Greater Kashmir’s Understanding the Law Initiative: Hands That Hinder, Walls That Bind

The Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant legislative overhaul of India’s criminal justice framework, replacing the Indian Penal Code of 1860. Among its various provisions, the BNS retains and redefines classical offences relating to personal liberty and bodily autonomy, including wrongful restraint, wrongful confinement, criminal force, and assault. These provisions lie at the heart of protecting individual freedom and security, forming the foundation for the right to move freely, the right to be free from unlawful detention, and the right to be free from physical harm or threat thereof.

What constitutes wrongful restraint?

A person is said to wrongfully restrain another when they voluntarily obstruct that person so as to prevent them from proceeding in any direction in which they have a right to proceed.

 Is there any exception to the offence of wrongful restraint?

Yes. If someone obstructs a private way over land or water and does so in good faith believing they have a lawful right to obstruct it, then it is not considered an offence.

 Is there an example of wrongful restraint?

Yes. If A obstructs a path that Z has a right to pass through, and A does not believe in good faith that he has the right to stop the path, then A wrongfully restrains Z.

 What is the punishment for wrongful restraint?

The punishment may be simple imprisonment for up to one month, or a fine up to five thousand rupees, or both.

 What is wrongful confinement?

Wrongful confinement occurs when a person wrongfully restrains another in such a manner that they are prevented from proceeding beyond certain circumscribing limits.

 Are there any examples of wrongful confinement?

• If A causes Z to go inside a walled area and locks the gate, thereby preventing Z from moving in any direction beyond the walls, A wrongfully confines Z.
• If A places armed guards at the exits of a building and tells Z that the guards will shoot if Z tries to leave, A wrongfully confines Z.

 What is the punishment for wrongful confinement?

It may lead to imprisonment of either description for up to one year, or a fine up to five thousand rupees, or both.

 What if a person is wrongfully confined for three days or more?

The punishment may extend to imprisonment of either description for up to three years, or a fine up to ten thousand rupees, or both.

 What is the punishment for wrongful confinement for ten days or more?

The person shall be punished with imprisonment of either description for up to five years, and also be liable to a fine of not less than ten thousand rupees.

 What happens if someone continues to confine a person even after a writ for their release has been issued?

The person shall be punished with imprisonment of either description for up to two years in addition to any other imprisonment they are liable for, and shall also be liable to fine.

 What is the punishment if someone confines a person in a way that the confinement is kept secret?

The person shall be punished with imprisonment of either description for up to three years, in addition to any other punishment for the wrongful confinement, and shall also be liable to fine.

 What is the punishment for wrongful confinement for the purpose of extorting property or forcing someone to do an illegal act or provide information to facilitate a crime?

The person shall be punished with imprisonment of either description for up to three years and shall also be liable to fine.

 What is the punishment for wrongful confinement to extort confession or information leading to detection of an offence or to recover property or satisfy a claim?

The punishment is imprisonment of either description for up to three years, and the person shall also be liable to fine.

 When is a person said to use force on another?

A person uses force on another if they cause motion, change of motion, or cessation of motion to that person, or to any substance that then comes into contact with that person’s body, clothing, possessions, or affects their sense of feeling. This can be done:

• by bodily power,
• by setting something in motion without further action, or
• by inducing an animal to move or stop.

 When does force become criminal force?

Force becomes criminal when it is intentionally used on another person without their consent, in order to commit an offence, or with the intention or knowledge that it will cause injury, fear, or annoyance.

 Are there any illustrations of criminal force?

• A unfastens a boat with Z in it, causing it to drift. If done without Z’s consent and with intention to cause injury, fear, or annoyance, it is criminal force.
• A lashes horses pulling Z’s chariot to quicken their pace. If done without Z’s consent with intent to cause injury, fear, or annoyance, it is criminal force.
• A stops a palanquin in which Z is riding, intending to rob Z. This is criminal force.
• A pushes Z in the street with intention to cause harm or fear. This is criminal force.
• A throws a stone intending it to contact Z or their clothes or belongings. If done with intent to cause harm, it is criminal force.
• A pulls up a woman’s veil intentionally without her consent to cause annoyance. This is criminal force.
• A pours boiling water into a bath while Z is bathing, causing the boiling water to touch Z. This is criminal force.
• A incites a dog to jump on Z, intending to cause injury or fear. This is criminal force.

 What is an assault?

Assault is when a person makes a gesture or preparation intending, or knowing it is likely, to cause another person present to apprehend that they are about to use criminal force on them.

 Do words alone amount to assault?

No. Mere words do not constitute assault, but words can give meaning to gestures or preparations, making them amount to assault.

 Are there any illustrations of assault?

• A shakes his fist at Z intending to make Z believe he is about to be struck. This is assault.
• A starts to unleash a ferocious dog in a way that makes Z believe an attack is imminent. This is assault.
• A picks up a stick and says to Z, “I will give you a beating.” The gesture, combined with the words, may amount to assault.

 What is the punishment for assault or criminal force in general, when not on grave provocation?

The punishment may be imprisonment of either description for up to three months, or fine up to one thousand rupees, or both.

 Are there any exceptions where grave and sudden provocation does not reduce punishment?

Yes. Grave and sudden provocation does not reduce punishment if:

• the provocation was sought or provoked by the offender;
• the act causing provocation was done lawfully or by a public servant in lawful discharge of duty;
• the act was done in lawful exercise of private defence.

How is it decided whether provocation was grave and sudden?

It is a question of fact to be determined based on the circumstances.

What is the punishment for assault or criminal force against a public servant discharging their duty?

The offender shall be punished with imprisonment of either description for up to two years, or with fine, or with both.

What is the punishment for assault or criminal force with intent to dishonour a person, not on grave provocation?

The punishment may be imprisonment of either description for up to two years, or fine, or both.

 What is the punishment for assault or criminal force during an attempt to commit theft of property carried by a person?

The person shall be punished with imprisonment of either description for up to two years, or with fine, or both.

 What is the punishment for assault or criminal force in an attempt to wrongfully confine someone?

The punishment may extend to imprisonment of either description for up to one year, or fine up to five thousand rupees, or both.

 What is the punishment for assault or criminal force on grave and sudden provocation?

The person shall be punished with simple imprisonment for up to one month, or with fine up to one thousand rupees, or both.

Therefore, the provisions under the Bharatiya Nyaya Sanhita, 2023, dealing with wrongful restraint, wrongful confinement, criminal force, and assault reflect a continuity of legal philosophy with nuanced refinements to meet the evolving standards of justice. By categorizing offences based on intent, duration, and purpose such as extortion, concealment or dishonour, the law offers a layered and proportionate response to violations of personal liberty and dignity. The detailed illustrations and explanatory clauses assist in the practical application and interpretation of these offences, making the provisions both accessible and precise.

 Muneeb Rashid Malik is an Advocate.

He tweets @muneebmalikrash.