Assault is an act of one person causing another person to reasonably apprehend the infliction of criminal force against him. In Criminal Law, assault is considered as an offence and in Common Law, it is considered as a tort. But, in both the cases assault is considered as an act of threat by one person to cause harm to another person.
Illustrations:
1. Showing clenched fist against one person which makes him reasonably apprehend a blow at him by another, the assault is said to be committed.
2. A person is about to sit on the chair and the chair is pulled, the assault is committed.
Assault as an offence under IPC–
The Indian Penal Code, 1860 classifies assault as an offence under Chapter XVI which deals with offences affecting the human body. Section 351 of IPC defines assault as an offence and Section 352 of IPC prescribes punishment for the offence of assault.
Essentials of assault-
Section 351 specifies certain essential elements in order to constitute an offence of assault-
1. Any gesture or any preparation
2. Such gesture or preparation is intending or knowing it to be likely to cause any person to apprehend use of criminal force against him.
Making any gesture or any preparation:
It is essential that the accused must only make the gesture or prepare to cause harm to the victim. Hence, the apprehension of use of criminal force from the person making the gesture or preparation.
In Muneshwar Bux Singh,[i] the accused made some gestures at which his followers advanced a little forward towards the complainant in a threatening manner. It was held that the accused is not guilty of assault as his gestures did not cause apprehension of harm to the complainant.
Intending or knowing it to be likely to cause apprehension:
In order to constitute an offence of assault gestures or preparations made must have either-
1. the intention to cause harm to the other person or
2. the accused must have the knowledge of the harm apprehended in the event of making such gestures or preparations.
Further, the explanation provided to Section 351 of IPC clarifies that mere words do not amount to an assault unless the words intend immediate use of criminal force against the other person.
In the case of A.C. Cama v. H.F. Morgan[ii], it was observed that the usage of words cannot be considered as assault if the effect of the words clearly shows the party threatened that the party threatening has no present intention to use immediate criminal force.
Punishment for the offence of assault:
Section 352 of IPC provides for the punishment in cases of assault or use of criminal force.
General Rule
The punishment shall be imprisonment for a term which may extend to 3 months or fine which may extend to five hundred rupees or both.
Exception-
Assault or use of criminal force made under grave and sudden provocation given by the person apprehending such an offence. Further, the explanation to Section 352 of IPC prescribes that whether the provocation was grave and sudden enough to mitigate the offence is a question of fact.
In the case of State of Karnataka v. Kamalaksha[iii], the court observed that if mere words or gestures can cause grave provocation, there can be no manner of doubt that its possibility will be all the more filthy abuses is hurled.
Assault as a tort
Assault is considered as a tort under the common law regime. Assault as tort will be completed when one person by his act creates an apprehension in the mind of the other person that the former will be committing battery against the latter.
In R. v. S. George[iv], it was held that, even if the pistol is not loaded, it may cause assault when it is held in such a distance that, if loaded, it may cause injury.
Therefore, assault can be construed as a tort if there exists a prima facie ability to do the harm. It is thus considered that assault precedes battery, but it is not essential that every battery should include an assault. For example, if a person is knocked down by a hard blow from behind results in battery but it is not preceded by an assault as the victim had no apprehensions of such blow from behind.
In Stephens v. Myers[v], the act of showing clenched fist by the defendant towards the plaintiff was held to be assault. Further, in Pursell v. Horn[vi], throwing of water was held to be assault. But, if the water falls on the plaintiff, it amounts to battery. Assault becomes battery if the person apprehending the harm is inflicted with that harm as apprehended by him. Therefore, till the act remains to be a threat, it is considered as assault.
Frequently asked questions
Is assault under criminal law and tort the same?
The definition of assault as an offence and as a tort are the same, but the nature of the wrong is different. Under criminal law, assault is a crime and under common law, assault is a civil wrong. Therefore, the legal remedy will differ.
Should battery necessarily include assault?
No, if the victim was not in a position to apprehend as he was not aware of the use of criminal force by the accused against him, then battery will not include assault.
What is to be proved in order to constitute an offence of assault?
‘Intention’ or ‘knowledge’ of the accused about the harm that is inflicted on the victim if the criminal force is used immediately.
Edited by – Sakshi Agarwal
Approved & Published – Sakshi Raje
Reference
[i] (1938) 14 Luck 409.
[ii] (1864) 1 BHC
[iii]1978 CrLJ 290 (Karnataka)
[iv]9 C. & P. 483
[v] (1830) 4 C. & P. 349
[vi] (1838) 8 A. and E. 602
