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NAVANITHA KRISHNAN A/L SELVATHIRUMARAN
(012021091364)
(BCF)

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Abduction and kidnapping are sometimes used interchangeably.  At common law, kidnapping consisted of the forcible abduction or stealing or carrying away of a person from one’s own country to another.  Kidnapping is the taking away of a person by force, threat, or deceit, with intent to cause him or her to be detained against his or her will.  Kidnapping may be done for ransom or for political or other purposes.  Abduction is the criminal taking away a person by persuasion, by fraud, or by open force or violence.

Although, abduction and kidnapping were considered separate and independent crimes, they are not always mutually exclusive.  In fact, some state statutes have used the terms “abduct” and “abduction” in defining the offense of kidnapping.  However, both the terms refer to the unlawful taking or detention of one person by another.

Abduction is the unlawful interference with a family relationship, such as the taking of a child from its parent, irrespective of whether the person abducted consents or not.  Kidnapping is the taking or detention of a person against his or her will and without lawful authority.

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Penal Code Section 364

Whoever kidnaps or abducts any person in order that such person may be murdered, or may be so disposed of as to be put in danger of being murdered, shall be punished with death or imprisonment for a term which may extend to *thirty years and shall, if he is not sentenced to death, also be liable to whipping.

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General Principles of Laws and Legal Exceptions

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General Principles of Laws and Legal Exceptions

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Kidnapping means taking and conveying away a person against his or her will or confining a person to a controlled space for an illegal purpose. The purpose or motive behind kidnapping includes gaining a ransom or reward; facilitating the commission of a felony or terrorizing the victim or a third person and, under special statutes, can include removing a child from the custody of an ex spouse, etc. Even unlawful restraint of a person amounts to kidnapping if such restraint is substantial enough to interfere with the victim’s liberty. Essential elements of kidnapping invoking Federal jurisdiction include “transportation in interstate commerce of an unconsenting person who is held for ransom, reward, or otherwise, with such acts being done knowingly and willfully.” United States v. Hood, 143 Fed. Appx. 94, 97 (10th Cir. Okla. 2005). The two key elements of kidnapping are unlawful taking of the victim and a nefarious motive like obtaining a ransom. The intent of the kidnapper is a decisive element in the crime of kidnapping. The physical taking or removal of a person from his/her home by the use of force, fraud, or coercion amounts to kidnapping. Kidnapping generally includes the seizing, confining, or detention of another person against his/her will.

For state law, generally, the elements of the crime of kidnapping depend on the wording of the applicable state statute. However, generally the offense of kidnapping consists of the taking and intent to kidnap. The elements of coercion or deception are also generally essential to the crime of kidnapping. Furthermore, kidnapping generally includes the seizing, confining, or detention of another, and such conduct is, essential to a criminal abduction or kidnapping.

According to some authorities, confinement alone is sufficient to constitute kidnapping. The essence of confinement is not its location but whether the victim, by his or her confinement, is effectively isolated from the usual protections of society. The element of restraint is present, when there is substantial interference with the person’s liberty.

In some states, in order to convict defendant of kidnapping, it is required that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her or his will and without lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person.

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KIDNAPPING

The provision for punishment of kidnapping is given under section 363 which says whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extent to seven years, or with fine or with both.

ABDUCTION

Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused.

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Nurin Jazlin Binti Jazimin (11 September 1999 – 16 September 2007)

They was an eight-year-old Malaysian murder victim, who was originally reported missing after she had gone to a wet market near her house in Section 1, Wangsa Maju, Kuala Lumpur to buy a hair clip on the night of 20 August 2007. Her parents filed a missing person report to the police and a search for her was undertaken in the subsequent weeks by several organisations, including the mainstream media and NGOs.[1] Police were able to find CCTV footage, from a nearby camera, showing her being dragged into a white van the night she went missing.  Her murder has not yet been solved.

INVESTIGATION

The nature of her brutal torture and eventual death at the hands of an unknown assailant, suspected to be a psychopathic killer, sparked outrage throughout the country. Malaysian media and Internet blogs have been filled with anger and disbelief in reaction to the case, and the murder is widely considered to be "the country's most horrifying crime in years." The case led to a statement by then Prime Minister Abdullah Ahmad Badawi about the possibility of publicising the list of convicted child sex offenders. Inspector-general of police Musa Hassan initially suggested that he would investigate whether Nurin's parents had been negligent, an offence which could lead to charges under Section 33 of the Child Act 2001. The suggestion provoked public outcry, most prominently from Lee Lam Thye, chairman of the Malaysia Crime Prevention Foundation, who responded that punishing the parents further would be unfair.

On 28 September, federal agents raided a shop in Section 7, Shah Alam, where they arrested four men and one woman between the ages of 27 and 35 in connection with the murder. The woman was released after questioning, while the men were remanded to police custody for seven days. However, they were released unconditionally three days later due to lack of evidence. Police then proceeded to put up an award of RM10,000 for information leading to the arrest of Nurin's killer; an anonymous private businessman agreed to match that with an additional RM10,000. On 2 October, police arrested an Indonesian woman at a market in Nilai, Negeri Sembilan; when confronted, the woman attempted to swallow a SIM card she was carrying.

On 11 October, police released video footage captured by a CCTV camera near a shoplot in Petaling Utama, Petaling Jaya, where the sports bag containing the body of eight-year-old Nurin was found. The CCTV footage was sent on 26 September to the FBI to enhance the clarity of the blurred images. The first clip, captured at about 1 pm on September 16, showed a motorcyclist carrying a sports bag (with Nurin's body in it) and leaving it at the shoplot. The second clip, recorded one hour later, showed a woman loitering around the shoplot who was later picked up by three men arriving at the scene. The enhanced footage, however, failed to reveal the face of the motorcyclist and the license plate of the motorcycle.

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Vikram Singh v. Union of India, (2015)

The next case, we will be looking at is Vikram Singh v. Union of India, in which the punishment prescribed in Section 354A IPC was evaluated.

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.

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Vikram Singh Vs Union of India | Section 364A IPC Case | Constitutionality of Section 364A IPC

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I believe that kidnapping persons or her children should never be exposed to the world. What this lady went through at the hands of her father and the misery and pain he brought to the family they all deserve a life without attention which for me would only extend they pain. Leave them heal and get some pleasure from life. In 100 % cases the mother knows when daughters are being abused and sexually abused.  These women are such unconscious doormats whom do anything to save themselves, most their economic and social standings.  There were plenty of red flags she could have told police to investigate the basement when her daughter went missing and most certainly after the first child was dropped off, the similarities in looks alone would make you question his story. I don't believe he 'broke down and understood what he had done. No way. Did he grow a conscience in one day? He had no conscience his whole life. He was just attempted to manipulate the jury and lighten his punishment. His sentence was WAY TO LIGHT. He should have gotten death for torturing Elizabeth and the 6 children that lived and for murdering the boy twin. I do not believe no one knew anything. Didn't anyone want to tour his new bomb shelter. He also regularly traveled to another country to rape children.

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Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to 369 go a long way in securing the liberty of people. They give protection to children against kidnapping and abduction. Moreover, they reinforce the rights of guardians to have control over the children who are easily moved and convinced by the words of conspiring adults. The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.