Section 349 provides that “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 others’ sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion or cessation of motion in one of three ways hereinafter describe:-
Firstly:– By his own bodily power.
Secondly:– By disposing of 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.”
In Chandrika Sao v. State of Bihar
Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the accused for inspecting the records and books of accounts. He found two sets of account books being maintained in the shop. When he started turning the pages and looking into them, the accused suddenly snatched away both books from him.
The accused was charged under Section 353 of IPC. It was contended on behalf of accused that mere snatching of book did not amount to ‘use of force as contemplated by Sec. 349. Rejecting the plea of the accused the Supreme Court held that snatching away books from the Tax Superintendent amounted to use of force as it caused jerk to his hands and its sensation could also be felt by the hands and therefore, the accused was guilty of offence under Section 349 of IPC.
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 intentionally causes 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 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 produce 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 he 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.
Ingredients of this section
The force as defined in the preceding section becomes criminal force when
- it is used in order to the committing of the offence and is used without consent and
- when it is intentionally used to cause injury, fear or annoyance to some other person.
The term ‘battery of English law is included in ‘criminal force. The criminal force may be very slight as not amounting to an offence as per section 95. Its definition is very wide so as to include force of almost every description of which a person may become an ultimate object.
- Intentional use of force to any person;
- Such force should have been used without the consent of the victim:
- The force must have been used to commit an offence or with the intention to cause injury, fear or annoyance to the person to whom it is used.
- Where A spits over B, A would be liable for using criminal force against B because spitting must have caused annoyance to B.
- Similarly, if A removes the veil of a lady, he would be guilty under this section.
- A’ a house-owner tortured one of his tenants in order to compel him to pay his rent and realised his dues. Here A will be liable for using criminal force under section 350 of the Code and in case some hurt is also caused he may also be liable for causing simple or grievous hurt as the case may be.
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 gesture or preparation such a meaning as may 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 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 circumstances, might not amount to an assault , the gesture explained by the words may amount to an assault.
Causing of some actual hurt is not necessary for constituting assault.
Mere threat may constitute assault. The essence of the offence lies in the effect which threat creates in the mind of the victim. In view of the explanation mere words do not constitute assault. But use of words if accompanied with such gestures or preparation that may cause another to apprehend that criminal force is about to be used against him amounts to assault. Thus there must be some threatening physical act done by the accused by which he causes another to apprehend that criminal force is about to be used against him. The person threatening must be in a position to carry his threat into effect.
The following are the essential ingredients of this section:
1. Making of any gesture or preparation by a person in the presence of other
2. Intention or knowledge of likelihood 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.
- Making any gesture or preparation. – The apprehension of the use of criminal force must be from the person making the gesture or preparation, but if it arises from some other person, it would not be assault on the part of that person. Where A points a loaded pistol at B it would be an offence of assault.
In Muneshwar Bux Singh, the accused did nothing which may come within the meaning of assault but made such a gesture that his followers advanced a little forward towards the complainant in a threatening manner, he was not held liable for an offence under this section because criminal force cannot be said to be used by one person to another by causing only some change in the position of others.
- Intention or knowledge.-The gist of this offence is the intention or knowledge that the gesture or preparations made by the accused would cause such effect upon the mind of another that he would apprehend that criminal force was about to be used against him. Illustration (b) to this section is important in this respect.
Mere utterance of threatening words does not amount to assault.
In the case of Birbal Khalifa 1902, a person took a lathi and shouted that he will break the head of a police officer if he insists upon taking his thumb impression. He was not guilty of assault. But where a person shouts that he would be coming back and teach a lesson to the police officer and accordingly he comes back with a lathi, moves close to the police officer raising a reasonable apprehension that he was about to use criminal force, the accused would be guilty under this section.”
- A medical examination of a woman without her consent constitutes the offence of assault.
- Where a person throws brickbats into the house of another person, he would be guilty of assault.
- In the case of N. Arumugam v. A.V.M. Vilachanny 1994, the accused pointed a loaded revolver at the complainant threatening to shoot him but before he could shoot, the complainant managed to escape. Held, it would not be an offence of attempt to commit murder, but it would be an offence of assault under section 351 of IPC.