Section 364A of IPC provides punishment in the offence of kidnapping for ransom. It was inserted in IPC in 1993. The said section reads as follows-
“Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 2[any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”
Insertion of Article 364A in IPC
The proposal for addition of Section 364A to the Indian Penal Code was first modified by the Law Commission of India in its 42nd Report submitted in 1971. The relevant portion of the report reads as under:
“16.100 We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable under Section 365 since the kidnapped or abducted person will be secretly and wrongfully confined.
We also considered the question whether a provision for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it.
We propose the following section:- “364A. Kidnapping or abduction for ransom – Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imprisonment for a term which may extend to 14 years, and shall also be liable to fine.” xxxxxxxxxxxxxxxxxxx
Chapter 25 SUMMARY OF RECOMMENDATIONS 25.1. xxxxxxxxxxx
A brief summary of the principal recommendations made in each chapter is given below: xxxxxxxxxxxxxxx
(14) Kidnapping or abduction for ransom should be an aggravated form of the offence of kidnapping or abduction punishable with rigorous imprisonment upto fourteen years and fine.”
Criminal Law (Amendment) Bill, 1992
The recommendations of the Law Commission appear to have languished for nearly two decades before the Criminal Law (Amendment) Bill, 1992 was presented to the Parliament by the Government proposing to add to the IPC Section 364A in a form slightly different from the one in which the Law Commission had recommended such addition. What is important is that in the statement of Objects and Reasons, accompanying the bill, a two-fold justification was given by the Government for the proposed addition namely:
(i) that kidnappings by terrorists for ransom for creating panic amongst the people and for securing release of their associates and cadres had assumed serious dimensions and
(ii) The Law Commission had in its 42nd Report recommended a specific provision to deal with the menace of kidnapping and abductions for ransom.
The Bill eventually led to the Criminal Law Amendment Act 1993, introducing Section 364A to the Indian Penal Code with effect from 22nd May, 1993, in the following words:
“364A. Kidnapping for ransom, etc.– Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”
International convention against the taking of hostages
Shortly after the introduction of the above provision arose the need for an amendment to the same. The amendment was necessitated by reason of India acceding to the international convention against the taking of hostages adopted by the General assembly of the United Nations on 17th December, 1979 in the background of Iranian hostage crisis. The Convention aimed at fighting international terrorism, came into force with effect from 3rd June, 1983 but was acceded to by India with effect from 7th September, 1994.
The Indian Penal Code (Amendment) Bill 1994, was, in the above background, introduced in the Rajya Sabha on 25th August, 1994 to amend Section 364A so as to substitute the expression “any other person” by the words “any foreign State or international inter-governmental organisation or any other person” in the said section.
The Statement of Objects and Reasons for the amendment also gave the background in which the amendment was considered necessary. The Statement of Objects and Reasons accompanying the bill were as under:
“STATEMENT OF OBJECTS AND REASONS
An international convention against the taking of Hostages was adopted by the United Nations General Assembly on the 17th December, 1979.
2. The said convention seeks to develop international cooperation between the states in devising and adopting effective measures for prevention prosecution and punishment of all acts of hostage taking.
3. India has decided to accede to the said convention since it is one of the important conventions aimed at fighting international terrorism. For the purpose of implementing the convention it is proposed to amend section 364A of the Indian Penal Code which provides punishment for the offence of kidnapping for ransom etc.
It is proposed to widen the scope of the said section by including therein situations where the offence is committed with a view to compelling foreign states or international inter-governmental organisations to do or abstain from doing any act or to pay a ransom.
4. The bill seeks to achieve the above object.”
Rajya Sabha Committee
A Committee of Home Affairs constituted by Rajya Sabha examined the issue and submitted a report dated 29th November, 1994 in support of the amendment to Section 364A. The existing Section 364A did not, it opined, take care of situation where the offence was committed with a view to compel a foreign State or international inter-governmental organisation to do or abstain from doing any act or paying ransom. The relevant extract of the Report is as under:
“In its note furnished to the Committee, the Ministry of Home Affairs explained the background and the necessity for amending section 364-A of the Indian Penal Code, 1860, as under:-
(i) An International Convention Against the Taking of Hostages was adopted by the General Assembly of the United Nations on 17th December, 1979. The Convention was adopted in the background of Iranian hostage crisis and aimed at fighting international terrorism. The Convention entered into force on 3rd June, 1983.
(ii) As per the Convention, if any person seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an International inter-governmental organisation, a natural or juridical person or a group of persons to do or abstain from doing any act as an explicit or implicit condition for the release of the hostages, it will constitute the offence of hostage taking.
(iii) India acceded to the Convention with effect from 7th September, 1994.
(iv) At present, the offence of hostage taking is not defined in the Indian law. However, vide Criminal Law (Amendment) Act, 1993, Section 364A was added to the Indian Penal Code to make kidnapping for ransom, etc. An offence punishable with death or imprisonment for life and also fine.
This provision read with other provisions of the Indian Penal Code on abetment and attempt, would already cover hostage taking, as defined in the Convention to the extent that this Act is confined to the territory of India. Section 364A IPC does not take care of situations where the offence is committed with a view to compelling foreign States or international inter-governmental organisation to do or abstain from doing any act or to pay a ransom.
(v) Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said section 364A on kidnapping for ransom, etc. to make it clear that kidnapping a person to compel the Government or any foreign State or international inter-governmental organization or any other person is punishable under that section.”
Constitutional Validity of the section
The constitutional validity of the section was challenged in the case of ‘Vikram Sing Vicky v. Union of India, (2015)’. The contention of the petitioner was that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty.
The Court’s Analysis
The Supreme Court analysed the case as follows-
- A conspectus of the provision leaves no manner of doubt that the expression “any other person” appearing in Section 364A right from the time of its initial incorporation in the Code was meant to apply the provisions not only to situations where the Government was asked to pay ransom or to do any other act but even to situations where any other person which would include a private person also was asked to pay ransom.
The subsequent amendment in the year 1994 also did not remove the expression “any other person” in Section 364A while adding the expression “foreign State or international inter Government organisation” to the provision as it originally existed.
- On the contention of the petitioner that existing provisions are sufficient to deal with the case of abduction, kidnapping and section 364A just applies to terrorist organizations and therefore, not applies to private person, the court said that, section 364A has three distinct components viz.
(i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction;
(ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and
(iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom.
These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 of the IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364A proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that kidnapping or abduction for ransom was effectively covered under the existing provisions of the IPC must, therefore, fail.
- Main argument of the petitioner was that Section 364A to the extent it denied to the Courts the discretion to award a sentence other than death or life imprisonment was ultra vires of the right to life guaranteed to the appellants under Article 21 of the Constitution.
On this the court said that, Section 364A does not mandate a death sentence as was the case with Section 303 of the IPC. In Section 364A, the Court enjoys the discretion whether to award the extreme penalty of death or the lesser alternative of a life imprisonment.
Whether life or death would be the proper sentence is in the absolute discretion of the Court which the Courts are expected to exercise wisely having regard to the facts of the case and the gravity of the offence and its severity or barbarity.
- The court further said that in a Parliamentary democracy like ours, laws are enacted by the Parliament or the State legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are meant to cater to the societal demands and meet the challenges of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the Courts will show deference towards them.
- That, however, is not to say that laws that are outrageously barbaric or penalties that are palpably inhuman or shockingly disproportionate to the gravity of the offence for which the same are prescribed cannot be interfered with. That punishment must be proportionate to the offence is recognised as a fundamental principle of criminal jurisprudence around the world.
The court summed up its conclusions as follows-
(a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.
(b) Prescribing punishments is the function of the legislature and not the Courts’.
(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.
(d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.
(e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.
(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.
(g) Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.
(h) In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate.
The court finally held that,
“the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country.
With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities.
Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional.
Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric.
In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty.
But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution.
Vikram Singh @ Vicky vs Union Of India, 2015
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