Make No Mistake, the Chandigarh Incident Was An Attempted Kidnapping, Not 'Stalking'

'Stalking' entails seeking to make contact to "foster personal interaction" – this is not what happened with Kundu, as the accused were driven by anything but to foster interaction, personal or otherwise.

Left: Vikas Barala, son of BJP leader Subhash Barala; Right: Varnika Kundu, Chandigarh-based DJ and daughter of IAS officer Virender Kundu

Left: Vikas Barala, son of BJP leader Subhash Barala; Right: Varnika Kundu, Chandigarh-based DJ and daughter of IAS officer Virender Kundu

Every reference to Varnika Kundu’s attempted abduction case as the ‘Chandigarh stalking case’ trivialises the terror and reality of the midnight car chase she endured.

On the night of August 4, when Kundu’s police complaint was registered, the provisions invoked against the accused were Sections 354D (stalking), 341 (wrongful restraint), 365 (kidnapping with intent to confine), 511 (attempting to commit offences punishable with imprisonment for life) of the IPC, and section 185 (drunken driving) of the Motor Vehicle Act. Once both accused were identified, the significant offences were inexplicably dropped from the FIR, which was limited to stalking (a first offence) and drunken driving – both bailable offences.

With the accused Vikas Barala being the son of Haryana BJP president Subhash Barala, the dropping of offences has widely assumed to be on account of deference to political power. This was shortly followed by an announcement that most of the CCTV cameras on the stretch of road where the car chase unfolded were not working. Later in the face of growing public outcry and media attention, it emerged that one CCTV might have indeed recorded the accused in their SUV chasing the complainant, Kundu, in her car. On Wednesday, the Chandigarh police, finally slapped attempted kidnapping charges on the two men and arrested them. Whether this is the belated dawning of wisdom or an attempt to publicly demonstrate that the law is taking its course, the initial decision to drop the more serious offences in the FIR and reduce the entire sequence of events to ‘stalking’ reflects poorly on the Chandigarh police. Either it has a poor understanding of the law or is susceptible to the pressures of power.

What is stalking?

To begin with, it helps to take stock of the legal definition of stalking before comparing it to the events on which the complaint is based. The portion of Sec. 354D that is relevant to the event reads thus:

(1) Any man who—

(i) Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or…..

Stalking came to be recognised as an offence in 2013 in the IPC. Although an actionable offence, most such cases make news only when the victim is attacked, sometimes with fatal consequences. It comprises acts such as loitering, interfering, watching, spying, following and monitoring the complainant/victim – electronically or in person, carried out on multiple occasions. The offence of stalking is made out only when any such act is repeated more than once – that is at least on two occasions. In the absence of domestic jurisprudence, the interpretation remains limited to the statutory definition.

In England, Wales and Scotland, there are two kinds of stalking – the first being simple stalking and the second an aggravated form. The impacts of the two are distinguished with that of simple stalking described in terms of causing annoyance, distress or anxiety to the victim; while the aggravated stalking involves reasonable apprehension of violence, detriment or harm to the person or property of the stalked person.

In India, the law is restricted to simple stalking with a gradation in punishment for a first time offence and a second or subsequent offence. The first conviction attracts a punishment that may extend to three years, while the sentence for a repeat offence may extend to five years. Both attract a fine. The first offence is bailable while the second is non-bailable. Although the offence of aggravated stalking does not exist as a separate provision in Indian law, it can be prosecuted if the offence of stalking is conjoined with the offence of criminal intimidation.

Chain of events

The events of the fateful night described by Kundu on Facebook and in her statement to the police are as follows. Once she realised that the accused were tailing her car, she tried to give them the slip. In response they chased her, driving alongside her car, swerving their SUV into her car, forcing her car onto the kerb and stopping in front it to block her exit. She was forced to take new routes and keep changing her course to escape. In what appears to be a hot pursuit over a distance of 7 kms, there were two occasions when one of the accused jumped out of the SUV and ran towards Kundu’s car, while the other blocked the road ahead, forcing her to stop. In the second instance, the accused reached her car, banged on her window and pulled at the door handle to get to her. She escaped only when the police intercepted the accused.

The overwhelming fear and apprehension of physical and sexual harm unleashed by the events are conveyed by factual account of the chase. To quote Kundu’s post, “I was in a full-blown panic attack by now because they would keep trying to corner me and I’d somehow manoeuvre my way out and keep moving. My hands shaking, my back spasming from fear, half in tears, half bewildered, because I didn’t know if I’d make it home tonight.”

Mapping reported events against penal offences

Now let us list the chain of offences under the IPC made out by the above events, noting how each of these corresponds to the case.

  • Criminal intimidation under Sec. 506 is invoked to punish at the very least, any threat to physical injury, and includes in its aggravated form, a threat of grievous injury or death. That the accused tried every possible means of restraining the complainant, to gain physical access and control of her, raises the apprehension that the nature of harm would involve sexual assault. That criminal intimidation was not invoked in complaint at any point is a glaring lapse.
  • Wrongful restraint under Sec. 341 is invoked when the accused intercepts and blocks the victim to prevent her from proceeding in her desired direction. Given the repeated efforts by the accused to stop the complainant’s movement completely, this provision ought to have been retained in the FIR, but was dropped.
  • An attempt to abduct may be registered under the combined provisions, Sec. 511 read with Sec. 365. The former provision criminalises an attempt to commit any offence punishable with imprisonment, while the latter criminalises the act of abducting with the intention of wrongfully confining a person. Together, these offences are non-bailable. The trajectory of events leave no doubt that the both of the accused persons were chasing the complainant to restrain her movement for gaining physical access and control over her person. On two occasions, one of the accused jumped out of his SUV to run towards her car, banging on her window and pulling at her locked door the second time. Clearly, this was aimed at overpowering her physically, to possibly abduct her to perpetrate further harm, possibly involving sexual assault. Again, both these provisions were invoked in the first noting and dropped thereafter.

Acting in unison to make both the accused jointly culpable for each other’s actions, requires the charge of criminal conspiracy under Sec. 120B and the provision of Sec. 34, which conveys that the acts committed by each of the accused were to further a common intention. Both these critical provisions are missing in the first instance as well as in the FIR.

Law only as good as law enforcement machinery makes it

Simple stalking as defined under 354D, entails seeking to make contact with the person to “foster personal interaction” is a completely inappropriate description of what transpired with Kundu that night. The events were driven by anything but to foster interaction, personal or otherwise. The chain of events were designed to terrify and overpower the young woman physically. The attempt by the accused to pull open the car door and physically overpower her are indicative of an attempt to abduct.

The conventional practice of classification of crime is that it be defined by the gravest offence involved, even when several other offences are invoked for purposes of prosecution. A recognition of stalking if at all in this case, would have to be that of ‘aggravated stalking’ which requires the application of the combined provisions of stalking with criminal intimidation. On their own, these two offences fail to capture elements of wrongful restraint and attempt to abduct. Then the curiously missing provision of ‘common intention’ essential for purposes of establishing joint culpability of both accused, could in theory, lead to one of the two accused bearing the heavier burden with the other being let off lightly.

Ultimately, the law is only as good as the law enforcement machinery makes it. If the investigation is limited to a few offences rather than the sequence of all events that comprise the crime, nothing at a later stage can close that gap. This effectively erases from the records the serious crimes, retaining a bare minimum as a fig leaf to assure the public that the legal process was followed. It would be very unfortunate if the law demonstrates yet again its inability to steer its course against those in, or proximate to, high office without the pressure of public outcry and consistent media scrutiny.

Madhu Mehra heads a legal resource organisation advancing women’s rights, Partners for Law in Development.

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