Sec 348-359 IPC PSA - it talks about psa pilla criminal law PDF

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Date and Time: Tuesday 25 January 2022 2:29:00 PM IST Job Number: 162622804

Documents (10) 1. 37.1 Force Client/Matter: -None2. 37.2 Criminal Force Client/Matter: -None3. 37.3 Force and Criminal Force Client/Matter: -None4. PART B ASSAULT Client/Matter: -None5. 37.4 Ingredients Client/Matter: -None6. 37.5 Difference between Assault, Criminal Force and Hurt Client/Matter: -None7. 37.6 Punishment for Assault or Criminal Force Client/Matter: -None8. 37.7 Aggravated Forms of Assault or Criminal Force Client/Matter: -None9. NoTitle Client/Matter: -None10. PART D PROPOSALS FOR REFORM Client/Matter: -None-

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37.1 Force PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART A CRIMINAL FORCE

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART A CRIMINAL FORCE

37.1 Force [s 349] Force.— Force.—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 change of motion, or cessation of motion as brings that substance into contact 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 contact affects that other’s sense of feelings; provided that the person causing the motion, or change of motion, or cessation of motion, cause that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:

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.

Thirdly. —By inducing any animal to move, to change its motion, or to cease to move. Section 349 defines “force”. This section, as defined by itself, does not constitute any offence. It merely explains what amounts to “force”. An understanding of the term “force” is necessary to understand the definition of “criminal force” in section 350. Further, the definition of both “force” and “criminal force” is necessary for the purpose of defining and understanding “assault” as defined in section 351. The term “force” has been defined in minute detail in the section. To put the entire first paragraph in one sentence: force is the exertion of energy or strength producing a movement or change in the external world. The second

Page 2 of 2 37.1 Force paragraph merely deals with a situation, where some other body is interposed between the person using the force and the person on whom the force is used. The term “force” as defined in this section contemplates force used by a human being on another human being. It does not contemplate the use of force against inanimate objects.1 This is clear from the use of the word “another” in the section. Thus, a motion or change of motion or cessation of motion caused to property without affecting a human being is not the “use of force to another” within the meaning of this section.2 In Chandrika Sao v State of Bihar , AIR 1967 SC 170 [ LNIND 1962 SC 316 ]: (1967) Cr LJ 261 (SC) an assistant superintendent of commercial taxes paid a surprise visit to the shop of the accused to inspect the books of account. He found two sets of account books in the shop. He took them and started looking into them. Suddenly, the accused snatched away both the books from him. The accused was charged under section 353, IPC . It was contented on behalf of the accused that the mere snatching of books does not amount to “using force” as contemplated by section 349. The Supreme Court rejected this argument observing that it would be clear from a bare perusal of the section that one person can be said to have used force against another if he causes motion, change of motion or cessation of motion to that other. By snatching away the books which the official was holding, the accused necessarily caused a jerk to the hand or hands. Further, the natural effect of snatching the books from the hand or hands of the official would be to affect the sense of feeling of the hands of the official. The court, therefore, held that the action of the accused amounts to use of force as contemplated by section 349, IPC .

1

Sadashiv Mondal v Emperor, AIR 1915 Cal 131; Balaram Sahu v Chandra Sahu, AIR 1921 Pat 391.

2

Ramakant Rajaram v Manuel Fernandes, AIR 1969 Goa 45 : (1969) Cr LJ 469 (Goa); Gordhan Das v State of Rajasthan, AIR 1968 Raj 241 [LNIND 1968 RAJ 56 ]: (1968) Cr LJ 1304 (Raj); see also Bhupinder Singh v State, (1997) Cr LJ 3416 (P&H) : 1997 (2) RCR (Criminal) 398.

End of Document

37.2 Criminal Force PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART A CRIMINAL FORCE

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART A CRIMINAL FORCE

37.2 Criminal Force [s 350] Criminal force.— force.—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.

Illustrations (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 intentionally causes the motion to Z, and he does this by disposing substances in such a manner that the motion is produced without any other action on any person’s part. A has therefore intentionally used force to Z; and if he has done so without Z’s consent, in order to the committing of any offence, or 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) Z is riding in a chariot, A lashes Z’s horses, and thereby 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) Z is riding in a palanquin. A, intending to rob Z , seizes the pole and stops the palanquin. Here A has caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used force

Page 2 of 3 37.2 Criminal Force to Z; and as A has acted thus intentionally, without Z’s consent, in order to the commission of an offence, A has used criminal force to Z. (d) 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 contact 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. (e) A throws a stone, intending or knowing it to be likely that the stone will be thus brought into contact with Z, or with Z’s clothes, or with something carried by Z , or that it will strike water, and dash up the water against

Z’s clothes or something carried by Z. Here, if the throwing of the stone produces the effect of causing any substance to come into contact with Z , or Z’s clothes, A has used force to Z ; and if he did so without Z’s consent, intending thereby to injure, frighten or annoy Z, he has used criminal force to Z. (f) A intentionally pulls up a woman’s veil. Here A intentionally uses force to her, and if he does so without her consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he has used criminal force to her. (g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A intentionally by his own bodily power causes such motion in the boiling water as brings that water into contact with Z, or with other water so situated that such contact must affect Z’s sense of feeling; A has therefore intentionally used force to Z; and if has done this without Z’s consent intending or knowing it to be likely that he may thereby cause injury, fear, or annoyance to Z , A has used criminal force. (h) 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.

Of these illustrations, illustration (a) exemplifies motion in section 349; illustration (b) “change of motion”; illustration (c) “cessation of motion”; illustrations (d), (e), (f), (g) and (h) “cause to any substance any such motion”; illustrations (d), (e), (g) and (h) also bring that substance into contact with any part of that other’s body; and illustrations (f) and (g) indicate “others” sense of feeling.

Clause (1) of section 349 is illustrated by illustrations (c), (d), (e), (f) and (g); clause (2) of section 349 is illustrated by illustration (a); clause (3) of section 349 is illustrated by illustrations (b) and (h). In brief, force is the exercise of one’s energy upon another human being and it may be exercised directly or indirectly. So, if A raises his stick at B and the latter moves away, A uses force within the meaning of this section. Similarly, if a person shouts, cries and calls a dog or any other animal and it moves in consequence, it would amount to the use of force. Criminal force is equivalent to “battery” in English law, which means the intentional infliction of force by one person upon another against the latter’s consent. The essential ingredients of the section are: (i) there must be use of force

Page 3 of 3 37.2 Criminal Force as defined by section 349; (ii) such force should be used intentionally; (iii) the force must be used against a person and (iv) it should have been used without the consent of the person against whom it is used. The use of force should be in: (a) pursuit of committing an offence; or (b) intending to cause or knowing that it is likely to cause injury, fear or annoyance to the person to whom the force is used.

End of Document

37.3 Force and Criminal Force PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART A CRIMINAL FORCE

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART A CRIMINAL FORCE

37.3 Force and Criminal Force Section 349, which defines force, by itself does not spell out any offence. In fact, force as defined therein can be put to positive or good use. For instance, pulling a person away from fire, so as to save him from being burnt, or pushing or dragging a person so as to prevent him from being run down by a vehicle are some examples of force put to good use. Force becomes “criminal force”, only when it satisfies all the ingredients set out in section 350. Force should be used: (a) without the consent of the person and in order to the committing of an offence; or (b) when it is used to cause injury, fear or annoyance to the person on whom the force is used. As seen in the definition of “force”, criminal force is also concerned with the use of force on a human being alone and not against immovable property or other inanimate objects. Further, the section contemplates the physical presence of the person on whom the force is used. When the lock of a house was broken in the absence of the occupant of the house, then it is clear that the accused had taken possession of the house without any force or show of force.3 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, if it is done to cause him fear, annoyance, etc. Thus, the physical presence of a person makes the crucial difference between an act amounting to “criminal force” or not. The use of force which causes motion, change of motion or cessation of motion to another person, done without the consent of such person, in order to commit an offence, or cause injury, fear or annoyance to the said person, thus, will amount to criminal force. No bodily injury or hurt need be caused. The word “intentional” excludes all involuntary, accidental or even negligent acts. An attendant at a bath, who from

Page 2 of 2 37.3 Force and Criminal Force pure carelessness turns on the wrong tap and causes boiling water to fall on another, as in illustration (g) to section 350, could not be convicted for the use of criminal force.4 37.3.1 Consent The word “consent” should be taken as defined in section 90, IPC . There is some difference between doing an act “without one’s consent” and “against his will”. The latter involves active mental opposition to the act.5

3

Bihari Lal v Emperor, AIR 1934 Lah 454 : 152 Ind Cas 162; see also Ramakant Rajaram v Manuel Fernandes, AIR 1969 Goa 45 : (1969) Cr LJ 469 (Goa); Nani Gopal Das v Bhima Charan Rakshit, AIR 1956 Cal 32 [LNIND 1955 CAL

63]: (1956) Cr LJ 214 (Cal).

4

See John D Mayne, The Criminal Law of India, 4th Edn Higginbotham, Madras, 1896, p 559.

5

Ibid

End of Document

PART B ASSAULT PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART B ASSAULT

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART B ASSAULT [s 351] Assault.— Assault.—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 that person, is said to commit an assault.

Explanation. —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 may make those gestures or preparations amount to an assault.

Illustrations (a) 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. (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 the dog to attack Z . A has committed an assault upon Z. (c) A takes up a 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 circumstance, might not amount to an assault, the gesture explained by the words may amount to an assault.

End of Document

37.4 Ingredients PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART B ASSAULT

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART B ASSAULT

37.4 Ingredients The essential ingredients of assault are: (i) the accused should make a gesture or preparation to use criminal force; (ii) such gesture or preparation should be made in the presence of the person in respect of whom it is made; (iii) there should be intention or knowledge on the part of the accused that such gesture or preparation would cause apprehension in the mind of the victim that criminal force would be used against him and (iv) such gesture or preparation has actually caused apprehension in the mind of the victim, of use of criminal force against him. 37.4.1 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 the section provides that mere words do not amount to assault, unless the words are used in aid of the gesture or preparation which amounts to assault.6 37.4.2 Cause Apprehension of Assault Another essential requirement of assault is that the person threatened should be present and near enough to apprehend danger. In order to constitute the offence of assault, it is essential that the person apprehends that there will be use of criminal force against him. There must have been present ability in the assailant to give effect to his purpose. If a person standing in the compartment of a running train, makes threatening gestures at a person standing on the station platform, the gestures will not amount to assault, for the person has no present ability to effectuate his purpose. Mere threat of an assault is not an assault. For example, A has been constantly taking fruits from B’s tree. B tells A that the next time

Page 2 of 2 37.4 Ingredients he sees him taking away the fruits, he will beat him. This will not amount to an assault. This is merely threat of an assault from B to A, that in the future, if A persists with a certain behaviour, he will be beaten. At that point in time, there was no apprehension in A that B would use criminal force against him immediately. It is something in the nature of a conditional assault or a threat to commit assault. The question whether a particular act amounts to an assault or not, depends on whether the act has caused reasonable apprehension in the mind of the person that criminal force was imminent. As stated earlier, the words or the action should not be threat of assault at some future point in time. The apprehension of use of criminal force against the person should be in the present and immediate.

6

The instances of assault, for example, are: (i) pointing of a gun, whether loaded or unloaded, at a person at a short distance; (ii) fetching a sward and advancing with it towards the victim; (iii) lifting one’s lota or lathi ; (iv) throwing brick into another’s house and (v) advancing with a threatening attitude to strike blows.

End of Document

37.5 Difference between Assault, Criminal Force and Hurt PSA Pillai: Criminal Law, 14th ed PSA Pillai KI Vibhute

PSA Pillai: Criminal Law, 14th ed > PSA Pillai: Criminal Law, 14th ed > CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) > PART B ASSAULT

CHAPTER 37 CRIMINAL FORCE AND ASSAULT (Indian Penal Code 1860, Sections 349 to 358) PART B ASSAULT

37.5 Difference between Assault, Criminal Force and Hurt The words “assault”, “criminal force” and “hurt” have distinct meanings and definitions in the IPC. They deal with different stages of the commission of offence and with different effects. In common parlance, these three words are used synonymously. In fact, assault is generally understood to mean the use of criminal force against a person, causing some bodily injury or pain. But, legally, “assault” denotes the preparatory acts which cause apprehension of use of criminal force against the person. Assault falls short of actual use of criminal force. The moment criminal force is actually used, then it goes beyond the legal meaning of assault as the act had gone beyond the stage of preparation. An assault is then nothing more than a threat of violence exhibiting an intention to use criminal force accompanied with present ability to effect that purpose. If force is applied, it then be...