1. The mistaken prosecution of an innocent man is not in itself an actionable wrong; for such a rule would effectively prevent the administration of criminal law. A prosecutor incurs no liability unless he acted both maliciously and without reasonable care.
2. So the mistaken arrest of an innocent man on suspicion of felony is not actionable, if the felony (felony means any serious offence) has been actually committed and if there is reasonable ground for believing that the person arrested is guilty of it.
3. Mistake is always a defence where the plaintiff must prove malice.
Private defence (self-help and self-protection)
Every person is entitled to use a reasonable degree of force for the protection of his person or property. This is called the right of private defence, a well-recognised defence in criminal law.
Remedy available to a party by his own act alone is called self-help. The right of private defence appears at first sight to be an obvious example of this. But this is not so, for there is no question of remedy in private defence.
We are allowed to repel force by force, “not for the redress of injuries but for their prevention”, not in order to undo a wrong done or to get compensation for it but to cut wrong short before it is done; and the right goes only to the extent necessary for this purpose.
It is only when the party’s lawful act restores to him something which he ought to have or puts an end to a state of things whereby he is wronged that self-help becomes a true remedy.
The acts of this nature which we meet within the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, distress damage feasant and abatement of nuisances.
The right of private defence vested in an individual extends to the protection of one’s spouse and family and even servant or master. The force used by the victim to ward of the injury must be proportionate to the nature of the threatened evil.
Ordinary violence must be repelled by ordinary means and a deadly weapon should not be used except against a deadly attack.
If a man is compelled to do an act out of sheer necessity, he will not be liable for the injurious consequences of it to another, even if the said act has caused considerable damage to the latter.
For example, if a house is on fire, you can enter the house and remove the goods to save them, or pull down the house to prevent the spreading of fire to other houses.
So in Cope v. Sharpe the act of burning one’s neighbour’s heather was held justifiable in order to prevent the spreading of fire to his sitting pheasants. The measures taken to prevent the threatened evil should however be reasonable.
In Gregson v. Gilbert, where fifty Negro slaves were thrown overboard owing to shortage of water it was held that no sufficient evidence of necessity had been shown for the captain’s act.
A person cannot complain of a wrong which is authorised by the Legislature. When a statute specially authorises a certain act to be done by a certain person which would otherwise be unlawful and action will lie at the suit of any person for the doing of that act.
The defence of statutory authority and indemnity extends not merely to the act itself, but to all its necessary consequences, otherwise the authority would be useless.
No consequence which can be avoided is within the scope of statutory indemnity, every consequence which cannot be avoided is within that protection.
In Vaughan v. Taff Vale Rly. Co., the defendant company having statutory authority to use steam locomotives was held not liable for a fire caused by escaping sparks it being proved that the engines were constructed with all due care and skill and that it was impossible wholly to prevent the escape of sparks. Two types of cases must be distinguished:
1. Cases of absolute statutory authority, i.e., authority to do the act notwithstanding that it necessarily causes nuisance or other injury.
2. Cases of conditional authority, i.e., authority to do the act provided it can be done without causing such consequences.
In London and Brighton Railway Co. v. Truman, a railway company was by their Act authorised to carry cattle and purchase land by agreement, in addition to land which they were empowered to purchase compulsorily, any land not exceeding fifty acres in such place as should be deemed eligible for the purpose of providing yards for receiving or keeping the cattle conveyed by the railway.
The Act contained no provision for compensation in respect of lands purchased by agreement. The company was held not liable for a nuisance arising from a cattle yard.
The prohibition in the Act was interpreted to be an imperative one, conferring on them absolute immunity from all sorts of liabilities.
A leading case of directive or conditional type is that of Metropolitan Asylum District v. Hill.
In this case, a local authority having statutory authority to erect a smallpox hospital was restrained from erecting one in a place where it would have been a danger to neighboring residents; the authority was constructed as conditional, to erect the hospital only if the authority could obtain a suitable site where no nuisance would result.
If the public officer acts with malice, i.e. with an intent to injure, and damage results, the liability arises and the officer can be sued for the tort of misfeasance in public office.
A Government officer may be held liable in tort, wherein the discharge of his official administrative duties, he acts maliciously, or with an oblique motive or mala fide.
The act complained of must be one which is done in the exercise or purported exercise of some power vested in the officer or authority. It is not necessary that the power exercised must have a statutory origin. A malicious exercise of a power under a contract may give rise to the tort of misfeasance.
The Supreme Court of India stated that the tort of misfeasance in public office occurs when an officer of the Government or a public authority acts maliciously or oppressively, causing harassment and agony to the plaintiff and the officer may be personally liable for payment of compensation.
Duty to plaintiff and not mere public duty
Unless a duty to the plaintiff is violated, he will not be entitled to recover. If the statute had imposed on the defendant a duty to the public only, then he could not be held liable.
In interpreting the statute, the nature of the penalty can also be taken into consideration by the court. If only a trivial sum is fixed by statute for its breach, it cannot have been the intention of the statute to exclude the substantial damages under the ordinary common law.
Thus in Groves v. Wimborne the fine under the statute was only ₤ 100 for the breach of its condition, but the Court of Appeal awarded to the injured plaintiff ₤ 150. In K.R. Shenoy v. Udipi Municipality the Supreme Court held that a municipality is equally liable like any other individual for the infringement of the rights of others.
A resident of the area can compel the municipality to perform any duty imposed upon it by the statute.
Claims are likely to be rejected if they offend public conscience. Claims which can be successfully pleaded without bringing in the illegality are capable of being sustained.