ABDUCTION

Abduction: Breach of Freedom

 

I. Meaning:

‘Abduction’, a word that creates fear in the minds of people and is nearly snatching the headlines of every newspapers recently. According to –Oxford Dictionary, ‘The abduction is the action of taking someone away by force, threat, or deceit against their will’, and is typically done to earn benefits from the family or victim who is abducted in order to set them free. It is a serious global issue. Abduction not only creates fear in the mind of a victim but can also harm a person physically, mentally and psychologically in entirety. There are many strict laws established in countries around the world to curb acts of abduction. The impacts of abduction may lead to depression and cause degeneration of brain cells to the victim.

• Section 359: Kidnapping

 Kidnapping is of two kinds: Kidnapping from India, and kidnapping from lawful guardianship. But these both types can overlap each other. For example ‘A’ minor boy was kidnapped by ‘B’ from the lawful guardianship of ‘C’(without his consent) and taken ‘A’ to beyond the limit of India. Hence, this act will attract the provisions of sec. 360 & 361 of IPC.

• Section 360:  Kidnapping from India

Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. 

Essentials of sec. 360 are: -

1. Conveying any person beyond the limit of India:- The person who is kidnapped can be a major or a minor to attract the provision of this section. In the case of minor, age limit is 16 for boy and 18 for girl. Further India means the territory of India excluding the state of Jammu and Kashmir as per sec. 18 IPC.
2. Such Conveying must be without the consent of that person: -  Age of a person is deciding factor to determine the offence, but consent is also relevant in case of major person. For example, if a person has attained the age of majority and has given his free consent to his being conveyed, no offence is committed. Consent is irrelevant in case of minor.

• Section 361: kidnapping from lawful guardianship

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation. —The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Essentials: -

1. Taking or Enticing: -  the word ‘takes’ means to cause to go, to escort or to get into the possession; it does not imply force, actual or construction. The word ‘entice’ involves an idea of inducement by exciting hope or desire in the order. One does not entice another unless the latter attempted to do a thing which he or she would not otherwise do. This is the key difference between taking and enticing. For example, Persuasion by the accused person which creates willingness on the art of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract to the provision of this section[i]. Moreover, duration is immaterial in this section.
2. A minor or any person of unsound mind: - the person kidnapped must be a minor i.e. a boy under the age of 16 and a girl under the age of 18 or must be a person of unsound mind. The unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic excess or other reason. For example, where a girl aged 20 years had been made unconscious from dhatura poisoning when she was taken away, it was held that accused was not guilty of kidnapping because the girl could not said to be of unsound mind .
3. Out of the keeping of lawfulguardian: -the word ‘Keeping’ simply denotes that a minor is within the due care and protection of the guardian. It is not necessary that a minor should be in the physical possession of the guardian. It would be enough if a minor is under a continuance control which is for the first time terminated by the act of offender. moreover, there is difference between legal guardian and lawful guardian. When a father sends his son to school with, here father is a legal guardian and servant or friend is lawful guardian for that matter.
4. Without the consent of such guardian: -The act of taking or inciting a minor to keep him/her out of the custody from guardian should be done with free consent as per the section 90 of IPC. The consent of the minor is irrelevant. The consent can be implied and need not to be express. In addition to that, if a consent is obtained after the commission of an offence so can’t be used as a good defence. Hence, it is immaterial.

• Section 362: Abduction

Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Section 362, of Indian Penal Code defines Abduction as, ‘Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.’ Though the definition of abduction is in provided in its literal sense, but the reasons and types are many. Abduction not only means to bring a person forcefully without his will but it can also be done by successfully persuading the victim and take him with his consent. In the case of Bahadur Ali vs King Emperor, the abductor misrepresented himself as a police constable and abducted a girl by ‘persuading’ her to stay in his house and demanded for a ransom of Rs.600. It was held that his act amounts to abduction.

According to penal provisions of the Indian Penal Code,1860;

Section 364, states the punishment for abduction in order to murder, i.e. 10+ years of  imprisonment and fine.

Section 365, states the punishment for abduction with intent to wrongfully confine a person, i.e.7 years and fine.

Section 366, states the punishment for abduction for compelling a women to marry, i.e. 10 years and fine.

A. Child Abduction and Abduction in pursuance of marriage:

Child abduction is the most committed crime globally as it is an easy task for any abductor to convince a child who is not so mature to make right decisions. According to the law, an abducted person can be anyone, of any age. It can be a child or an adult or an elderly person too. The grounds of abduction encapsulates from child abduction to  abduction in pursuance of marriage. Statistically, ‘Child Abduction’ is the most committed abduction in the world. It is the action of removing a child from the safe custody of his/her parents usually by compelling, and sometimes by means of violence. It is usually done for the ransom or satisfy any form of enmity. Child abduction can either be done by a stranger or by their own parents. Though it is reckoned that abduction by strangers sustain more attention but it shall also be taken a note that, child abductions by family members itself including the child’s own parents or non-custodial parents is also prevalent. Child Abduction is however common in custodial battles amongst divorced parents and families therewith.

Child abductions are more complex to deal with when they are done by a stranger. It is indeed a crime that can spoil the future of anyone and may even affect the moral, mental, physical and psychological well-being of a person. In addition; psychologists have found two distinguishing kinds of behavior in the child subjected to abduction. These are frozen fright and infantilism. Initially, a hostage suffering from frozen fright condition may have paralysis of common emotions. Later, the victim develops regressed behavior, such as too much dependence on the abductor.

On the other hand, abduction in pursuance of marriage, refers to the act where a bride is abducted by the groom or anyone connected therewith to halt her due process of marriage that is being conducted presently or is subjected to be so conducted in the near future; against her will. The other kind of abduction includes ‘express abduction’, where to a ransom is being demanded expressly from the near and dear ones of the person so targeted of abduction.

Other types of Abduction

1. Marriage by Abduction :

Marriage by abduction refers to a situation where a bride has been abducted against her parent’s wish and it is not necessary that she wants to marry her abductor. But in some cases, it is also possible that she herself iid interested in marrying the person who has abducted her.

2. Express Kidnapping :

Express kidnapping is a time of abduction where the abductor demands money before he returns the victim to his/her parents or loved ones.

Stranger kidnapping is another form of abduction and is often rare in number where the abductor doesn’t know the victim at all as in most cases of abduction the abductor knows the victim.

Express abduction is generally different from classic abductions as classic abduction basically involves detailed planning rather than being spontaneous in nature.

Moreover, classic abduction is a case where a large amount of money will be demanded and mostly wealthier people will be targeted to get it.

II. Difference between Abduction and Kidnaping:

Although the terms, ‘Abduction’ and ‘Kidnapping’ are used equivalently but there rests a precise difference in both of them. Kidnapping is basically snatching someone away from their family’s custody forcefully. However, a crime of abduction is when a person has been taken along from his/her original location by persuading him. Kidnapping is committed against a minor (who is below the age of 16). On the other hand, in abduction there is no given age as such, anybody can be abducted.

CASE LAWS  

1. Vinod Chaturvedi v. State of Madhya Pradesh, Ibid

In this case, the appellant had alleged that he had abducted the deceased named Brindaban. During the course of an investigation, it came out that Brindaban was persuaded by the accused and also particularly Vinod who went inside the house and came out properly dressed and accompanied the group to the village Rampura.

So, it was held that Brindaban Was not Abducted by those who were accused.

 

2. Allu, AIR 1925 L. 512

In this case, the person who was accused came to the rooftop of a house where a woman was sleeping.

They woke up the woman and asked her to accompany them but she refused. So they lifted her up and started carrying her away.

The woman raised an alarm and she was dropped down on the roof and they ran away.

In this case, they won’t be accused of an abduction as she was just lifted, and not forced to move from one place to another.

 

3. AIR 1952 Raj. 123

In this case, a girl who was 16 years old willingly goes out with the accused person for sexual intercourse and there is no evidence of any use of force or compulsion, so in this case, the accused will not be guilty of an abduction.

 

4. Fatnaya, (1942) 23 Lah. 470

It was held that where a woman is taken away by use of force against her wishes, it would be considered an abduction even if she was carried away with the object of restoring her to her husband.

5. Natha Singh (1883)P.R. No. 11 of 1883

It was held that if a married woman by way of her own consent is being abducted in such a case, no one will liable for the offense of abduction.

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CHILD TRAFFICKING

According to UNICEF a child victim of trafficking is any person under 18 who is recruited, transported, transferred, harboured or received for the purpose of exploitation, either within or outside a country. Female children are trafficked for marriage, sex-work, criminal activity, adoption and organ trade whereas male children are trafficked mainly for labour and exploited as beggars. Sometimes, trafficked children are also recruited into armed groups or for criminal activity.

Case Study

A girl child saved from being trafficked

Meena, 14-year old had been trafficked from Gurugram to Itawain Uttar Pradesh. CHILDLINE team Aligarh received a call from Gabhana Police Station that a girl child was found. Project Coordinator and CHILDLINE team member reached the spot and met the child. On interrogation, it was revealed that a man named Kallan, who works nearby her home and was known to her parents had brought her there to show her a temple. But he had some other intentions as after their temple visit, he took her to an Ashram where they stayed a night and in the morning boarded a bus. The girl questioned the man but was scolded and made to stay silent. As the bus passed by Gabhana area, the man misbehaved with the child and she started crying. This alerted the bus driver and other passengerswho asked the girl and stopped the bus at Gabhana Police Station. They handed over the child and the man to the police. Gabhana Police arrested the man, called CHILDLINE team and handed over the childto the team for care and protection. CHILDLINE team Aligarh then searched for the child’s address and informed the concerned Police Station of Badshapur in Gurugram. It was found that child‘s father had already filed a missing person FIR. Then CHILDLINE team co-ordinated with Badshapur Police and contacted the Gabhana Police. The Badshapur Police arrived with the parents to Aligarh. They arrested the man and took him under their custody. CHILDLINE team presented the child and her parents to Child Welfare Committee (CWC) Aligarh. For the best interest of child, the CWC restored the child to her parents and transferred her case to Gurugram CWC for further trial and investigation.

(*Name and details changed to protect the child)

MISSING

Countless number of children go missing every year. The category of missing children include a number of possible reasons such as abduction or kidnapping of children by family members and by non-family members, run-away children or those forced to run away by family and surrounding circumstances, children who are in a difficult or aggressive environment, trafficked children or lost children. Missing children often end up on the streets in poverty.

case study

Lost child found at railway platform

CHILDLINE team received a call from a Railway Police Force (RPF) PSI, who informed them about a missing child and asked for help. On the same day CHILDLINE team reached RPF Valsad, where they were informed that they found the child alone in an Ahmedabad passenger train. On enquiry, the child informed them that he was travelling with his uncle to Ajmer from Surat station, but his uncle had left him in the train. When asked for his Surataddress, he gave an address of Kadodra Char Rasta, Bhavani. CHILDLINE team Valsad immediately informed CHILDLINE team Surat to locate the address given by the child. CHILDLINE team Valsad along with RPF Valsad started the documentationprocess and presented the child to the Child Welfare Committee (CWC). The child was shifted to Children Home Dharasana with RPF protection on orders of the CWC. CHILDLINE team Valsad also got involved in locating the child’s home. Further coaxing resulted in the child sharing his brother’s contact detail with the superintendent of the Children Home. The CHILDLINE team called the number on the same day that they received it from the superintendent and informed his brother of the situation. They were also able to get their father’s contact number and address. The child’s father was contacted. The father expressed his inability to come to Valsad and requested that the child be handed over to his brother. This information was shared with the CWC. The brother took custody of the child after his documents were verified.

(*Name and details changed to protect the child)

CHILDLINE Helpline

https://www.childlineindia.org/

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III. CONCLUSION:

Abduction comes in all forms of different shapes and have its own crying degrees of cruelty. It is truly said that a person’s safety lies in his own hands. Cases like abduction can only be reduced when the root cause of it will be cleared. Though there are already different laws executed by the legislature for safety and prevention of such crimes but apart from the state’s prevention, the citizens should also make sure that no one is trying to convince them in a wrongful way. As reckoned generally; “Prevention is better than cure”. Specially in the matters concerning children, parents should be careful with their child’s safety & security. They should make sure that nobody is trying to attract their child through any smart, greedy techniques.