Difference between False imprisonment and Malicious Prosecution

The main points of distinction between false imprisonment and malicious prosecution are:

(i) False imprisonment is wrongfully restraining the personal liberty of the plaintiff, malicious prosecution is wrongfully setting the criminal law against him,

(ii) In false imprisonment it is the act of the defendant itself or its agent which has caused he injury to the plaintiff; in malicious prosecution it is the act of the Court, although at the instance of the defendant which has caused the injury complained of to the plaintiff.

(iii) In false imprisonment the personal liberty of the plaintiff is wrongfully restrained by the private individual either personally or by setting a ministerial officer in motion, while in malicious prosecution the arrest is secured under judicial sanction. The question whether a person is liable for imprisonment or malicious prosecution often turns upon the question whether the defendant has set a ministerial or judicial officer in motion.

(iv) In false imprisonment the onus lies on the defendant to plead and prove affirmatively the existence of reasonable and probable cause as justification whereas in action for malicious prosecution the plaintiff must allege and prove affirmatively its non-existence.

(v) Imprisonment is a tort per se, prosecution is not so in itself; and as such false imprisonment is itself a tort while prosecution is not itself a tort but it becomes a tort, when it is malicious and without reasonable and probable cause. The principle behind this distinction is that interference with man’s personal liberty is prima facie wrongful, and has therefore to be justified, but everyone is prima facie entitled to set the criminal law in motion. Whereas in an action for malicious prosecution the plaintiff has to allege and prove affirmatively the non-existence of reasonable and probable cause.

(vi) Malice is an essential ingredient in an action for making prosecution but in an action for false imprisonment it is not necessary for the plaintiff to prove that the defendant was actuated by malice.

(vii) In an action for malicious prosecution two things are required to be proved, viz., both malice and the absence of any reasonable probable cause for the proceeding complained of; but in an action for false imprisonment liability is created, in general even by honest and inevitable mistake and it is no defence that the defendant had no malice but a bona fide mistake.

(viii) Damage is the gist of the action for malicious prosecution, in which it has to be specially proved that the plaintiff has suffered in person, reputation or pocket, but not so in an action of false imprisonment, However, inconvenience and loss of reputation caused to the plaintiff and the expenses incurred to regain freedom from false imprisonment may be taken into consideration in awarding damages.

It was observed in Chinnamithu’s case, that false imprisonment is the invasion of the interest in freedom for unlawful confinement while a malicious prosecution is the unlawful use of legal procedure to bring about a legal confinement. If the imprisonment is under legal process
but the action has been carried on maliciously and without probable cause it is malicious prosecution. If it has been extra-judicial without legal process it is false imprisonment. It will differ on the facts of each case whether the arrest by a police officer was caused in a ministerial capacity and in compliance with the complainant’s request or in the exercise of his own power. If former is the case, the remedy is the malicious prosecution, if the latter is the case, the remedy is for the false imprisonment.

An action for the abuse of legal process differs from malicious prosecution in that the gist of it is special damage.

Malicious Arrest:

Malicious arrest is wilful putting the law in motion to effect the arrest of another, under civil process, without reasonable and probable cause. It is not actionable, unless it involves interference with liberty. If a person is arrested in execution of a decree or by virtue of a valid order of the Court, he cannot maintain an action for damages for his malicious arrested, even though the person who got him arrest might have acted maliciously because in such a case he cannot be said to be actuated by any unreasonable or improper conduct. But if the arrest is not authorised by law, and is malicious and without reasonable and probable cause, an action for damages for malicious arrest would lie.

In an action for malicious arrest the plaintiff must show:

(i) that the original action out of which the injury arose was decided in his favour;

(ii) that the arrest was fraudulently or improperly obtained by a civil process. An arrest fraudulently or improperly obtained from a criminal court would be malicious criminal prosecution and not civil.

(iii) that the arrest was procured maliciously and without reasonable and probable cause;

(iv) that the damage or injury sustained was such as could not have been compensated for by an award of the costs of the suit.

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