Law of Crimes I: Penal Code

Wrongful Restraint and Wrongful Confinement

Submitted By

Prabhnoor Guliani

Division: E Roll no.: 18010223095 Course: BA. LLB of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune.

In

January, 2020

Under the guidance of

Ms. Meera Matthew and Mr. Vikram Singh

Assistant Professors
 CERTIFICATE

The project titled “Wrongful Restraint and Wrongful Confinement” submitted to the Symbiosis Law School,
NOIDA for Law of Crimes Paper I: Indian Penal Code as part of Internal Assessment is based on my original
work carried out under the guidance of Ms. Meera Matthew and Mr. Vikram Singh from December, 2020 to April,
2020.

The Research work has not been submitted elsewhere for award of any degree. The material borrowed from other
sources and incorporated in the research paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate

Date:
 Acknowledgements

I would like to express my special thanks of gratitude to Ms. Meera Matthew and Mr. Vikram Singh for their
explicable support and encouragement throughout this endeavor. I would also like to thank our Director, Dr
Chandrashekhar J. Rawandale who has given me this opportunity to do this important research on wrongful
restraint and wrongful confinement. It has indubitively helped me in my research and attain immense knowledge
and enhanced my legal knowledge even further. I am really thankful to both of them. Secondly, I would also like
to thank my friends who have helped me completing this project in a limited time frame.
 INDEX

Contents
Introduction.............................................................................................................................................................. 5
Research Questions .................................................................................................................................................. 6
Wrongful Restrain Explained .................................................................................................................................. 6
Wrongful Confinement Explained ........................................................................................................................... 7
Jurisprudential Aspect of the Study ......................................................................................................................... 9
Proposals for Reform ............................................................................................................................................. 10
 Introduction
Wrongful restraint and wrongful confinement are offences that are related to offences which restrict a person’s
freedom or motion. It can be wholly or partial restriction on the movement of a person although there are certain
exceptions where a person will not be liable under Sections 339-348 of Indian Penal Code, 1860. Wrongful
restraint is defined under Section 339 and made punishable under Section 341 of IPC. On the other hand wrongful
confinement means restraining a person in such a manner so as to prevent the person from proceeding beyond
certain circumscribing limits, as defined under Section 340 of the Code and is specifically punished under Section
342. Though both of these are similar concepts but they have their own differences which need to be highlighted
in the court of law in order to penalize the guilty under the respective code established. in wrongful restraint a
person is barred from entering a place or a particular direction where s/he has a right to go but a person is free to
go somewhere else, however this includes the exception for private property where a person cannot enter the
private property of another individual without having the consent of the owner first or else it will amount to
trespass. Wrongful confinement on the other hand is a form of restraint where a person is barred from going in all
directions beyond a certain area. There are further aggravated forms of wrongful confinement extending from
Section 343 to Section 349.

In order to commit the crime of wrongful restraint there are certain essential elements that constitute the said
offence:

1. Voluntary restriction of the person.

2. The obstruction is in such a manner that it prevents a person to proceed in any direction where the person
has a right to proceed.

On the other hand, following are the essential ingredients of a wrongful confinement are as follows:
 1. Wrongful restraining of the person
2. The restraining must be such that the person can only move in a limited amount of space beyond which
the person has full rights to move freely.
3. The restrain caused here should be whole and not partial

Research Methodology

For this research method I have opted for secondary sources of information. Secondary research involves the
depiction and analysis of the already existing data and is often used to compare the data with primary research.
Secondary research methods offer sources like research journals, articles, textbooks, internet and other sources.
They are basically the resource material that was not experienced by someone first hand and is relying on the
accounts of all those people who did the primary research and we compile everything to form a new kind of
account, basically from an outsider’s perspective.

Research Questions
Q1. What are the main point of differences between Wrongful Restraint and Wrongful Confinement?

Q2. What is the Jurisprudential aspect of restricting human liberty to move freely?

Q3. Why is there a demand to make improvement on the already existing laws of wrongful restraint and wrongful
confinement?

Wrongful Restrain Explained

Wrongful restraint is an offence where an obstruction is caused to the movement of a person where a person is
in full rights to move. It could be a physical obstruction or a verbal order barring a person to move freely but it
must be remembered that mere demonstration will not constitute wrongful restraint 1. In wrongful restraint the
physical presence of the guilty is not really required as one could wholly restrict the entry of a person by using a
lock or any other means that can cause restraining upon an individual2. If we take the example of a house where
the landlord has barred his tenant from moving into a specific room and keeps that room locked, it will not come

1
Re Subba Row (1908) 8 CrLJ 182 (Mad)
2
Arumuga Nadar vs Emperor (1910) 11 CrLJ 708(Mad)
under wrongful restraint even though the tenant is within his full rights to move freely into the portion he has been
assigned. This is because the main entrance gate is not harmed and it gives sufficient amount of passage to the
tenant to walk in in or out3.

The wrongs committed in this offence are only defined against a wrong committed against another person and not
against other living things like animals. Therefore if a person has a bullock cart and he is obstructed to proceed
further let’s say in a particular area then there will be no wrongful restrained committed against the said person
because he is still allowed to proceed in the area without an animal 4. Although here wrongful restraint will be
committed of the person is not allowed to bring and use his bullock carts for example, tilling of land for growing
crops and if he is restrained from working in the field and might be beaten away then the complainant can press
charges against the respondent under Section 3395. It is also defined under this Section that obstruction caused to
a vehicle alone will not constitute a wrongful restraint as this Section only deals with obstruction caused to a
person and not their belongings like animals or vehicles. Although there are certain exceptions to this kind of
restraint as well. For example a car parked in a particular location is obstructed and ordered to be moved to a
different location will not amount to wrongful restraint but if a vehicle full of passengers is denied from entering
into an area does amount to wrongful restraint no matter if the passengers are allowed to move outside the vehicle 6.

Lastly it is important to remember that here the offence is committed under wrongful restrained is determined by
the effect caused and not by the nature of the act which causes the restrain to the victim in the first place 7. A
person found guilty for committing an offence of wrongful restraint under Section 339 of IPC shall be punished
under Section 341 of IPC with imprisonment upto one month or a fine of Rs. 500 or both.

Wrongful Confinement Explained

Wrongful Confinement is defined under Section 340 of Indian Penal Code, 1860 where a person is wrongfully
restrained and not allowed to move beyond certain circumscribing limits. The restraint caused in this case should

3
Shankar Chandra Ghosh vs Roopraj S Bhansalee (1981) CrLJ 1002 (Cal)
4
Ram Laia (1912) 15 Bom LR 103
5
Madala Periah vs Vorungati AIR 1954 Mad 247, (1954) CrLJ 283 (Mad)
6
Madhab vs Nalini AIR 1964 Cal 286
7
Raja Ram vs State of Haryana (1971) 3 SCC 945
be whole and not a partial one8. Wrongful confinement is often committed in relation to kidnapping or abduction
of a person. If we look at Deep Chand vs State of Rajasthan9 the son of a wealthy business man was wrongfully
taken away from his home and confined to a house for 17 days in exchange for ransom and only released the
victim after receiving the money. Sometimes wrongful confinement can also be committed by public servants like
the police as in the case of Shyam Lal Sharma vs State of Madhya Pradesh10 where the victim was seized and
lifted by force and thrown on a chair by an inner circle police officer. He was confined there and threatened with
a beating until he met the demands the demands of the officer. The Supreme Court however laid down the decision
based on the behavior of the accused and was therefore convicted under Section 342 and Section 353 of the Code.

All the acts committed under this offence can be of various types whether it is through taking away of a person
against their will or through the hands of a public servant or confining of public servants 11, or confining of a
person in his workplace12 and many others need to be looked from a level of least leniency otherwise the
establishment of law and government shall hold no meaning, therefore it is commanding that deterrence sentence
should be levied. In the circumstances where the petitioner will have to serve the sentence, the punishment for
with fine of upto Rs. 1000 and/or suffer an imprisonment of upto 2 months. On the other hand, the respondent
found guilty of committing wrongful confinement shall be punished under Section 342 of the Code with rigorous
imprisonment of upto one year and/or a fine upto Rs. 1000.

There are however more brutal and aggregated forms of wrongful confinement which have been defined under
various sections of the Indian Penal Code regarding the number of days the person was confined. Section 343 is
only limited to3 days or more of wrongful confinement and the guilty shall be either imprisoned for upto 2 years
in prison and possibly along with fine. Section 344 is for wrongful confinement of 10 or more of confining an
innocent victim shall be punished with punishment upto 3 years and possible fine. Section 345 is related to the
liberation of a person whose writ has been issued by court of law and is still confined, they shall be punished for
a period upto 2 years in addition to whichever of the above sections he is liable. Section 346 calls for confinement
in secret which may extend upto 2 years in addition to fine. Section 347 deals with wrongful confinement in order
to extort property. Confining any person and constraining them in interest of property is dealt with under this
section of the Code and its punishment may extend upto 3 years with fine. And lastly, the last form of aggravated

8
Raju Pandurang Mahale vs State of Maharashtra AIR 2004 SC 1677, SC 1677, (2004) SCC 371
9
AIR 1961 SC 1527
10
AIR 1972 SC 886, (1972) 1 SCC 764
11
Shamsudheen vs State of Kerela (1989) CrLJ 2068 Ker
12
Jay Engineering Works vs State of West Bengal AIR 1968 Cal 407
wrongful confinement is under Section 348 of the Code where a person is wrongfully confined by an authority to
take out confession, the guilty shall be liable for upto 3 years in prison with possibly a fine.

Jurisprudential Aspect of the Study

Wrongful restraint and confinement are both offences which restrict the liberty of an individual to move freely.
One of the first revolutions that took place in this world that concentrated on the concept of free movement of an
individual was during the French Revolution of 1789 that actually highlighted the broader concept of liberty.
Although initially the 17 articles of Declaration of the Rights of Man and Citizen13 did not extensively provide
the right to freedom of movement or to even leave the country but later in French Constitution of 1791 provisions
were made regarding freedom to move everywhere as one may please without living in the fear of being halted or
arrested in accordance with procedures established by law. However philosophers from the earliest times have
portrayed their views on liberty and restraint of human movement. A Swiss lawyer and philosopher Emmerich de
Vattel concluded in his book that people should be allowed to quit the society or just leave a country because
every man is born free and should only join the society when it is convenient for them for which the man was
destined by birth to join. If the individual is unwilling then he is at liberty to quit without making it a compensation
of all what the society has done for him14. Another Swiss philosopher Jean Jacques Rousseau, believed that a
person should only renounce allegiance to the state if he does not leave to escape his obligations and serves his
country when in need. Flight of a person during the time of need should be seen as a criminal offence as per his
philosophy15.

John Locke on the other hand presented an idea a little different from Rousseau where he regarded leaving one’s
country as the means through which one can refuse consent to be a part of that country’s political, social and
economic community. He believed in the concept of self-governance and individual self-determination16.
According to the classical thought of Socrates envisioned by Plato, he wrote, “we further proclaim to any Athenian

13
Declaration des droits de l’homme et du citoyen (26 August 1789).
14
Law of Nations Chapter 19 Pg 220
15
Jean-Jacques Rousseau, The Social Contract (George Douglas Howard Cole trans, Cosimo Classics, 2008) 101 n 33 [trans of: Du
Contrat social (first published 1762)]. See also UDHR art 29; ICCPR art 12(3).
16
Inglés, above n 31, 9, suggests that UDHR art 13(2) ‘may very well be regarded as the right of personal self-determination’. He notes
that other articles of the UDHR have a direct and important bearing upon the subject, including those protecting the right to liberty and
freedom of association.
by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways
of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws
will forbid him or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a
colony or to any other city, may go where he likes, retaining his property”17. Epictetus in his writings had
projected freedom in such a way that it was limited to only a few male adults where they described themselves as
going wherever they will to go and hence the Greek empire became the first to travel freely without any
constraints. Therefore, it led to intermingling of several countries in the Mediterranean region. Similar concept
rose later in the Roman Empire.

Proposals for Reform

In the Indian system it has been suggested that there is a need for the enhancement of laws for wrongful restraint
and confinement. So far the Fifth Law Commission has suggested no changes in the existing laws from Section
339 to Section 348, however recommendations are afloat that changes should be made and enhance the existing
punishment which are the following:

1. The existing amount of fine should be increased from Rs.500 to Rs.1000 for wrongful restraint.
2. There should be mandatory and rigorous imprisonment for at least 1 year (with or without fine) and this
punishment should be provided in cases where the offence was committed by 10 or more persons.
3. The punishment for wrongful confinement should have fine of an unlimited amount instead of Rs.1000
4. The sentence must extend to 3 years in cases of wrongful confinement where the crime was jointly
committed by 10 or more persons.

The Indian Penal Code Amendment Bill, 1978 was created with a purpose of incorporating the gradation of the
punishments for wrongful restraint and confinement. The 14th Law Commission also endorsed these proposals for
reform but the bill lapsed due to dissolution of the Lok Sabha in 1979.

17
Crito 51d–e, quoted in Sharon M Meagher, Philosophy and the City (State University of New York Press, 2008) 22.