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Report No. 42

16.101. Section 365 to be amended.-

We have proposed above the omission of the separate offence known as kidnapping out of India, but kidnapping or abducting any person, whether a minor or an adult, with the intention of taking him out of India, should be severely punishable. This offence may appropriately be included in section 365 by revising it as follows.-

"365. Kidnapping or abducting with intent to convey out of India or secretly confine person.- Whoever kidnaps or abducts any person with intent to cause that person to be conveyed out of India or to be secretly and wrongfully confined shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

In this connection, we considered the question whether inter-State abductions should be made an offence, but came to the conclusion that this is not necessary.

16.102. Section 366 and the expression 'against her will'.-

Section 366 is in two parts. The first part punishes a person who kidnaps or abducts any woman in order that she may be compelled "to marry any person against her will". There is a sharp divergence of judicial opinion as to the meaning of these words in cases where the person kidnapped is a minor. Are these words to be taken as referring to the will of the guardian, or are they limited to the will of the person kidnapped, even though she is a minor?

In a Calcutta case,1 these words were taken as referring to the will of the girl, and not to the will of her guardian, though the girl was a minor. The Oudh Chief Court2 also seems to have taken the same view.

In a Rangoon case,3 the High Court considered the distinction between "against the will" and "without the consent" of a person.-

"Further, in the Penal Code a distinction is drawn between an act which is done 'against the will' and an act done 'without the consent' of a person4. Every act done 'against the will' of a person, no doubt, is one 'without his consent', but an act done 'without the consent' of a person is not necessarily 'against his will', which expression, I take it, imports that the act is done inspite of the opposition of the person to the doing of it.

Now, having regard to the distinction that is drawn in the Penal Code between the expression 'against the will' and 'without the consent' of a person, and the fact that in section 366, it is specifically provided that the woman may be compelled, or knowing it to be likely that she will be compelled, to marry 'against her will' I am of the opinion that the provisions of section 90 are not to be applied to section 366."

But in a Madras case,5 Panchapakesa Ayyar, J., was provisionally of the view that inasmuch as the principle of section 366 was to "uphold the lawful authority of the parents or guardians over their minor wards and to throw a ring of protection over the girls themselves", the consent or will of the girl was immaterial, and the will of the guardian was decisive for this purpose. But he did not give his final opinion on the subject, as the case was remanded.

In a Kerala case,6 a girl under 18 years of age was kidnapped by the accused, and he later married her. He was charged under section 363, and also under section 366, the allegation being that his object was to marry her. The accused, besides raising the defence that the girl was major, also took the defence that the girl was a consenting party throughout. The defence was negatived, and his conviction was affirmed by the High Court, which observed that "for purpose of section 366 also, the minor's consent to the marriage or illicit intercourse is not of any significance."

With all respect, this observation appears to us to ignore the specific words of section 366, which require that the kidnapping of the minor from lawful guardianship must have been with intent to compel her to marry against her will. If a minor girl (above 12 years)7 is taken away with her consent and married with her consent, the offence under section 363 may be made out, but section 366 cannot apply. Further, we are of the view that an intention to marry the minor girl without the consent or 'against the will' of her guardian is irrelevant for establishing the offence under section 366. We do not however think it necessary to alter the wording of the section despite the different views expressed by the High Court as to its meaning and effect.8

1. Fulchand v. Emp., AIR 1932 Cal 442.

2. Bishnath Prasad v. Emp., AIR 1948 Oudh 1 (4 and 9).

3.Khalilur Rahaman v. Emp., AIR 1933 Rang 98 (101).

4.Reg. v. Fletcher, (1859) 8 Cox CC 181: 28 LJMC 85: 5 Jr (ns) 179: 7 WR 204.

5.District Magistrate v. Subhanna, AIR 1951 Mad 900.

6.Kunjukunju v. State, AIR 1959 Ker 197.

7.Under section 90, consent of a minor under 12 years is not sufficient.

8.One of us, Shri R.L. Narasimham, is of a different view. See his separate note.

16.103. The second half of section 366 and section 366A (both of which were inserted by an amending Act in 1923) are closely connected with each other, and could appropriately be put in one section.

16.104. In the light of the above discussion, sections 366 and 366A may be revised as follows.-

"366. Kidnapping or abducting woman to compel her to marry etc.- Whoever kidnaps or abducts any woma.-

(a) with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or

(b) with intent that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

366A. Procuration of woman or minor girl.-(1) Whoever, by means of criminal intimidation or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with rigorous imprisonment which may extend to ten years, and shall also be liable to fine.

(2) Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person shall be punished with rigorous imprisonment which may extend to ten years, and shall also be liable to fine."

16.105. Sections 366B and 367.-

In sections 366B and 367, the only change required is to provide for rigorous imprisonment.

16.106. Section 36.-Recommendation regarding punishment.-

Section 368, which deals with wrongfully concealing a person knowing to be kidnapped or abducted, leaves the punishment to be regulated according to the punishment for the principal offence of kidnapping or abduction. We think that this refinement is unnecessary and a specific punishment may be provided. The section may be revised as follows.-

"368. Wrongfully concealing or keeping in confinement kidnapped or abducted person.- Whoever, knowing that any person has been kidnapped or abducted, wrongfully conceals or confines, such person shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

16.107. Section 36.-Recommendation for minimum punishment.-

The offence under section 369, kidnapping or abducting a child with intent to steal from its person is, in our view serious enough to justify a minimum punishment of two years' rigorous imprisonment. Further, as the offence is grave, the minimum punishment need not be subject to relaxation by the Court. We, therefore, recommend that section 369 be revised as follows.-

"369. Kidnapping or abducting child under ten years with intent to steal from its person.- Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with rigorous imprisonment for a term which may extend to seven years, but which shall not be less than two years, and shall also be liable to fine."

16.108. Section 370 to be amended and section 371 to be omitted.-

Sections 370 and 371 deal with slavery. Though, slavery and trafficking in slaves no longer exists in India, section 370 may be retained as a deterrent. Imprisonment for the offence should be rigorous. Section 371, which punishes habitual dealing in slaves more severely is, however, unnecessary and may be omitted.

16.109. Section 37.-Amendment recommended regarding punishment.-

Section 372 punishes selling, or hiring a minor for prostitution, illicit intercourse or any 'unlawful and immoral purpose'.

It was suggested that, for the words 'unlawful and immoral purpose', the words 'illegal or immoral purpose' should be substituted, but we think that the purpose should be both immoral. and unlawful. Although the expression 'unlawful' may be vague in other contexts, it is not so in this section, because the further restriction imposed by 'immoral' narrows down its scope.

Imprisonment under this section should be rigorous, having regard to the gravity of the offence.

16.110. Section 37.-difference of opinion as to taking possession of minor.-

There is a conflict of decisions on the question whether section 373 is confined to obtaining' possession of a minor from a third person. The Bombay1 and the Patna2 High Courts have held that it is not necessary that the buying, hiring, or otherwise obtaining possession, of the minor should be from a third person. Any one taking a girl under eighteen years for the purpose indicated in the section is liable even though there is no one who has given him possession of the girl, and he himself has taken possession of her. The Madras3 and the Calcutta4 High Courts have taken a narrower view. The Calcutta case expressly dissents from the Bombay view.

1. Shamoundarbai, AIR 1921 Born 323; Bhagchand, AIR 1934 Born 200; Gordhan Kalidas, AIR 1942 Born 23.

2. Shamsunder Prusti, AIR 1930 Pat 219.

3. Dowlath Bee v. Shaik Ali, (1870) 5 MHCR 473 (475): 1 Weir 377 (See judgments of Holloway and limes JJ.).

4. Jateendra Mohan Das, ILR (1937) 2 Cal 187: AIR 1937 Cal 250 (Cunliffe and Hunderson JJ.).



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