Section 364A, Indian Penal Code

The first essential condition as incorporated in Section 364A is: “whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction.” The second condition begins with conjunction ‘and’. The second condition has also two parts, i.e., (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition. Section 364A contains only one conjunction ‘and’, which joins the first and second condition. For covering an offence under Section 364A, apart from fulfillment of first condition, the second condition, i.e., “and threatens to cause death or hurt to such person”, also needs to be proved in case the case is not covered by subsequent clauses joined by ‘or’.

No ratio has been laid down in Paragraph 92 of Arvind Singh v. State of Maharashtra, (2020) SCC Online SC 400 that, when an eight-year-old child (or a child of a tender age) is kidnapped/abducted for ransom there is inherent threat to cause death and the second condition as noted above, i.e., threatens to cause death or hurt to such person, is not to be proved. The observations cannot be read to mean, in a case of kidnapping or abduction of an eight-year-old child (or child of a tender age) presumption in law shall arise, kidnapping or abduction has been done to cause hurt or death. Each case has to be decided on its own facts.

High Court has not dealt with the ground taken before it that, no threat to cause death or hurt was extended. We, however, proceed to examine the evidence on record to satisfy ourselves as to whether there was any evidence from which it can be proved, the second condition, i.e., “threatens to cause death or hurt or conduct of the accused gives rise to a reasonable apprehension that victim may be put to death or hurt”, was established. The evidence on record did not prove fulfillment of the second condition which is requisite to be satisfied to attract Section 364A. The conviction is unsustainable under Section 364A.

Hon’ble Justice Ashok Bhushan, Shaik Ahmed v. State of Telengana, [Criminal Appeal No. 533 of 2021].