Wrongful Restraint & Wrongful Confinement

Author: Sumedha Ray

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Introduction

Section 339 of The Indian Penal Code defines 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 to wrongfully restrain that person. Wrongful restraint means preventing a person from going to a place where he has a right to go. 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 somewhere else. In wrongful confinement, there is restraint from proceeding in all directions beyond a certain area. One may even be wrongfully confined in one’s own country whereby a threat issued to a person prevents him from leaving the shores of his land.

Object – 

The object of this section is to protect the freedom of a person to utilize his right to pass in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical obstruction is not necessary always. Even by mere words constitute offence under this Section. The main ingredient of this section is that when a person obstructs another by causing it to appear to that other that it is impossible difficult or dangerous to proceeds as well as by causing it actually to be impossible, difficult or dangerous for that to proceeds.

Ingredients:

1. An obstruction.
2. Obstruction prevented complainant from proceeding in any direction.

Obstruction:-

Obstruction means physical obstruction, though it may cause by physical force or by the use of menaces or 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.

In simple word it means keeping a person out of the place where his wishes to, and has a right to be.

This offence is completed if one’s freedom of movement is suspended by an act of another done voluntarily. Restraint necessarily implies abridgement of the liberty of a person against his own will. What is required under this Section is obstruction to free movement of a person; the method used for such obstruction is immaterial. Use of physical fore for causing such obstruction is not necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but in certain circumstances, it may be caused by threat or by mere words. Effect of such words upon the mind of the person obstructed is more important than the method.

Obstruction of personal liberty:

Personal liberty of a person must be obstructed. A person means a human being, here the question arises whether a child of a tender age who cannot walk on his own legs, could also be the subject of restraint was raised in MahendraNathChakravarty vs. Emperor[1]. It was held that the section is not confined to only such person who can walk on his own legs or can move by physical means within his own power. It was further said that if only those who can move by physical means within their own power are to be treated as a person who wishes to precede then the position would become absurd in cases of paralytic or sick who on account of his sickness cannot move.

Another point that needs our attention is whether obstruction to vehicle seated with passengers would amount to wrongful restraint or not. An interesting judgment of Bombay High Court in Emperor vs. Ramlal[2] states that where, therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent another bus coming from behind to proceed further, he is guilty of an offence under Section 341 of The Indian Penal Code for wrongfully restraining the driver and passengers of another bus. It is absurd to say that because the driver and the passengers of the other bus could have got down from that bus and walked away in different directions, or even gone in that bus to different destinations, in reverse directions, there was therefore no wrongful restraint, is the judgment given by the Bombay High Court which is applicable in our country too.

Section 340 defines wrongful confinement.

Whoever wrongfully restraints any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.

Object – 

The object of this section is to protect the freedom of a person where his personal liberty has totally suspended or abolish, by voluntarily act done by another.

Ingredients:

• Wrongful confinement of person.
• Wrongful restraint of a person
• Such restraint must prevent that person from proceeding beyond certain limits.

Prevent from proceedings:

Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go.

There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement.

For wrongful confinement proof of actual physical obstruction is not essential.

Circumscribing Limits:

Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own.

Moral force: Detention through the excise of moral force, without the accomplishment of physical force is sufficient to constitute this section.

Degree of Offense

Wrongful restraint is not a serious offence, and the degree of this offense is comparatively less then confinement.

Wrongful confinement is  a serious offence, and the degree of this offense is comparatively intensive then restraint.

Principle element

Voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a right to.

Voluntarily wrongfully restraint a person where he wishes to, and he has a right to, within a circumscribing limits.

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.

it is a absolute or total restraint or obstruction of a personal liberty.

Nature

Confinement implies wrongful restraint.

Wrongful confinement not implies Wrongful Confinement.

Wrongful restraint: The expression “Wrongful re­straint” implies keeping a man  out of a place where he wishes and has a right to be. Section 339 defines it thus: “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.

 Wrongful confinement:Section 340 lays down that who­ever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, said “wrongfully to confine” that person.

 

Difference between wrongful confinement and wrongful re­straint:

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 is punishable with simple imprisonment up to one month or with fine up to Rs. 500 or with both.

Other Related Terms

Force:

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.

Criminal force:

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.”

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.

(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 willfully 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.

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[1]AIR 1930 Cal 578.

[2](1919) ILR 61 All 390.

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About the author: Sumedha is a fourth-year student at Symbiosis Law School, Pune.