SOME IMPORTANT CASE LAWS ON KIDNAPPING AND ABDUCTION
1.
S Varadarajan v State of Madras AIR
1965 SC 942
A girl who was on the verge of
attaining majority, voluntarily left her father’s house, arranged to meet the
accused at a certain place and went to the sub-registrar’s office, where the
accused and the girl registered an agreement to marry. There was no evidence
whatsoever that the accused had ‘taken’ her out of the lawful guardianship of her
parents, as there was no active part played by the accused to persuade her to
leave the house. It was held that no offence under this section was made out.
2.
In State of Haryana v Raja Ram , AIR
1973 SC 819
The prosecutrix was a young girl of
14 years. She became friendly with a person called Jai Narain, aged 32, who was
a frequent visitor. When Jai Narain was forbidden by the prosecutrix’s father
from coming home, he sent messages through one Raja Ram. She was constantly
persuaded to leave the house and come with Jai Narain, who would keep her in a
lot of material comfort. One night, the prosecutrix arranged to meet Jai Narain
in his house and went to meet him where she was seduced by Jai Narain. Jai
Narain was convicted under s 376 for rape of minor and Raja Ram under s 366.
The question before the Supreme Court was whether Raja Ram could be said to
have ‘taken’ the minor girl, since she willingly accompanied him.
The Supreme Court held that it was
not necessary that the taking or enticing must be shown to have been by means
of force or fraud. Persuasion by the accused person, which creates willingness
on the part of the minor to be taken out of the keeping of the lawful guardian,
would be sufficient to attract the section. Persuading or soliciting a minor to
abandon legal guardianship at any stage by a person is sufficient to hold him
responsible under s 361, IPC.
However, ‘taking away’ is distinct
from ‘allowing’ a minor to ‘accompany’. The former, unlike the latter, implies
certain act ive role on the part of the accused in making the minor to leave or
keep out of the legal guardian. The word ‘entice’ connotes the idea of
inducement or pursuance by offer of pleasure or some other form of allurement.
This may work immediately or it may create continuous and gradual but
imperceptible impression culminating after some time in achieving its ultimate
purpose of successful inducement.
Inducing a minor girl by promise of
marriage to leave the house of her guardian amounts to enticement within the
meaning of the section.
The court observed that the word
‘keeping’, in the context, connotes the idea of charge, protection, maintenance
and control. It is not necessary that the minor should be under physical
possession of the guardian. It suffices for the purpose of the section if it is
under a continuous control of the guardian. Hence, a minor, who goes on a visit
either with or without consent of the guardian, or goes on street, still is in
‘keeping’ of the guardian, it goes ‘out of the keeping’ when it is driven away
from parental roof or control. The court compared it with the language used in
English statutes, where the expression used was ‘take out of the possession’
and not ‘out of the keeping’. The difference in the language between the
English statutes and this section only goes to show that s 361 was designed to
protect the sacred right of the guardians with respect of their minor wards.
3.
In Netra Pal v State (National
Capital Territory of Delhi) (2001) Cr LJ 1669 (Del),
the Delhi High Court, in a set of
peculiar facts, delved into some key words and ambit of s 364A of the IPC. The
raiding party recovered from the accused the kidnapped child and a letter
demanding ransom. He had neither posted the letter nor personally contacted the
family of the child for three days after kidnapping till he was arrested. The
high court held that mere ‘intention to demand ransom’ does not come within the
ambit of the words ‘to pay ransom’ used in the section, unless the demand is
translated into action of the accused by communicating his demand to the person
concerned. Unless the price of retrieval or rescue is made, the question to pay
ransom does not arise as the words ‘to pay’ warrant setting the demand for
payment in motion. The court, therefore, declined to convict the accused for
kidnapping for ransom as he, by keeping his letter of demand with him only, did
not convey his demand for ransom to release the child.
4.
In Malleshi v State of Karnataka
(2004) Cr LJ 4645 (SC),,
However, the Supreme Court, referring to the Netra Pal dictum,
ruled that there cannot be a strait-jacket formula that the demand for payment
of ransom has to be made to a person who ultimately pays. Even who pays the
ransom cannot be the determinative fact. The question to be decided, for
conviction under s 364A, is: ‘what was the intention, and was it demand of
ransom? Non-communication of the demand to pay ransom to the victim does not
take away the offence from the purview of s 364A.
5. Vikram Singh
v. Union of India, (2015 SC)
Facts and Issue: The
appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in ransom.
They had then killed this boy. In this case, the appellants filed a writ
petition in the Supreme Court to declare Section 364A inserted in the Indian
Penal Code as ultra vires (beyond the legal power) of the Constitution to the
extent that the same prescribes death sentence for anyone found guilty. He also
said that section 364 A was added only to deal with terrorist-related ransom
since kidnapping/ abduction has already been dealt with in the previous
section. He further prayed for quashing death sentence given to him under this
section.
Judgement:
The court
held that section 364A is very wide. There is nothing which suggests that this
section is limited to offences against a foreign state or international
governmental organisation, and covers all the “any other person” as well.
Court also
emphasised upon various Indian and foreign judgements to highlight the
importance of proportionality of punishment. It held that the job of giving
punishment is the job of the legislature, and the court can only intervene when
it feels that the punishment is outrageously disproportionate. In section 364A
however, when death is concerned the courts do reserve the right to give death
penalty or if not required, a lesser punishment of life imprisonment. Hence, it
is not ultra vires with the constitution.
6.
In Thakoral D Vadgama v State of
Gujarat , AIR 1973 SC 2313
Where a rich industrialist had induced a minor girl of 16 to
leave her home and come to his garage to have illicit intercourse with him. In
this case, the Supreme Court affirmed the conviction under s 366, IPC, passed
by the trial court and the Gujarat High Court. The accused came into contact
with the family of the girl’s father, held out hopes of appointing him as the
manager of a new factory, which he was going to start at Mount Abu and
Ahmedabad and stayed in big hotels spending lavishly. He also presented Mohini,
the concerned girl, with a Parker pen. Within a few days, thereafter, he
purchased by way of gifts for Mohini, skirt, silver waist band, etc. He was
actually found on Mohini’s bed by her mother at Mount Abu and his connection
with Mohini was suspected, and in spite of the mother’s grave protest, he was
in correspondence with her without the knowledge of her parents.
Mohini was a schoolgirl of immature understanding having
entered her sixteenth year less than a month before the incident, and out of
emotion, she wrote letters to the accused exaggerating incidents of rebuke and
beatings by her mother. The accused took advantage of her immature feelings and
induced her to come to his house on an appointed day. She came, and was taken
to his garage and then she was induced to go to the public road by the accused
when the police party came with her father. The accused falsely denied her
presence in his house but some of her clothes, her school exercise books, etc,
were taken from the garage, where she had been asked to remain by the accused.
The accused was given a lenient sentence of only rigorous imprisonment for 18
months.
The Supreme Court remarked that Mohini’s mother’s dignified
protest letter to the accused indicated how the mother of the girl belonging to
a comparatively poorer family felt, when confronted with a rich man’s
dishonourable behaviour towards her young impressionable, immature daughter,
who also suggested to render financial help to her husband in time of need.
The Supreme Court distinguished its earlier ruling in
Varadarajan’s case and explained the meaning of the expression ‘whoever takes
or entices any minor’ thus:
The word ‘takes’ does not necessarily connote taking by
force and it is not confined to the use of force, actual or constructive. These
words merely mean ‘to cause to go, to escort’ or ‘to get into possession’. No
doubt, it does mean physical taking, but not necessarily by use of force or
fraud. The word ‘entice’ seems to involve the idea of inducement or allurement
by giving rise to hope or desire on the other. This can take many forms, difficult
to visualize and describe exhaustively, some of them may be quite subtle,
depending for their success on the mental state of the person at the time when
the inducement is intended to operate. This may work immediately or it may
create continuous and gradual but imperceptible impression culminating after
some time, in achieving its ultimate purpose of successful inducement. The two
words ‘takes’ and ‘entices’ are intended to be read together, so that each
takes to some extent its colour and content from the other. The statutory
language suggests that if the minor leaves her parental home completely
uninfluenced by any promise, offer of inducement emanating from the guilty
party, then the latter cannot be considered to have committed the offence as
defined in s 361, IPC. But if the guilty party has laid a foundation by
inducement, allurement or threat, etc, and if this gain can be considered to
have influenced the minor or weighed with her in leaving her guardian’s custody
or keeping and going to the guilty party, then prima facie it would be
difficult for him to plead innocence on the ground that the minor had
voluntarily come to him.
Section 368. Wrongfully concealing or keeping in
confinement, kidnapped or abducted person.— Whoever,
knowing that any person has been kidnapped or has been abducted, wrongfully
conceals or confines such person, shall be punished in the same manner as if he
had kidnapped or abducted such person with the same intention or knowledge, or
for the same purpose as that with or for which he conceals or detains such
person in confinement.
7. In Smt Saroj Kumari v State
of Uttar Pradesh AIR 1973 SC 201,
the
accused had been charged of the offence of stealing a new born child from its
mother’s delivery bed in the maternity hospital, as the child was found in the
bedroom of the accused, although, she had not given birth to any new born
child. The Supreme Court upheld her conviction under s 368, holding that under
the circumstances, the inferences of concealment and guilt concurrently drawn
by the courts below were justifiable and correct
