Criminal
Force: Criminal Force has been defined under section 350 of the Penal Code, 1860.
However, for complete understanding of criminal force, we must have to gather
knowledge about “Force” which is defined under section 349 of the Code.
Force: The term “Force” defined in section 349 contemplates force used by one human being on another
human being. In order to constitute force there must be at least....
a. Causing
of motion; or
b. Change
of motion; or
c. Cessation
of motion.
In Jai Ram v.
Emperor, the accused raises his stick to strike the plaintiff, the
plaintiff seeing the accused raising the stick moves away. It was held by the
Court that A uses the force within the meaning of this section.
In Ramkant Rajaram
v. Manuel Ferandes, It was held that a motion or change of motion caused to
propertywithout affecting a human being is
not the ‘Use of Force to Another within the meaning of this section.’
Criminal
Force:
The last Section
defined ‘force’ which by itself is not an offence , for the use of force may
take place under circumstances the most benevolent, as where a person pulls
another out of a well to save him from being drowned in the well, such an act
is not an offence.
Section
350
defines criminal forces as of the following...
Whoever intentionally uses force to any person, without
that person's consent, in order to the committing of any offence, or intending
by the use of such force to cause, or knowing it to be likely that by the use
of such force he will cause injury, fear or annoyance to the person to whom the
force is used, is said to use criminal force to that other.
###Intentional: The word intentional excludes all Involuntary,
accidental or even negligent acts. An Attendant at a bath, who from pure
carelessness turns on the wrong tap and causes boiling water to fall on another,
could not be convicted for the use of Criminal Force.
Force becomes criminal
only when....
a.
It is used without consent and in order to the
committing of an offence.
b.
When it is intentionally used to cause injury,
fear or annoyance to another to whom the force is used.
Essential
Ingredients: The essential ingredients of
this section are as follows:
(i)
Intentional
use of force to any person.
(ii)
Such
Force must have been used without the person’s consent
(iii)
The Force must have been used: - (a) in order
to committing of an offence. (b) Intending to cause or knowing that is likely
to cause Injury, fear or the annoyance to the person to whom the Force is used.
Criminal Force Criminal Force
is Equivalent to “battery” in English law which means the intentional
infliction of force by one person upon another against latter’s consent. If A
spits over B, then A would be liable for use of Criminal Force as it must have
cause annoyance to B.
In,
Bihari Lal v. Emperor:
A
person broke the house in the absence of the occupant, then it is clear that
the accused had taken the possession of the house without any force or criminal
force. But if, a person struck a pot which another person was carrying and
which was in contact with his body, it constitutes the offence of criminal
force. Thus the physical presence of a person makes a crucial difference,
between an act amounting to criminal force or not.
Assault: An
assault is nothing more than a threat of violence exhibiting an intention to
use criminal force, and the present ability and intention to carry the threat
into execution.
Assault has been defined
under section 351 which basically
requires two things:-
(i)
Making of any gesture or preparation by a
person in the presence of another.
(ii)
Intention or knowledge of the likelihood that
such gesture or preparation will cause the person present to apprehend that the
person making it is about to use Criminal Force to him.
Gesture or Preparation: According to this section, the mere gesture or preparation
with the intention or knowledge that it is likely to cause apprehension in the
mind of the victim, amounts to an offence of assault. The explanation to this
section provides that mere words do not amount to assault, unless the words are
used in the aid of the gesture or preparation which amounts to an assault.
In,
Read v. Cooker: An assault is constituted by an
attempt to apply unlawful force to another or any threat which is accompanied
by or consists of any act or gesture showing a present intent to use unlawful
force and also accompanied by “a present ability to carry the threat into
Execution”.
##Difference between Assault and Criminal Force:
1. Assault is
defined in Sec. 351 of the Penal Code while criminal force is explained in
section 350 of the Code.2. There is no physical contact in an assault but there is physical contact or fear in the mind of the aggrieved person in the application of criminal force is seen.
3. Assault is an ‘attempt’ to commit criminal force whereas in Criminal Force the action of the wrong-doer is completed.
4. Every assault may not include criminal force but every criminal force must always include assault.
5. An assault is an over act indicating an immediate to commit criminal force coupled with the capacity of carrying out the intention into effect while the criminal force is something more in it an intentional application of force to the person of another without lawful justification.
6. In order to constitute an assault it is also necessary that the person so assaulted must, on reasonable grounds, believe that the person assaulting has the ability to apply the force/criminal force so attempted by him but no such belief is needed in force/criminal force. On the other hand, the application of even the slightest amount of force is actionable. Even a slight touch to person or causing fear is sufficient.
7. Throwing the water upon a person is an assault while as soon as the water falls on the person, it becomes force.
8. Assault is a lesser form of offence, comparing with criminal force.
9. Illustrations: A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.
A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause injury, fear or annoyance to Z, he uses criminal force to Z.
##Punishment for
assault or criminal force otherwise than on grave provocation: Under section 352, Whoever assaults or
uses criminal force to any person otherwise than on grave and sudden
provocation given by that person, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine which may
extend to five hundred taka, or with both.
##Assault or criminal
force to deter public servant from discharge of his duty: Under section 353, Whoever assaults or
uses criminal force to any person being a public servant in the execution of
his duty as such public servant, or with intent to prevent or deter that person
from discharging his duty as such public servant, or in consequence of anything
done or attempted to be done by such person in the lawful discharge of his duty
as such public servant, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
both.
##Assault or criminal
force to woman with intent to outrage her modesty: Under section 354, Whoever assaults or
uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
##Assault or criminal
force with intent to dishonour person, otherwise than on grave provocation: Under
section 355,
Whoever assaults or uses criminal force to any person, intending thereby to
dishonour that person, otherwise than on grave and sudden provocation given by
that person, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
##Assault or criminal
force in attempt to commit theft of property carried by a person: Under section 356, Whoever assaults or
uses criminal force to any person in attempting to commit theft on any property
which that person is then wearing or carrying shall be punished with
imprisonment of either description for a term which may extent to two years, or
with fine, or with both.
##Assault or criminal
force in attempt wrongfully to confine a person: Under section 357, whoever assaults or
uses criminal force to any person, in attempting wrongfully to confine that
person, shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to one thousand
taka, or with both.
##Assault or criminal
force on grave provocation: Under section 358, whoever assaults or
uses criminal force to any person on grave and sudden provocation given by that
person, shall be punished with simple imprisonment for a term which may extend
to one month or with fine which may extend to two hundred taka, or with both.
Wrongful
restraint
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Wrongful
restraint means preventing a person from going to a place where he has a
right to go.
According
to S.
339 of the Penal Code, 1860, Whoever voluntarily obstructs any person so as
to prevent that person from proceeding in any direction in which that person
has a right to proceed, is said wrongfully to restrain that person.
A person
cannot be convicted for the offence of wrongful restraint if he has not a
right to proceed in the direction in which he was proceeding at the time of
his restraint. AIR 1916 Mad
696.
An obstruction by a person of one community to a person of another community from passing a public way is an offence under this section.
AIR
1927 Mad 938.
Exception. The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section. Where A claims a private right of way over B’s Property and B in good faith believes that A has no such right and obstructs him in his attempt to proceed on that way, the proper remedy of A in such a case lies in the Civil Court. AIR 1964 J and K 4. Illustration: A obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z. |
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Ingredients: This section requires –
v Voluntary obstruction of a
person.
v The obstruction must be such as
to prevent that person from proceeding in any direction in which he has a
right to proceed.
Obstruction
means physical obstruction, though it may cause by physical force or by the
use of threats. When such obstruction is wrongful it becomes the wrongful
restraint. For a wrongful restraint it is necessary that one person must
obstruct another voluntarily.
Punishment
Whoever
wrongfully restrains any person shall be punished with simple imprisonment
for a term which may extend to one month, or with fine which may extend to
five hundred taka, or with both. [ S.341]
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Wrongful Confinement:
In
wrongful confinement, a person is kept within certain limits out of which he
wishes to go and has a right to go in wrongful restraint; a person is
prevented from proceeding in some particular direction though free to go
elsewhere. In wrongful confinement, there is restraint from proceeding in all
directions beyond a certain area.
According to S. 340 of the
Penal Code, 1860, Whoever wrongfully restrains any person in such a
manner as to prevent that person form proceeding beyond certain circumscribing
limits, is said "wrongfully to confine" that person.
##Wrongful confinement is a wrongful prevention of a
person from proceeding beyond certain circumscribing limits. Where there was
no desire to proceed in a certain way on the part of the complaint it cannot
be said that there was obstruction though the accused may have intended and
even expressed his intention to restrain the complaint should he move from
his present position. AIR 1957 Orissa 130.
##Wrongful confinement is a
species of wrongful restraint. The essential ingredient of this offence is
physical obstruction to the movement of a person. The mere keeping of a watch
on a person without in any way hindering his movement by physical impediments
in this way does not fall under this section.
Illustrations:
(a) A
causes Z to go within a walled space, and locks Z in. Z is thus prevented
from proceeding in any direction beyond the circumscribing line of wall. A
wrongfully confines Z.
(b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.
Punishment:
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Difference between wrongful
restraint and confinement: There are following important distinction between
wrongful restraint and wrongful confinement:
1. Confinement
Degree of Offence: Wrongful restraint is not serious offence, and the
degree of this offence is comparatively less then confinement; Whereas,
wrongful confinement is a serious offence, and the degree of this offence is
comparatively intensive then restraint.
2. Principal
element: Voluntarily wrongful obstruction of a person personal liberty,
where he wishes to, and he have a right to; Whereas, voluntarily wrongful
restraint a person where he wishes to, and he has a right to, within a
circumscribing limits.
3. Personal
liberty: It is a partial restraint of the personal liberty of a person. A
person is restraint is free to move anywhere other than to proceed in a
partial direction. Whereas, it is an absolute or total restraint or
obstruction of a personal liberty.
4. Nature:
Confinement implies wrongful restraint. Whereas, wrongful confinement not
implies vice – versa.
5. Necessity:
No limits or boundaries are required. Whereas, certain circumscribing limits
or boundaries requires.
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