About this topic
A useful puzzle to start with: can a person be wrongfully confined inside a car moving through the city at 60 kilometres an hour, with no locked room, no wall and not even a fixed place? The answer depends on two offences in the B.N.S., 2023:
- Wrongful restraint: Section 126
- Wrongful confinement: Section 127
Restraint is a road block; confinement is a cage. A road block closes one way. A cage closes every way.
Wrongful Restraint: Section 126
Definition: Section 126(1)
"Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
Ingredients
The definition has three parts:
- Voluntary obstruction. The obstruction must be voluntary. Under Section 2, "voluntarily" means the accused intended the result, or knew or had reason to believe that it was likely.
- Actual prevention. The obstruction must actually stop the person from proceeding. It may be done by a physical barrier or by a threat.
- Right to proceed. The person must have a right to go in that direction. Without that right, there is no offence.
Prince owes his housing society maintenance charges. On the secretary's orders, the guard blocks the only gate to his building. Prince can go back to the street, but not towards his own home, where he has every right to go. This is wrongful restraint. A money dispute gives nobody the power to block a path.
Exception: obstruction of a private way
Not every property quarrel is a crime. Section 126 carries an Exception:
"The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."
Conditions for the Exception:
- The way must be a private way, over land or water.
- The person must believe he has a lawful right to obstruct it.
- The belief must be in good faith, which under Section 2 requires due care and attention.
Farhan, a fish farmer, finds a boatman using the canal between his ponds as a short cut. Farhan checks his land papers, honestly concludes that the canal is private, and ties a rope across it. Even if a civil court later finds that a right of way exists, Farhan has committed no wrongful restraint: his good-faith belief brings him within the Exception.
Wrongful Confinement: Section 127
Definition: Section 127(1)
"Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said 'wrongfully to confine' that person."
Confinement is built on restraint
- Wrongful confinement begins with a wrongful restraint.
- Circumscribing limits means a boundary that closes a person in on all sides.
- In the housing society example, Prince was only restrained, not confined, because the street behind him was open.
Every confinement contains a restraint, but a restraint becomes confinement only when every way out is closed.
The boundary need not be physical
The boundary need not be made of bricks. The Sanhita itself gives this illustration:
"A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z."
The doors are open, yet Z cannot leave. Fear has become the wall.
Punishment for the Basic Offences
- Wrongful restraint, Section 126(2): simple imprisonment only, up to 1 month, or fine up to 5,000 rupees, or both.
- Wrongful confinement, Section 127(2): imprisonment of either description (simple or rigorous) up to 1 year, or fine up to 5,000 rupees, or both.
Restraint and confinement compared
| Point | Wrongful restraint | Wrongful confinement |
|---|---|---|
| Provision | Section 126 | Section 127 |
| Image | A road block | A cage |
| Ways closed | One direction in which the person has a right to proceed | Every way out; the person is held within circumscribing limits |
| Relationship | The basic offence | Built on restraint; every confinement contains a restraint |
| Basic punishment | Simple imprisonment up to 1 month, or fine up to 5,000 rupees, or both (Section 126(2)) | Imprisonment of either description up to 1 year, or fine up to 5,000 rupees, or both (Section 127(2)) |
Aggravated Forms of Wrongful Confinement
Four questions make the "cage" heavier:
- How long? (duration)
- Was release ordered? (a writ for liberation)
- Was it hidden? (secrecy)
- Why? (purpose)
In all the remaining sub-sections, imprisonment may be of either description.
1. Duration: Section 127(3) and (4)
- Section 127(3): confinement for 3 days or more is punishable with imprisonment up to 3 years, or fine up to 10,000 rupees, or both.
- Section 127(4): confinement for 10 days or more is punishable with imprisonment up to 5 years, and the offender "shall also be liable to fine which shall not be less than ten thousand rupees." The fine here cannot be less than 10,000 rupees.
2. Confinement despite a writ for liberation: Section 127(5)
The question here is whether a court had already spoken.
"Whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of that person has been duly issued, shall be punished with imprisonment of either description for a term which may extend to two years in addition to any term of imprisonment to which he may be liable under any other section of this Chapter and shall also be liable to fine."
Essentials
- A writ for the liberation of the person must exist. The best known writ for liberation is habeas corpus.
- The writ must be duly issued, that is, properly issued by a competent court.
- The offender must know of the writ.
"This Chapter"
"This Chapter" means Chapter 6 of the B.N.S., on offences affecting the human body, which also covers hurt and grievous hurt. The extra 2 years therefore sit on top of any punishment under that Chapter, and fine is also payable.
Zoya, an adult, marries against her family's wishes. Her relatives lock her up. Her husband files a habeas corpus petition, and the High Court orders her release. If the relatives receive the order and still hold her, they face the extra term under Section 127(5). If they truly never knew of the order, Section 127(5) does not apply, though the wrongful confinement itself is still punished.
3. Secret confinement: Section 127(6)
The offender gets imprisonment up to 3 more years, in addition to any other punishment for that confinement, and is also liable to fine, if the person is confined in a way that shows an intention that:
- the confinement may not be known to anyone interested in that person, or to any public servant; or
- the place of confinement may not be known to or discovered by them.
Continuing the earlier example, suppose Zoya's relatives move her to a farmhouse near Alwar, switch off her phone and tell the police she has gone abroad. This shows an intention to keep the confinement and its place hidden, attracting Section 127(6).
4. Purpose: Section 127(7)
Confinement to extort property or to constrain an illegal act
"Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
The purposes covered:
- extorting any property or valuable security;
- constraining a person to do anything illegal;
- constraining a person to give information which may facilitate the commission of an offence.
The pressure may fall on the captive or on someone interested in him (someone who cares about him). Punishment: imprisonment of either description up to 3 years, and fine.
Robbers lock up a bank cashier's wife until the cashier reveals the vault code. The confinement is meant to make a person interested in the captive give information that facilitates an offence.
5. Purpose: Section 127(8)
Confinement to extort a confession or to compel restoration
"Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
The purposes covered:
- extorting any confession, or any information which may lead to the detection of an offence or misconduct;
- constraining a person to restore, or cause the restoration of, any property or valuable security;
- constraining a person to satisfy any claim or demand;
- constraining a person to give information which may lead to the restoration of any property or valuable security.
Punishment: imprisonment of either description up to 3 years, and fine.
Because of the word "misconduct", Section 127(8) is not limited to the police. And because "any claim or demand" is covered, even a genuine claim does not justify confinement.
A hostel warden locks a student, Aadil, in a store room until he admits taking a laptop. The warden commits this offence, however sure he may be of Aadil's guilt.
A lender with a genuine loan locks up a borrower until he pays. This is also covered, because any claim or demand falls within Section 127(8).
Aggravated forms at a glance
| Provision | Aggravating factor | Punishment |
|---|---|---|
| Section 127(3) | Confinement for 3 days or more | Up to 3 years, or fine up to 10,000 rupees, or both |
| Section 127(4) | Confinement for 10 days or more | Up to 5 years, and fine not less than 10,000 rupees |
| Section 127(5) | Confinement knowing that a writ for liberation has been duly issued | Up to 2 years in addition to any other term under Chapter 6, and fine |
| Section 127(6) | Secret confinement (hidden from interested persons or public servants, or place hidden) | Up to 3 years in addition to any other punishment for that confinement, and fine |
| Section 127(7) | Purpose: extort property or valuable security; constrain an illegal act; obtain information facilitating an offence | Up to 3 years, and fine |
| Section 127(8) | Purpose: extort confession or information on an offence or misconduct; compel restoration of property; satisfy any claim or demand | Up to 3 years, and fine |
In all of these, imprisonment may be of either description.
Link with Sections 119 and 120
The purposes in Section 127(7) and (8) mirror Sections 119 and 120, which punish voluntarily causing hurt or grievous hurt for the same kinds of purposes. Chapter 6 uses one list of wrongful purposes twice: once when the weapon is pain (Sections 119 and 120) and once when it is a locked door (Section 127(7) and (8)).
Both provisions can be charged together. If the warden in the example above also slaps Aadil, he can be charged under the hurt provision as well as under Section 127(8).
Solving the Puzzle: Confinement in a Moving Car
Neha books a cab at night. The driver switches on the child lock, ignores her requests to stop, and keeps driving. The car is moving, but the boundary moves with her, and every way out is closed. This is wrongful confinement.
Nothing in Section 127 says that the circumscribing limits must stand still. A moving boundary, such as a locked moving car, can confine a person.
Quick revision
- Wrongful restraint (Section 126) closes one way; wrongful confinement (Section 127) closes every way.
- Wrongful restraint needs a voluntary obstruction, actual prevention, and a right to proceed in that direction.
- Exception to Section 126: good-faith obstruction of a private way over land or water.
- Basic punishment: restraint, simple imprisonment up to 1 month or fine up to 5,000 rupees or both (Section 126(2)); confinement, either description up to 1 year or fine up to 5,000 rupees or both (Section 127(2)).
- Fear can be the wall, and the boundary may move: a locked moving car can confine.
- Four questions decide the weight of the cage:
- Time: 3 days or more (Section 127(3)); 10 days or more (Section 127(4)).
- A court's order: confinement knowing of a duly issued writ for liberation (Section 127(5)).
- Secrecy: confinement intended to be hidden (Section 127(6)).
- Purpose: extortion or constraining an illegal act (Section 127(7)); confession or restoration of property or satisfying a claim (Section 127(8)).
