Difference between wrongful confinement (IPC Sec. 340) and wrongful restraint (IPC Sec.339)
As regards difference between the two, wrongful confinements, in the first place, is a form of wrongful restraint. It is keeping a man-within limits out of which he wishes to go and has a right to go while wrongful restraint is keeping a man out of a place where he wishes to go, and has a right to be.
In the second place, in wrongful confinement a person is restrained from moving beyond a certain area within which he is confined, but in wrongful restraint he is free to move anywhere other than to proceed in a particular direction.
In other words, there is full restraint in the former, but only partial in the latter. And lastly, wrongful confinement is a more serious offence inasmuch as it prescribes punishment with imprisonment, simple, or rigorous, extending to one year, or fine up to Rs. 1,000, or both, while wrongful restraint ispunishable with simple imprisonment up to one month or with fine up to Rs. 500 or with both.
Section 349 defines ‘force’ thus: “A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or charge of motion, cessation of motion as brings that substance into contract with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contract affects that other’s sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, in one of the three ways, namely, first by his own bodily power, secondly, by disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person; and thirdly, by inducing any animal to move, to charge its motion or to, cease to move.”
The term force contemplates here the use of force to a person and not to a thing, and as such the presence of the person using the force and of the person to whom it is used is essential.
Section 350 defines “criminal force”. It says: “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.”
(a) Z is sitting in a moored boat on a river; A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A uses force to Z by disposing substances in such a manner that the motion is produced; and if A has done so without Z’s consent, intending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z.
(b) B is riding in a chariot. A lashes Z’s horses, and hereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore, used force to Z; and if A has done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z.
(c) A intentionally pushes against Z, in the street. Here, A has by his own bodily power moved his own person so as to bring it into contract with Z. He has, therefore, intentionally used force to Z; and if he has done so without Z’s consent, intending-or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z.
(d) A intentionally pulls up a woman’s veil
(e) Z is bathing; a pours into the bath water which knows to be boiling; and (f) A incites a dog to spring upon Z, without Z’s consent. A has used force to the woman in (d) or to Z in (e) and
(f) And if A has done so without the woman’s consent, intending to cause injury, fear or annoyance to the women or to Z, he uses criminal force to her or too Z.
Section 351 lays down that whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to their person, is said to commit an assault.
Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparations such a meaning as make those gestures or preparations amount to an assault.
(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause to Z to believe that A is about to strike Z. A has committed an assault, (b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause that dog to attack Z.
A has committed an assault upon Z. (c) A takes up stick, saying to Z, “I will give you a beating.” Here though the words used by A could in no case amount to an assault and though the mere gesture unaccompanied by any other circumstances might not amount to an assault the gesture explained by the words may amount to an assault.
(i) Assault and Criminal Force:
An assault is something less than the use of criminal force, the force being cut short before that blow actually falls. It seems to consist in an attempt or offer by a person having present ability with force to do any hurt of violence to the person of another. And it is committed whenever well founded apprehension of immediate peril from a force already partially or fully put in motion is created.
Thus, in the case of assault the person assaulting puts another in reasonable fear of criminal force by means of a threat, gesture or preparation but in criminal force the offender actually does something to the person to whom criminal force is used. To shake one’s fist at a person is an assault, but bring it into contract with the force itself is criminal force. Therefore, an assault is included in every use of criminal force.
(ii) Assault and Affray:
(1) Assault may take place either in a public place or private, but an affray must always be committed in a public place. (2) Assault is an offence against the public peace. (3) Assault may be committed even by one person but an affray must be committed by two or more persons. (4) In the case of an assault the punishment provided is slightly higher than that provided in the cause of an affray.
(iii) Assault and Insult:
(1) In the case of insult the law makes punishable the insulting provocation which, under ordinary circumstances, would cause a breach of the peace to be committed. (S. 504). An assault, however, need not be intended to cause a breach of the peace.
(2) Mere words do not amount to an assault; something more than mere words are needed. It is the words which a person uses that may give to his gestures or preparations such a meaning as may make those gestures or preparations amount to an assault. Insult may, however, be by mere words.
(3) Assault engenders an apprehension in the mind of the person of the use of criminal force, but insult provokes in him a tendency to commit a breach of the peace.
(iv) Assault and Battery:
The word “battery” has not been defined in the Indian Penal Code. In the English law battery has been defined as any loss, hurt or violence unlawfully and wilfully or culpably done to the person of another.
The term battery as understood in English law, therefore, is included in criminal force as defined in Indian Penal Code. The two expressions “criminal force’ and “assault’ have been discussed earlier and need not be repeated here. Suffice it to say that when a person shakes his fist at another standing by him, he is guilty of assault, but if he strikes that another, is guilty of using criminal force or battery. Physical contract is, therefore, necessary in the case of battery, but not in the case of assault.