assembly and consequent arrest while en route to a legislative session due to allegations of delivering an inflammatory speech. However, discrepancies were found in the affidavits of the police officers regarding the arrest and remand process. It became evident that Bhim Singh was not presented before the magistrate as required by law. The court determined that Bhim Singh’s constitutional rights had been violated, and he had been unlawfully detained. Although he was eventually released, the court ordered the State of Jammu and Kashmir to compensate him with Rs. 50,000 as redress for the infringement of his rights.    

  1. Sunil Batra v. Delhi Administration (1978)

In this case, the Supreme Court held that unlawful detention by prison authorities would amount to false imprisonment and would be a violation of the fundamental right to life and personal liberty.

This legal case revolves around the detention of a young advocate by the police. Initially summoned for questioning, the petitioner eventually finds himself in custody without a clear explanation. Fears about the petitioner’s safety prompt the initiation of legal proceedings, resulting in the court ordering an inquiry. Here, the delicate balance between individual rights and the needs of law enforcement is emphasised, with an emphasis on the necessity of safeguarding both. Furthermore, the court took reference reports from the National Police Commission, which shed light on problems related to unnecessary arrests. In conclusion, the court lays out the requirements for protecting the rights of arrested individuals, including the right to notify someone of their arrest and the right to consult with a lawyer. Ultimately, it underscores the importance of adhering to proper arrest procedures and respecting human rights during law enforcement activities in India. 

Landmark case laws on malicious prosecution

  1. Hussainara Khatoon v. Home Secretary, State of Bihar (1980)

In this landmark case, the Supreme Court dealt with the issue of prolonged and unjustified imprisonment. The court held that the right to a speedy trial is an essential part of the right to life and personal liberty, and the failure to provide a speedy trial could attract a claim of malicious prosecution.

In this court order, Justice Bhagwati addresses a writ petition concerning the conditions and rights of prisoners awaiting trial in jails in the state of Bihar, India. The court orders the state to provide an updated record categorizing the prisoners by their offences, distinguishing between minor and major crimes. The court emphasizes the need to relocate women under “protective custody” to welfare institutions. Additionally, it underscores the importance of offering free legal assistance to impoverished defendants and ensuring an efficient processing of bail applications. Moreover, the court expresses apprehension regarding the extended detention of under-trial prisoners and instructs the state to release those who have been held for durations exceeding their possible sentences. The order stresses the significance of establishing a comprehensive legal service program to facilitate equal access to justice and expedite trials, while underlining the state’s constitutional duty to safeguard these rights.

  1. M. Abubaker & Ors. v. Abdul Kareem (2021)

In this case, the plaintiff was arrested and detained for over 24 hours after being falsely implicated in a criminal case. After he got acquitted, he demanded compensation for malicious prosecution against which the defendant argued that the prosecution was not malicious and that they had a reasonable cause for their actions. The court considered the evidence presented and came to the conclusion that the plaintiff was entitled for compensation for damages, including the loss of reputation and liberty. 

  1. Haryana Financial Corporation v. Jagdamba Oil Mills (2002)

The Supreme Court in this case held that an action for malicious prosecution can only be brought against a person who was directly or indirectly involved in initiating the criminal proceedings. An action cannot be filed against the state or its officials unless malice on their part is established.  

  1. Vidhyadhar Sunda v. State of Rajasthan & Ors. (2010)

In this case, the Rajasthan High Court held that in a malicious prosecution claim, the plaintiff must prove that the defendant knowingly made false statements or fabricated evidence to initiate the criminal proceedings. A mere lack of evidence against the plaintiff does not establish malice or the absence of probable cause.

So, after all this discussion, we can say that although both of these offences seem alike on a superficial level, if we look deeply, there are some differences. The end of both of them is a violation of the rights of individuals but there are some remedies also available which a person can use to protect himself and others from the acts of the wrongdoer. At last, as there is no direct mention of both of these offences, i.e., false imprisonment and malicious prosecution, under any law, and both of these offences have a few points of similarity also, so they both are to be understood and differentiated clearly to safeguard oneself.

What is the difference between false imprisonment and malicious prosecution?

‘False imprisonment’ refers to the unlawful and intentional confinement or restraint of an individual against their will and without any lawful justification or authority and ‘malicious prosecution’ means the deliberate act of commencing or continuing a civil or criminal proceeding against an individual without any probable cause and with an intention to cause harm, harass, or inconvenience the person who is falsely accused. 

Which rights are violated by the offences of false imprisonment and malicious prosecution?

These offences violate a few human rights as well as some fundamental rights of our Indian Constitution such as Article 19(1)(g) and Article 21.

What is the difference between wrongful confinement and wrongful restraint?

  • Wrongful confinement is the absolute restraint of personal liberty whereas wrongful restraint is only partial restraint of the personal liberty of a person.
  • In wrongful confinement, certain circumscribing limits are always necessary whereas in wrongful restraint, no such limits are required.
  • In wrongful confinement, movement in all directions is obstructed but in wrongful restraint, movement in only one or some direction is obstructed.
  • Wrongful confinement implies wrongful restraint but vice-versa is not correct.

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