By Tania Maria Joy
The literal meaning of abduction is the action of forcibly taking someone away against their will. Abduction is defined u/s 362 of IPC. This section merely gives a definition of the word ‘abduction’ which occurs in some of the penal provisions which follows . There is no such offence as abduction under the code, but abduction with certain intent is an offence. Force or fraud is essential.
Section 362 says that abduction can happen in two ways. One of these is force. In abduction, a person is forced to go from one place to another, against his/her will. The use of force, as mentioned in this section, must be actual, and not just a threat of force to constitute abduction.
In this reference, we can look at the case State of West Bengal v. Mir Mohammad Omar.
- The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do his business without any hindrance or obstructions. But Mahesh did not agree to their demands which led to a fight.
- A few nights later, when Mahesh returned to his house, his sister told him that a few assailants had come before looking for him, and were threatening to hurt him. Scared, Mahesh left to take asylum at his friend’s house for the night.
- Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar was waiting outside for him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a neighbour’s house where he took asylum.
- At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went and lodged a police complaint that very night.
The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.
According to Section 362, the other way abduction can take place is by inducing someone to go from someplace by misleading him/her to do something he/she would not normally do. The scope of inducement here is very wide.
Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offence of abduction.
To go from any place
For abduction to be completed, it is essential that the person is compelled to go from one place to some other place, either forcefully or by using deceitful means. It cannot be called abduction if the person is not taken to someplace.
Now let’s discuss an important judgement given in the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67. It was held that mere abduction is no offence at all. The guilty and wrongful intention must be present for the offence to be punishable.
For this very reason, IPC provides for different punishments for abduction with different intentions. Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years, abduction with the intention of murder is punishable with life imprisonment etc.
Section 365 of IPC provides for punishing a person who kidnaps or abducts someone with the intention of wrongfully and secretly confining them with imprisonment up to 7 years and fine.
Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such guardian, with the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with the intent of secret confinement, and thus, he is punishable under section 365 of IPC.
Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the intention to force her into a marriage or with the knowledge that she would be forced into marriage. It also provides punishment for a person who kidnaps or abducts a person to force her into illicit intercourse or has the knowledge that because of such kidnap or abduction, she would be forced into illicit intercourse.
The punishment prescribed in this section is imprisonment for up to 10 years and fine.
Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to. ‘A’ asked ‘B’ to abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offence under section 366 as he abducted a woman, ‘C’ with the knowledge that would be compelled into marriage.
Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl under the age of 18, to go from someplace or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such inducement must be done intentionally or with the knowledge that she will be forced to engage in such acts.
The punishment prescribed for the same is imprisonment for up to ten years and fine.
Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person, must be punished with either rigorous or simple imprisonment up to 10 years and fine.
Grievous hurt has been defined in section 320 of IPC. It includes:
- Emasculation (Removal of male reproductive organs),
- Permanently damaging eyesight in any eye,
- Permanently damaging hearing in any ear,
- Causing permanent loss of some joint,
- Permanent disfigurement of face or the head
- Fracture and dislocation of teeth or bone(s)
- Any hurt which endangers the life of a person and causes the sufferer to suffer severe body pain within twenty days of the causation of hurt.
Section 368 of the Indian Penal Code provides that if a person knows that a person has been kidnapped or abducted, and wrongfully confides in such a kidnapped person, would be punished as if he had kidnapped or abducted the person with the intention to keep or confide in him/her.
According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to steal any movable property from him/her, will be punished with imprisonment up to 7 years and also fine.
Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal that phone. Here, A is guilty under section 369 of IPC.
Section 370 of the Indian Penal Code was recently amended after the Delhi rape case in 2013. Now, it states the definition and punishments of trafficking.
As per this section, if anyone recruits, transports, harbours, transfers or receives a person for the purpose of exploitation commits the offence of trafficking. This is done by :
- Using fraud, deception or abuse of power, or
- Using threats, or
- Using force or coercion, or
- Abduction, or
- Inducement of the person extorted himself or someone who has authority over him.
Exploitation, as mentioned in this section has a very wide ambit, and refers to sexual exploitation, slavery or practices similar to it, servitude or forced removal of organs.
It must also be mentioned that the consent of the victim is completely immaterial for the offence of trafficking.
Section 372 of the Indian Penal Code provides that if a person sells or allows hiring of any person under the age of 18 years, with the intention or knowledge that such a person would be used for prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.
Illicit purposes, as mentioned in the section, means sexual intercourse between people who are not married or united by any union recognised in a personal law or custom.
Illustration: ‘A’ is a brothel owner. ‘B’ sells ‘C’ to A for Rs. 1,00,000 so that she (C) can be used as a prostitute. Here, ‘B’ has committed an offence under Section 372 of IPC.
Similarly, Section 373 of Indian Penal Code provides the punishment for a person who buys a minor for immoral purposes. It states that if a person buys or hires or in some other way obtains a person under the age of 18 years, with the intention of using or knowledge that such person would be used for purposes like prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.
Continuing with the above illustration: In that case, ‘A’, the brothel owner would be liable for the offence under Section 363 of IPC as he purchased ‘C’ for Rs. 1,00,000 with the intention of engaging her in prostitution.
Section 374 of Indian Penal Code states the offence of unlawful compulsory labour. As per this section, if a person unlawfully forces some person to provide labour against his will, then he is punished with either simple or rigorous imprisonment for a period of up to one year, or with fine, or with both imprisonment and fine.