482

Criminal Law: Cases and Materials

Offences Act, 1956 it is an offence for 'a person' to *-- , m "wrnaa or a man . Punishment may extend to 10 years of ****x\y cases under s 14 ad IVSimilar provisions have been retained ^A?"*** n 2.? cd ,n , h c Act, 2003. Sexual O f t ^ Thefience of indecent assault includes both a battery (a touchi assault, ^ t h o u t touching. In case of batteiypfoof of the victim's J ? i"? " * * circumstances of indecency is not required, whereas in Case of nwT* ^ *, victim must be aware of the assault and of the circumstances of the K ^ r T * * * Assault or battery need not be indecent in itself provided it is a circumstances of indecency. For instance, in Beat v Kelley,'1 where a fr fl n ' e d ^ yean had declined the accused's invitation to touch his penis, the accused f U boys arms and dragged him towards himself, the accused was held onii V * g indecent assault. ^ * an Indecent Assault under Indian Penal Code I r i * high time that a new section be added in the Indian Penal Code provid punishment for 'indecent assault' either committed by a man or a woman provided under Sexual Offences Act, 2003 in England. Such a provision is necessan because under Indian law persons, who are found guilty of'indecent assault', are nor covered under any one of the existing provisions in the Code and go scot-free. The law should cover both a man and a woman alike as in case of English law, and punishment should be more stringent than in case of ordinary assault. The proposed section should read as stated below: Indecent Assault.Whoever commits indecent assault against a woman or a man shall be liable to punishment with imprisonment of either descriptionfora tens which may extend to*fiveyears, or with fine, or with both .

KIDNAPPING AND ABDUCTION

of Kidnapping and abduction arc1 punishable under ss 3 5 9 - 3 6 9 ^ . T h c ^ Including sucfl.offence* iftthe IPC is to extend protection to children of tender age from being abducted or seduced for illegal and undesirable purposes and to preserve and protect the rights of the parents and guardians over thtir wards.

3 5 9 . K i d n a p p i n g K i d n a p p i n g is of two kinds: 'kidnapping from India, and k i d n a p p i n g from lawfal guardianship. 3 6 0 . K i d n a p p i n g from I n d i a . - W h o e v e r conveys W ^ * g limits o f l n d i a Without the consent of that person, < * ? * * rso n authorised t o consent o n behalf of that person, is said to kidnap una P= from I n d i a . 91 RvCowt. (1987) 1 All ER 120(122) (Crown Court of Appeal). SeeA-i 92 (1951) 2 All ER 763.

t^nj

\V
*Offt* ReUtlng^l 0^1=^" tMWneveT entices any takes m "J" tf a

o n r r o w - ,id to kidnap men n 11. .vr,fTr. petto ^ _ * Include | words, 'lawful guardian' in this section any F ^ the f u icare g u or ard s ' in thU ^ ^ isted 7 with custody of such minor or othe other ot ^ = I ^ r h c words. '-;ui | o r ^ pi* ' :tion does does not not extend extend to to the the act act O of person who in . ___"]fhis section T any anychild, j/- . Of ~* illegitimate who in I M:. I hclievef himself to be the rather of an illegitimate child, or who in WT v h believes himself to be entitled to the lawful custody of such child, w*A*ct is committed for an immoral or unlawful purpose. ^naos any person from India
1

V
Jbk " * * ' b v force L . A W U c r i n . - W h ^ by for , secrians 363A to 369 ot
MaCti n

compels, or by any deceitful means . P^ ^ ^ ^ ^ ^

'

ft

M1m

it does not amount to 'taking' fro

' &^1>22~-Z

s & rrc-AfP<al

asideSupreme Court (1965) M. M aab^i TfffJjiP^i^P*" 5 Varadarajan v State of Madras Justice Mudholkar held: This is an appeal from the judgment ofthe High.Court of Madras affirmin the conviction of the appellant under s 363 of the Code.

...Savitri, who was a minor, left the house of K Natarajan (a relative of h father S Natrajan) at about 10 am and telephoned to the appellant asking hi to meet her on a certain road in that area and then w e n t t o t h a t ro herself,...both of them went to the registrar's office. Thereafter t h e agreenv to marry entered into between the appellant and Savitri, which was apparer written there, was got registered. After the d o c u m e n t was registered appellant and Savitri went to Ajanta Hotel and stayed there a stay of a cot
UR 1965 SC 942, [1965] 1 SCR 243.

484

Criminal fmm

oi d*>^ to Srifctkukm on 4 October

S

I960 ^Accepting the apo Savurt out of the keepu the fim paragraph of 3

**" ^wboln -* ^ P ' P " ^

!35^*
MM >L

Js contention ^ ^ ^ *5ff ^ d * * has not lw_ f T 41 *

could be d ^ i z z t&1g^j!*
5u

-^"^^ix^isas
There is not a word SSran<m of the appellant s J r ? ^ ! L

Lv "r ^ _J

s- isnr

?"""*_

omce and got the agreement of marriage registered there i L n o s t m c h of imagination be said to h a ^ X ^ J ^
Afcr ^ C ^ F ^ ^ ^ * <** ^ e e m e n T b o l t e i ^avrai lived as man and wife and visited different places. There L * n i a v i m s WKfcnce, who, it may be mentioned bad anainai t f e L discretion and was on the verge of attaining majority that she was lcE4c appeliant to accompany him by administering any threat to bet or b* blandishments. T h e fact of her accompanying the appellant ail aba* htfm consistent with Savitri s own desire to be the wife of the appeliant at vbkk tk desire of accompanying him wherever he went was of course implicit

fn these circumstances no inference could be drawn that the appdbat tui been guilty of taking away Savitri out of the, keeping of her father. SbewSagj' accompanied him and the law did not cast upon him the dun of takingfetfeck to her father's house or even of telling her not to accompany him. J T h e view which we have taken accords with that expressed in two EagMi decisions. In Reg v Christian Otifir" Baron BramweU stated t f e j g p Q f 9 " t o the j u r y thus: c nkilirTn rhat if a young woman leaves her lather's house without; L r ^ C oTb Jdisb.,. held - , - he- bv ; - j -tefc

but only that he shall not take her away.

showed**

formaa A e itftiaJ "f23, and by his promise to many her. b y the solicitations of the a c c u s e ,

[4 (1866) 10 Cos CC 402.

&

4S?

I ,c.x, -.-.> --.>;" IM | iiwn miiiHI a ii ii it n ~i T ^ I T time must he alJMk Mt k h quite ckar that w nl physSal
- "T)Jc W i. with

B R hy ,N o U A s & o n\ M hUftdtshmctu&, The question is whethce *f acwe P _|,}v ^ima A W A V tofdlwr n ike act of die ptwoact or of the s<irk itit was ueact E*f the >wi> W e is *,wlrv'\ ...it' she M t (browd at to wefce ad sufS03 , 0 rtv ,M**wft th* lie stadNffa **y with hat* and he fielded to her $uge*oo* wk i I>J: DA active part hi the matter, you must acquit him. j n ,hi>- case there WAS no evidence ofany solicitation by the accused at any tune dfilj jhe jure itfumed a verdictetf''not guilty'. Further, there was no suggestion lut the gin was incapable of thinking for herself and making up her own I Held, no offence under s 563 has been established against the appellant. The conviction is set aside and the appeal is allowed. f^jb>e r mixing if *t mtmerfrmm * faqfitl rmsmdy of guardian amommts to kith t}f 'Tfifip&tf dismissed -^ > r M #ftiI. v. ^ r... cmrt (1972) Tfaak&rihdD Vsdgam* pSawefGrnjarat'* The fact that on the day of occurrence the girl voluntarily went to the accused would be no defence to a charge of kidnapping a minor girl with an intention to seduce her to engage ii illicit intercourse, if there is ample material showing allurement. Section 361 uses the expression whoever takes or entices any minor*. The word 'takes* no doubt, means 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 in the other. This may work immediately or it may create a continuous and gradual but imperceprible impression culminating after some time in achieving its ultimate purposes of successful inducement. The two words read together suggest that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence of kidnapping (Vknutmgmts case). But, if die guilty party has laid a foundation by inducement, allurement or threat, etc, and if this 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. If the accused had at an earlier stage solicited or induced her in any manner to leave her fetther's protection by conveying or indjcat,n a " T ? r m g suBS**ion that he would give her shelter, then the mere 8 circumstances that his act w n n t . , i a > ., ,, . not " tne immediate cause of her leaving her parental

486

"m

tAPp*aiaooni " 1 9 June

1998

v,

*M'

Wfol authorhW

Evicted of r i -

Un

V?

On appeal ^ s 2fnrM k '

r cont

^ ended that h , u

f ^ o f t f * ^ n

" = 7 - J - *< child's co t t t u S T ^ t a " "

Jftl T " " * * ^

Appeal was dismissed.

J [1978] 3 All ER 161, [1978] 1 WLR 921. For details of the case, see) G a ^ C ^ f ^ Case and Materials, fourth edn, 2005, pp 458-59 2 [2000] 2 All ER 177 (CA), per Clarice LJ. 5 Child Abduction Act 1984, s 2(l)(b) reads: Subject to sub-s (2) below, a person, otter ib mentioned in sub-s (2) below commits an offence if, without lawful authority en excuse, he takes or detains a child under the age of sixteen (a) so as to remove him m control of any person having lawful control of the child; or (b) so as to keep luit control of any person endded to lawful control of the child. Ae*i*W tl*S Child Abduction Act 1984, s 3(a) reads: For the purposes of this Part of this ^ skulk be regarded as taking a child if he causes or induces the child to #ccompw person or causes the child to be taken...

VV
Hi

( i< M H W W H

Hwh\

|,,.|<HANNUM

J krr| 7pMtM in den-miou all,. ,.., I, kidnapping *>'"

f <uw* hurt 01 Utath ft Mh iwnon in dar w S<wnp t h * Ewoi or anv foreign start OP UiMrntttoiMl mm government Lj l ( or any othfr panon. m do or abstain from doing any ' '" l ,Mli, shall he punishable with death, or ItupilMtunu'iit for llfti " o be liable to line. | In 1993 new a 364A antltltd 'Meinttpplng for ranaom' W W added In the r^ Cl,ch rise in mil it .tin y. |,,,11011 has the following Ingredient!) Kidnapping abducting a person; or ' Keeping such person In detention filter kidnapping or abductlont (a) threatening to caute death or hurt to that person, ur (b) give rise to a reasonable apprehension that auch pcraoft may M pttt to death or hurt or cause* hurt or death to *uch person; Compel (a) The povernmenti or (b) any foreign state; or (c) international inter-government organisation; or (d) any other persons to do or to abstain from doing any act or pay *ny ransom. view of the gravity and serious nature of such offences a 3o4A, IPC has provided for extreme penalty of death or life imprisonment with fine in case of kidnapping, for ransom, etc. The offence under the section is cognizable, non-bailable and triable by purr oi sessions. With a view to curb this the heinous ofTence, a consequential amendment was (so made in the Criminal Procedure Code 1973 in s 39(1) by inserting sub-el (Va)* Bpsing legal obligation on the part of 'every person to inform to the nearest lagisrrate or police officer about kidnapping for ransom, etc, if one happens to p v about it'. In case of failure to discharge such legal obligation a person is liable jpunishment under s 176, IPC, which may extend to six months of imprisonment with fine up to one thousand rupees or with both,

> * to ea^sa death or hurt to such ptrton, ui hv Hd UOIUUUJI "'".^.naNe appteheuslnn thai %\\\\\ pfll'MMl may ! P*" " M**'1 !

Inserted in die Indian Penal Code by Act 42 of 1993, s 2 (wef 22 May 1993V Inserted by Act 42 of 1993, s 93, wef 2 May 1993.

488 ^U^iCamandMauriaU * * * * 364A kid, ""PpixRfor ransom criminal cues Prosecution to concede v- " " " " " to ik. ;;/ 7 """ o raB G M " <?>/; * * ' / / < X*' demands of,, deal~App

le State Government of Karnataka, being afraid of tiln e the illegal d ^n^qucn egal demands of Veerappan which included inter aliTl cases under Terrorists and Disruptive (Prevention) Act ( T A D A . ' w * gainst him and his associates in lieu of safe releaseof the m * start PubBe F rosecutor, on the instruction of the iveninin ,__ i . * ., government flioved d 2L WW, Mysore for the withdrawal of cases from prosecution k the l a r g e r - ^ prosecution in the tate and in ui order to av< avoid any unpleasant situation. T h e petition f -S Stare o f cases was allowed by the court.'

>

Aggrieved by the decision of the court, the appellant Abdul Karim Shalceel A h m e d , a police officer who had allegedly been killed bC"veera^, &d,< or,.,-,.. movedI .1 e r-"_.-..~ c , : - ^PRn associates in an encounter, the Supreme Court for cancellation^of A moftj o f w i t h d r a w a l o n the ground that the State Government of Karnataka had yi, t h e illegal d e m a n d s o of f Veerappan and that n o cogent reasons have h a w been erven decision t o d r o p the T A D A and other cases. T h e S u p r e m e C o u r t righdy observed that while granting consent for withd o f a criminal case u n d e r s 3 2 1 o f t h e C r P C , the trial court must ensure that: (i) T h e p u b l i c prosecutor has applied his mind independendy to rdevan materials a n d exercised jurisdiction in good faith; 1 * (flf T h e withdrawal from prosecution is in public interest; and " ( i u ) I t will n o t stifle o r thwart the process o f law or cause injustice. W h i l e a l l o w i n g t h e appeal a n d h o l d i n g the consent granted by the designated special c o u r t for w i t h d r a w a l o f cases b a d in law, the Supreme C o u r t observed: T h e Governments have to consider and balance between maintenance of law and order a n d anarchy. I f Government yields to the pressure tacticsjef those who ate to terrorise and overawe the elected government, people may lose faith JO the democratic process, when they see public authorities flouted and the helplessness of the government T h e aspect of paralysing and discrediting the democratic authority has to b e taken into consideration.

7 AIR 2001 SC 116, (2000) 8 SCC 710. The judgment was delivered by Mohapatra and YK Sabharwal JJ.

SP Bharucha, DP

Prosecutor or ASH

lpZZmcedm*dr,wf,om,hCp,oxa.<i*<>fre<--

 *. Chapiter 8Offences Relating to Human Body

489

K I nf the timely intervention of the Supreme Court that PreJeJ . ^ B ^ t ^ c i n g a b l a t e immunity to Veerappan * * * - S ^ j j j i d . ^ j K T ^ a m l will go a long way in r e w L u i * the au&otttw. conce ' ^ g ^ ^ d c r r M p a s o f t b e c u l p r i o . 1 L / L Kidnapping for Ransom^UmHdering ' ^ J J ^ J ^ Z w f S^lj^for ransom, legislature bat in its wisdom provided for *>en seixed_ Ed at ransom and its communication established-currency note* Of P^yu^-Supreme CourP-2008 Vinod v State ofHaryand

T k

? , i n e o f A m i t Kumar, aged 9 years o n 29-5-19 Jb tor d 0 a P P S S A I P C and sentenced to imprisonment for lite. J ^ S L l a n Mohan fata o f A . b o y that ta; son ^ ^ '
whr

the piacc

Slxralf^'ht^-ra f|w
Madan M of murder or . o { fo | nores rn d > . * rf ^ W k The b ^ containing currency not h had taken away the bag i c h he had driven away hunse A n m ^ H I and handed htm
10 c hi\d

communicated. R - n e Scared of the constant threat J S e u S T - lakh and arranged dr., foH.0/- and Rs 50/- - f r t , I a n Stialed as "MM" by . ^ ^ U d e d over to the " ' ^ ^ f ^ w h Z X & S Z S X Madan Mohan. After a hectic search finale declared a proclaimed offend^ Madan Mohan was found from t h e ^ for the offence of ^ P P , ^ " ^ was confirmed by the High Court.
m

K ^ a c k

Virender

$ J ^ ^ 1 P

H P 91* * d . They were , and found gt

9 years of class 3rd standard son of Ma*n n o o n tune when the b PaTpat (Hariyana, was > , 1 j ^ 10 yatds away ****&* play with his friends outsidetthe ' n ^ s e a r c h and teported the matter W Simm Madan Mohan hts father made rj^jf " ^njrjO T f(jQ . ^ b e found oat Vishav Pal, P***" K - " * ^ ed a Vinod, Vita. Vidya Sagar, ^jL ^

S ,\

\
Q ^ * " - ^Offences Relating to Human Body

^ V v I ' ^Ku-

r Vv ***** ***"" f ^ d m , y tc tawendon of the Supreme Court that pre W tt \m* fie"1 d8 r,anne tn" j !}} "nmunity to Veeppn and hi assocwtfi. It * * t ' * A. hS SW j " g * d J*?" 8 long way in restraining the minorities to concede /*/ ^ V l ' ' t h e illegal demands ot the culprits. *0.% V v f c * i * -*51*4 K*dnaPPilfi>r J*"******Considering alarming rise in kidnapping If children for ransom, legislature has in its wisdom providedfor stringent sentenceL,ce Demand at ransom and its communication established-currency notes seizedcllSed LiableSupreme Court2008

\ M
V\i

Vinod v State ofHaryana

S'
mm

P c r Dr Arijit Pasayat, J: Ten persons including one Virendar (a proclaimed offender) were convicted for yjnapping of Amit Kumar, aged 9 years on 29-5-1996 for ransom punishable " n d c r s 3 6 4 A I P C 3nd s e n t e n c e d t o imprisonment for life. Three days after the incident or*. 2-6-1996 a telephone message from Saharnpur was sent to-Madan Mohan father of the boy that his son Amit Kumar was well but nis abductor were demanding a ransom amount of Rs 10,00,000/- failing which rJjey were threatening to kill Anil Kumar; and that if the matter is reported to the police his son would be killed. The manner in which the money was to be paid and the place where and to whom it was to be delivered in exchange of the boy was communicated.

Being scared of the constant threat of murder of the child Madan Mohan arranged for ten lakh and arranged the notes in the denominations of Rs 500m| Rs 100/- and Rs 50/- respectively and the first and last notes of the bundles were initialed as " M M " by Madan Mohan. The bag containing currency notes was handed over to the middle man-Yashpal who had taken away the bag in the car bearing Registration no HR-06B-244 which he had driven away himself. Next day on 4-6-1996 Yashpal brought back Amit kumar and handed htm over to Madan M o h a n . After a hectic search finally all the nine accused10 (except one Virender who was declared a proclaimed offender) were rounded up, currency notes with the initial of Madan M o h a n was found from the possession of the accused. They were prosecuted

for the offence of kidnapping for ransom under s 364A IPC and found guilty which was confirmed by the High Court.

9 AIR 2008 SC 1142, (2008) 2 SCC 246, Dr Arijit Pasayat and S Sathasivam jj Amit Kumar, aged 9 years of class 3rd standard son of Madan Mohan resident of Old Housing Board colony Panipat (Hariyana) was kidnapped on 29.5.1996 around noon time when the boy had gone t< play with his friends outside the colony nearly 100 yards away from the gate. \Chen the boy di< I not return Madan Mohan his father made a search and reported the matter to the police. Bv

nothing could be found out. m Nine accused are Vinod, Vikas, Vidya Sagar, Vishav Pal, Pawan Kumar, Surender Pal, Vino Sohan and Jagbir. i -s&fcta^^k.

Vinod v c,

wh,

' e endorsing

U " ^ " ^ J A ? ? fcL

"* * ' o p i o i d

20l3

> - J Wow , P o o o k Z , * ^ " .

/iw. u s i n g t h rcatS)

or fotm o f

A w a ^ - u w *force,or any o t h c r Jhirdfy.-~by abduatea, or

fR 2012 SC 308. (2012) 1 SCC 406. ffR 2004 SC 4865, (2004) 8 SCC 95. AIR 2008 SC 1142, (2008) 2 SCC 246.

c,^^ ^

491

j j ^ r t t f e * * * * * *

. .< , h* * ' ' '

J* z*2** ***,cmoval!lfJTe^ a-"*""*

, .,.iUkig.. shall be P u n ^ l ^
ycars.

n for . be liable to 6 * f o m -e nc t ror - ~- ^ a l l j, also ^ b e k d to ten years, an t h a n <-

it

g**.fe<*-f r S i l - * *e!Kfc. a n d *
' p i * i, Kill W**" " ~ ~ * ~~ :

T&W*T
T-
L l a W e r o

. M shall be
< ^ * no, ta ^

'"offence involves .he a * * *

*"'.f 1/ine. r ihan one minor. it * I the offence involve, the trafficking_of. m ^ w h i c h shall not be <" ^ htble with rigorous imprisonment for a f o r life, and S i t e be liable &* ft person * conviced of ,h offence of * J f i ocion, to such rr***ien-nder S f e which shall mean imprisonment tor g i l l i e a n d shall also be l,able n,
of

I I

" ^

minor on more p n of that p o n

^ r - ^ ^ S

w u l shall 'mean impmonment for the

,T *l**y added ofi ence n m a k , K

uc

h m,
y exte

l, t for n nd t o * *n J d

nen

A IPC

shall **k

,es

the

(c

) Jurboun,

<3 u s g*r 0 ; o r

rwncf j Person I M B l transferred or received.

recruited
d>

.
trans

7 p e r s o n hav

Prted,

mR harboured

^nendment) Act 13 of 2013 (w.e.f. 3-2-2013).

[
r

*'f,*f*!lL extend 5 7*4/* *'* fit*. tut pMitfttTUTIOH

F fcofa* # * '^' '^ -'''-

lab At uade ami*** \ \ CM****** t/*kA*kkzi*f " ' tmmm Mop md f~"
JJW77 n 1 1 p i T r 77 of M
h e *

b
MM

1 0 V r t k K jw-ofc&tt*
M e * 0 * v k > m * * t <&

traffic
* " * *

ilarwt'liFy

extern of
DM

morwkhhtrih,'

",<,pUi (Jmm f<# hmwrnk

U'v/jm AIH '/</