Criminal Force and Assault under IPC

SECTION 349: FORCE

I. INTRODUCTION- When is a person said to use force ?

Oxford Dictionary defines force as “coercion or compulsion, especially with the use or threat of violence”.

II. SCOPE

This section provides that a person is said to use force to another if he causes :

1. Motion or
2. Change of motion or
3. Cessation of motion

to that other, or if he causes to any substance into contact,

1. with any part of that other’s body or
2. with anything which that other is wearing or carrying or
3. with anything that such contact affects that other’s sense of feeling.

Provided the person causes that motion etc. in any of the following three ways :

1. By his own bodily power or
2. 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 or
3. By inducing any animal to move, to change its motion or to cease to move.

However, the term force used in this section contemplates use of force against a person and not a thing. Force against inanimate objects is outside the purview of S. 349.

Held :- It was held in this case that this section contemplates that the both the persons, one using the force and the other to whom the force is directed must be present to make the offence complete.

SECTION 350: CRIMINAL FORCE

I. SCOPE

The force that has been defined in S. 349 becomes criminal force when the ingredients of S. 350 are satisfied which are as follows :

1. Intentional use of force to any person;
2. Such force should have been used without the consent of the victim;
3. The force must have been used to commit an offence or with the intention to cause injury, fear or annoyance to some other person.

Illustration :- If A spits over B. A would be liable for using criminal force against B because  spitting must have caused annoyance to B.

II. CRIMINAL FORCE

The term criminal force includes what in English Law is known as ‘battery’. However, criminal force in certain situations can be so slight that it may not amount to an offence as per S. 95of IPC (Act causing slight harm).

III. EXPLANATION OF ESSENTIALS

1. Intentionally uses force – Use of force must be intentional.
2. Without consent – Mere submission by one who does not know the nature of the act being done cannot be said to have consented. Consent can never be a defence when the alleged assault is an unlawful act itself. To this rule there are a number of exceptions, such as blows struck in the course of friendly athletic contests, but blows struck for the purpose of gratifying sexual passion does not come within the recognized exceptions.
3. The force must have been used for the purpose of committing an offence. Offence has been defined in S. 40 of IPC.

Illustration :- A intentionally pulls up a woman’s veil. Now if A has done so without her consent intending or knowing that it is likely to frighten or annoy her, he has used criminal force to her.

Held:- It was held that S. 350 contemplates use of force to a person and not to a thing.

SECTION 351: ASSUALT

I. INTRODUCTION

Oxford Dictionary defines assault as “an act that threatens physical harm to a person (whether or not the actual harm is done).” It is a term easy to understand but difficult to define. Mere threat may constitute assault. The essence of the offence lies in the effect which the threat creates in the mind of the victim.

II. INGREDIENTS

The following are the essential ingredients of the section :-

1. Making of any gesture or preparation by a person in the presence of another.
2. Intention or knowledge 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.

Explanation – It provides that mere words do not amount to assault. But use of words if accompanied with such gestures or preparation that may cause another to apprehend that criminal force if about to be used against him amounts to assault.

Illustration – A shakes his fist at Z, intending that he likely will cause Z to believe that A is about to strike Z. A has committed assault.

Held : It was held that medical examination of a woman without her consent constitutes the offence of assault.

III. SCOPE

Not every threat constitutes assault. Therefore, it is necessary that the person threatening must be in a position to carry the threat into effect.

IV. Difference b/w Assault & Criminal Force, Assault & Battery

Example of Battery

John becomes angry with Mark over the $100 that Mark owes him. The two get into an argument that leads to John punching Mark in the face, breaking his nose. John is arrested and charged with battery, and, in addition to the criminal case, Mark sues John in civil court for medical expenses.

Example of Assault

John becomes angry with Mark over the $100 that Mark owes him. They two men get into a violent argument during which John threatens to punch Mark in the face. This threat causes Mark to fear he will be harmed. John is charged with assault, even though he failed to carry out the threat, and so there was no actual bodily harm.

SECTION 352: PUNISHMENT FOR ASSAULT OR CRIMINAL FORCE

I. INTRODUCTION

This section provides for punishment for assault or use of criminal force when there are no aggravating circumstances.

II. EXPLANATION OF SECTION

1. This section provides that whoever assaults or uses criminal force shall be punished with imprisonment which may extend to three months or with fine or with both.
2. The above punishment is subject to the condition that such assault or use of criminal force should not be due to grave and sudden provocation given by the other person. Generally, if there is grave provocation, the court inflicts lighter punishment.
3. Explanation – It provides that grave and sudden provocation cannot be taken as a defence under this section in the following situations
4. If the provocation is voluntarily provoked by the offender as an excuse for the offence or
5. If the provocation is given by the other party in obedience to the law or
6. If the provocation is given by a public servant in the lawful exercise of his powers as a public servant or
7. If the provocation is given by anything done in the lawful exercise of the right to private defence.
8. With respect to the fact as to whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.

III. PROCEDURE

1. It is non cognizable, bailable, compoundable and triable by any Magistrate.
2. Autrefois acquit – A person who has been tried and discharged for the offence of using criminal force under this section cannot again, upon the same complaint, e tried for causing simple hurt.

SECTION 353: ASSAULT OR CRIMINAL FORCE TO DETER PUBLIC SERVANT

I. SCOPE

This section applies where public servants are assaulted while they are performing their official duty imposed on them by law.

II. ESSENTIAL INGREDIENTS

The following requirements must be satisfied to apply this section :-

1. There must be assault or use of criminal force on a public servant; and
2. It must have been made on a public servant  –
3. while he was acting in the execution of his duty or
4. with intent to prevent or deter him from discharging his duty or
5. in consequence of anything done by him in the discharge of his duty

If hurt is caused under these circumstances then either section 332 or 333 will apply. When is criminal force said to have been used is elaborated in S. 350 while assault has been dealt in S. 351.

It has been held that if the warrant of arrest is signed by an unauthorized person (Jagpat Koeri case), or if the date fixed for execution of warrant has expired (Raghubir case ) or if it has no seal, the resistance by the person against whom it is produced will be legal. Similarly, resistance by a person for search of his house by a public servant who has no proper written order, would be valid and would not amount to an offence under this section.

III. PROCEDURE

It is non cognizable, not bailable, not compoundable and triable by any magistrate.

IV. PUNISHMENT

For an accused convicted under this section, punishment will be imprisonment which may extend up to 2 years or with fine or both.

SECTION 355: ASSUALT OR CRIMINAL FORCE WITH INTENT TO DISHONOUR PERSON

I. ESSENTIAL INGREDIENTS

In order to attract the application of this section, the following ingredients shall be fulfilled :-

1. There should be an assault or use of criminal force to any person;
2. With the intention of dishonouring that person;
3. Otherwise than on grave and sudden provocation given by the other person.

II. PUNISHMENT

Imprisonment which may extend to two years or with fine or both.

Illustration :- If an accused strikes a sub-inspector who is standing in the witness box giving evidence against him. then the section will be applicable.

SECTION 356: ASSUALT OR CRIMINAL FORCE IN ATTEMPT TO COMMIT THEFT OF PROPERTY

I. ESSENTIAL INGREDIENTS

In order to attract the application of this section, the following ingredients shall be fulfilled :-

1. There should be an assault or use of criminal force to any person;
2. With an attempt to commit theft of any property which that person is wearing or carrying.

II. PUNISHMENT

Imprisonment which may extend to two years or with fine or both.

SECTION 357: ASSUALT OR CRIMINAL FORCE IN ATTEMPT WRONGFULLY TO CONFINE A PERSON

I. ESSENTIAL INGREDIENTS

In order to attract the application of this section, the following ingredients shall be fulfilled :-

1. There should be an assault or use of criminal force to any person;
2. With an attempt to wrongfully confine that person.

II. PUNISHMENT

Imprisonment which may extend to one year or with fine which may extend to Rs. 1000 or both.

SECTION 358: ASSUALT OR CRIMINAL FORCE ON GRAVE PROVOCATION

I. ESSENTIAL INGREDIENTS

In order to attract the application of this section, the following ingredients shall be fulfilled :-

1. There should be an assault or use of criminal force to any person;
2. On grave and sudden provocation given by that person.

II. PUNISHMENT

Imprisonment which may extend to one month or with fine which may extend to Rs. 200 or both.

Note : S. 358 is subject to the same explanation as is S. 352.