CHAPTER 9

TRESPASS TO PERSON

1. Introduction

Any direct invasion of a protected interest from a positive act is actionable subject to justification. Those wrongs which
affect someone's personal safety and freedom is termed as 'trespass to person.' It can be committed negligently as well
as intentionally. If the invasion is direct though foreseeable or the invasion is from an omission as distinguished from a
positive act, there could not be any liability in trespass, but may be liable for some other action.

There are four forms of intentional trespass to the person as follows-

(i) assault,

(ii) battery,

(iii) mayhem, and

(iv) false imprisonment.

Assault

Define trespass to person. What are the different kinds of trespass to person?

An assault is an unlawful attempt to do a bodily or corporeal hurt to another, coupled with an apparent present ability
and intention to do the act. We can understand it better with the help of going through the observations as given in the
following cases-

Stephens v. Myers, (1830) 4 C & P 349.-In this case, the plaintiff was the chairman of a parish meeting. The
defendant was somewhat stubborn and vociferous, majority in the meeting was in favour of turning him out. On
this development the defendant said that he would rather pull the chairman out of the chair than be turned out
of the room. He, then advanced with his fist clinched towards the plaintiff, but was stopped by church warden
who sat next to the plaintiff. He was held liable for assault and Tindal, C.J. remarked:

"It is not every threat, when there is no actual personal violence, that constitutes an assault. There must
be in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be
whether the defendant was advancing at the time in a threatening attitude, to strike the chairman, so
that his blow would almost immediately have reached to the chairman, if he had not been stopped; then
though he was not near enough, at the time to have struck him, yet if he was advancing with that intent.
I think it amounts to an assault in law. If he was so advancing, that within a second or two he would
have reached the plaintiff, it seems to me it is an assault in law."

The most important factor in assault is to carry out threat into effect. Physical impact is not necessary. There should be
some reasonable apprehension of immediate injury or violence to the plaintiff.

Bavisetti Venkata Surya Rao v. Nandipati Muthayya, MANU/AP/0138/1964 : AIR 1964 AP 382.

The plaintiff was an agriculturist and Rs. 11.60 was arrear in his name of land revenue. The village munsif went to him to
collect the land revenue but he shown his inability to pay. Munsif told the plaintiff that if he becomes defaulter then his
ear-rings will be taken out and called a goldsmith. When the goldsmith came, another person who was present there,
paid the dues to the Munsif. The Court was of the view that it was not a case of assault as after the arrival of
goldsmith the defendant did not say anything or did anything to create an atmosphere of fear and physical threat to the
plaintiff.

Battery

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What is battery? Distinguish it with assault. What are the ingredients to constitute a battery?

When some force is used directly or indirectly then it is called as battery. It can also be defined as intentional
application of force against another without any lawful justification. If someone uses force in angry or revengeful manner
without lawful justification, then we may call it as 'battery'.

There are two things necessary to constitute a battery-

(a) hostile intent, and

(b) use of force.

(a) Hostile intent-Intention of defendant is essential for constituting battery. Intentional touching another person
in a hostile manner or against his will is a battery. But, if the person who is not of sound mind, his hostile act may
not be termed as battery. But, if the defendant knows what he is doing is wrong then he can't take the defence
of incapacity or lunacy.

In the case, Morris v. Marsden, (1952) 1 All ER 925, the defendant was suffering from mental disease attacked
plaintiff causing some injury to him. The defendant knew the nature and quality of act but it was not known to
him that what he was doing was wrong. In an action for damages for the tort of battery it was held that since
the defendant knew the nature and quality of his tortious act, he was liable for damages.

(b) Use of force-Unjustified use of force is another ingredient of battery. There should be some physical touching
but bodily contact is not necessary. In R. v. Cottageworth, 6 Mad 172, spitting on a man's face was held as a
battery. If in a bus or train person touches other gently, it is not a battery but if a person uses force crossing
other person in crowd, bus or train in a rude and inordinate manner then it is a case of battery.

In Pratap Daji v. B.B. & C.L. Rly., 1875 (1) Bom 52, the plaintiff entered a carriage on the defendant's railway and forgot
to purchase a ticket. At next station, when he was asked for a ticket, he refused. After sometime he was asked to get
out of the carriage again he refused at this also. Then, he was forcibly removed from the carriage. The plaintiff filed a
suit against the defendant for action then the Court observed that the use of force was justified. Since he was a
trespasser (without holding a valid ticket to travel in). Defendants were thus not held liable.

Defence against Assault & Battery

What are the defences available against assault and battery?

There are below some particular instances mentioned where defences are available against assault and battery:

(a) Expulsion of trespasser-If someone enters upon the property of another person without his permission and
doesn't leave the place even after request then he can be evicted with force as much as it is required and in
such situation the force used is justified.

(b) Lawful correction-Assault and Battery may be justified, if it is used as corrective measures. Correction of a
pupil, child or a soldier. But, the corrective measures should not be unreasonable or excessive.

(c) Retaking of Goods-If a person wrongfully takes possession of someone else's property, then the rightful
person (owner) or someone authorized to take care of owner's property may request to get his property back and
if the wrongdoer refuses to give in then the owner or authorized person may use reasonable force as he thinks fit
for the situation.

(d) Preservation of public peace-If someone is threatening the public peace or causing nuisance at public worship
place he can be checked from doing so with the help of using reasonable force.

(e) Statutory Authority-If a legal authority is performing his duty and someone comes in between and stops him
from performing his duty the person may be stopped with the use of force.

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 So, above are the exceptions against assault and battery, justifying the use of reasonable force in certain
circumstances.

Distinction between Assault and Battery

Assault Battery

· action which puts another person in instant · use of unlawful force

fear of unlawful force

· actual contact is missing · actual contact is necessary

· to throw water on someone is assault · to throw water on someone and if drops
fall on him, is battery

Mayhem or Maim

Mayhem is another form of battery, where bodily injury is of that extent that a person is weakened in fighting or in
defending himself.

Cutting off or disabling or weakening a man's hand or finger, or striking out his eyes or foretooth, or castrating him come
under the name 'mayhem'. But cutting of man's ear, nose, hair or back teeth come under battery.

False imprisonment

When a person checks someone's free movement that is movement on one's own will then it is called as false
imprisonment. It can be in an open field, house or in a street. Total restraint or total confinement of a man's liberty is
false imprisonment. There are two essential elements to hold a false imprisonment - first, there must be a total restraint
on the liberty of the plaintiff and second, it must be without any lawful justification.

Total restraint

The false imprisonment is committed when total restraint has been imposed upon someone's liberty. When a person
forces someone to be in a position against his will, for example X is on the roof-top and Y maliciously takes away the
ladder and now X has no option to get down and remains there against his will, it will tantamount to total restraint.

Knowledge of Plaintiff

A person can be held imprisoned without his knowledge. But, it is possible to hold captors liable for imprisonment, if it is
not known to the imprisoned man that he is a captive or being detained.

In Meering v. Graham White Aviation Co. Ltd., (1920) 122 LT 44, a person (plaintiff) was suspected of having stolen a
keg of varnish from the shop of employers i.e., defendants. The employer asked plaintiff to go with their policemen to
the company's office. After reaching there, he was asked to wait in the waiting room while the two policemen remained
in the neighbourhood. The defendants were held liable for false imprisonment. The defendant's plea was that the plaintiff
was free to go anywhere and he was knowing it but did not go anywhere. But, the court was not convinced and
observed that the plaintiff from the moment came under the influence of the police was no longer a freeman.

Atkin, L.J. said-"It appears to me that a person could be imprisoned without his knowing it. I think a person can be
imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic".

Partial restraint

What is partial restraint? Discuss it with the help of the case Maharani of Nabhav.Province of Madras.

In false imprisonment, there is total restraint of the liberty of a person and without justification. But, if the wrongful
restraint on the liberty of a person is partial then it doesn't come under false imprisonment.

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 In Maharani of Nabha v. Province of Madras, ILR 1942 Mad 696: (1942) 2 MLJ 14, the facts were that under government
orders, the Ex-Maharaja was restricted in his movements to the municipal limits of Kodaikanal. The Maharani was going
to Madras but the S.P. Madurai wrongly informed that the ex-Maharaja was going with his family to Madras and issued
direction to his sub-ordinates to stop Maharaja from leaving Kodaikanal. By mistake, the Sub-Inspector understood it as
to prevent Maharani from going to Madras. Maharani came with her daughter in a car to Kodaikanal railway station to
board a train for Madras. The Sub-Inspector told Maharani not to board the train for Madras and posted two police-men
near the railway compound to prevent her car from being taken out of the compound. A suit was filed by the Maharani
against the police acts. The Court observed that no wrongful confinement could be said to have taken place-

"The offences of wrongful confinement or restraint are offences affecting the human body and cannot be said to
have been committed if a person is not himself restrained or confined but the liberty of going in the conveyance
in which he wishes to go or of taking the article which he wishes to carry and without which he is not willing to
proceed is denied to him."

Detention without lawful justification

For false imprisonment, it is necessary that there should be total restraint on liberty without any lawful justification. In
Rudul Sah v. State of Bihar, MANU/SC/0380/1983 : AIR 1983 SC 1086: 1983 Cr LJ 1644: 1983 (2) SCALE 103:
MANU/SC/0380/1983 : (1983) 4 SCC 141: (1983) 3 SCR 508, the petitioner was acquitted by the court in 1968 but
released from the jail in 1982 i.e., 14 years after his acquittal from the case. The State pleaded that the petitioner
remained in jail for his treatment since he had some mental disorder. The plea of State was rejected by the Court and as
an ancillary relief, in a writ of habeas corpus by the petitioner, the Supreme Court granted a sum of Rs. 35,000 as
compensation as an interim measure without precluding the Commissioner from claiming further compensation.

In another case Kundan Lal v. Dr. Des Raj, (1954) 56 PLR 331, the SP on an application moved by the surety, cancelled
the bail bond and ordered the rearrest of the plaintiff. On SP's order, sub-inspector rearrested him. The Court held that
the SP had no power to cancel the bail bond and the order of rearrest was unlawful. Both the SP and sub-inspector
were held liable for false imprisonment.

2. Defences

There are some instances of Defences as mentioned below:

Reasonable condition

It won't be a case of false imprisonment by preventing a man from leaving the premises since he has not fulfilled
reasonable condition subject to which he entered.

In Herd v. Weardale Steel, Coal and Coke Co., 1915 AC 67, a miner descended a coal mine at 9.30 a.m. with a view of
working therein. He was entitled to get out of the mine at 4.30 p.m. On reaching there, he wrongfully refused to do
certain work and at 11 a.m. he requested to get out of the mine. But the employer refused to do so saying that lift can't
be used before

1.30 p.m. although the lift was available. The Court said that it was not the case of false imprisonment.

Judicial Authority

In our country, the Judicial Officers are protected from liability for doing a wrongful thing in the discharge of their duty
and hence a Judicial Officer cannot be sued for false imprisonment.

Section 1 of the Judicial Officer's Protection Act, 1850 says-

"No Judge, Magistrate, Collector or other person acting judicially shall be liable to be sued in any civil court for
any act done or ordered within the limits of his jurisdiction: provided that he at the time, in good faith, believed
himself to have jurisdiction to do or order the act complained of......"

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 The above provision given in the act gives a free hand to legal authorities to discharge their judicial duties within their
jurisdiction, and at the same time, the protection is given to them even if their act done or ordered found to be
erroneous irregular or even sometimes illegal. Moreover, a judicial officer while discharging his duties he stretches beyond
his jurisdiction area and if he does so in good faith believing the area within his jurisdiction would not be held liable.

Jurisdiction does not mean the power to do or order the act impugned but generally the authority of the judicial officer
to act in the matter.

But, if a judicial officer acts maliciously or knowingly acted outside his jurisdiction, then he may be held liable. (Anwar
Hussain v. Ajoy Kumar Mukherjee, MANU/SC/0374/1965 : AIR 1965 SC 1651: 1965 Cr LJ 686).

Arrest by Police

If a policeman making an arrest in execution of a judicial order notwithstanding any defect of jurisdiction by judge or
magistrate, no action will lie against the policeman.

But this protection from liability does not extend to any irregularity in the execution of the warrant and there is no
defence if the person other than the person named in the warrant is arrested, however innocent the person making the
arrest may be. If, the police officer doesn't have the arrest warrant the defence of lawful authority can't be taken. If,
some policeman is arresting a person on reasonable suspicion of any crime without any warrant then he must inform the
person of the true grounds an on which he is making an arrest and if he doesn't give the true reason then he is liable for
false imprisonment.

Arrest on complaint before a judicial officer

In Austin v. Dowling, 1870 LR 5 CP 534.-a party files a complaint before a judicial officer and the judicial officer in the
discharge of his judicial duty issues a warrant upon which the person charged is arrested, the party filing the complaint
is not liable for false imprisonment. Here, the reason given is that a man is liable for his acts or his agent's act and a
judge is no man's agent. The judge acts in his own judicial capacity/discretion.

3. Remedies

What are the remedies available against the false imprisonment?

In the case of false imprisonment following remedies are available:

Self-help-

The person who is unlawfully detained, need wait until he is released before seeking redress. Self-help is
available for him to escape.

Habeas Corpus-

Under Article 32 or 226 of the Constitution of India, a person can move to the Supreme Court or High
Court respectively for the issue of Habeas Corpus if he has been wrongfully detained. This remedy has
been provided by the Constitution for those who have been wrongfully detained. It is also possible that
the person who has been wrongfully detained may have been set free by the time the writ of Habeas
Corpus is disposed off. In this situation the Court may also grant compensation as ancillary relief. [e.g.
Rudul Sah v. State of Bihar, MANU/SC/0380/1983 : AIR 1983 SC 1086: 1983 Cr LJ 1644: 1983 (2) SCALE
103: MANU/SC/0380/1983 : (1983) 4 SCC 141: (1983) 3 SCR 508 and Bhim Singh v. State of Jammu and
Kashmir, MANU/SC/0064/1985 : AIR 1986 SC 494: 1986 Cr LJ 192: 1985 (2) SCALE 1117: (1985) 4 SCC
477: 1986 (1) UJ 458 (SC)].

In A.D.M. Jabalpur v. Shivkant Shukla, MANU/SC/0062/1976 : 1976 (2) SCC 521: AIR 1976 SC 1207: 1976 Cr LJ 945:
(1976) Supp SCR 172: 1976 (8) UJ 610 SC, it was observed that the Habeas Corpus is not available during a

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 proclamation of emergency.

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