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 offense as abduction under the code, but abduction with certain intent is an offense. 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 Mohamad 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 obstruction. 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 several assassins 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 neighbor’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 neighbor went and lodged a police complaint that very night.
The court held that there was enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to leave a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and secondly 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 somewhere 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’ comes to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offense 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 reluctant means. It cannot be called abduction if the person is not taken to some place.
Now let’s discuss an important judgment given in the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67. It was held that their abduction was no offense at all. The guilty and wrongful intention must be present for the offense 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 of 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 the 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 kidnapping 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 could marry her. ‘B’ did as was asked from him and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offense 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 some place or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such an 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 joints,
- 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 cause of the 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, will 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 offense of trafficking. this is done by :
- Using fraud, deception or abuse of power, or
- Using threats, or
- Using force or coercion, or
- Abduction, or
- Induction of the person extorted himself or someone who has authority over him.
Exploitation, as mentioned in this section has a very wide ambition, 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 offense of trafficking.
Section 372 of the Indian Penal Code provides that if a person sells or allows the 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 stated in the section, means sexual intercourse between people who are not married or united by any union recognized 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 offense under Section 372 of IPC.
Similarly, Section 373 of the 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 such as 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 offense 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 the Indian Penal Code states the offense of unlawful compulsory labour. As per this section, if a person unlawfully forces someone to provide labor against his will, then he is punished with either simple or rigorous imprisonment for a period of up to one year, or with fines, or with both imprisonment and fine.