kidnapping
The word “kidnapping” has been derived from the word ‘kid’ meaning child and ‘napping’ to steal. Thus the word literally means “child stealing”. However, under the Indian Penal Code it is not confined to child stealing. It has been given broader implication, i.e., carrying away of a human being against his/her consent, or the person accused removes the person from his/her lawful guardianship.
According to Walker, Kidnapping, is the common name for the common law offence of carrying away, or secreting, of any person against his will, or against the will of his lawful guardians. It may be constituted by false imprisonment, which is total restraint of a person and his confinement without lawful authority or justification.
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Section 360 – Kidnapping from India.
Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.
Illustration
A takes B without his consent or without B's lawful guardians' consent to London, A would be committing this offence.
Ingredients -
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The person should be conveyed out of the borders of India.
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The person should be conveyed without his consent or without the consent of the person who is legally authorized to consent on his behalf.
Thus, if a person is not capable of giving valid consent as in the case of a minor or a person with unsound mind, the consent of his lawful guardian is required to take him outside India.
2. Kidnapping from lawful guardianship –
Kidnapping from lawful guardianship means taking a child away from his lawful guardian without the guardian's consent.
Section 361 - Whoever takes or entices any minor under 16 years of age if male or 18 years of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation –
The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or another person.
Exception –
This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
Ingredients-
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There must be taking or enticing of a minor, or a person of unsound mind; Biswanath Mallick vs State of Orissa[1], explains the meaning of ‘Enticing’, which is inducing a minor to go of her own accord to the kidnapper. There is a distinction between taking and enticing. The mental attitude of the child is immaterial in the case of taking when the child is taken away. But the word ‘entice’ involves the idea of inducement or allurement.
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Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female; as in Queen vs Prince[2], the kidnapped girl turn turns out to be under 18 years of age, the kidnapper will be held liable, even though he had a bonafide belief and reasonable ground for believing that she was over eighteen years.
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Taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; For instance, in the case of State of Haryana v Raja Ram[3], the accused induced the prosecutrix who was 14 years of age away from her lawful guardianship. The Supreme Court held that the persuasion by the accused created a willing on the part of a minor which kept her away from her lawful guardianship and therefore it amounted to ‘kidnapping’.
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The intention of the accused on taking or enticing must be without the consent of such guardian- In Chajju Ram vs State of Punjab[4], a minor girl was taken away out of the house for only about 20 - 30 yards. it was held that it was kidnapping because the distance is immaterial.
The courts have formulated certain guiding principles in section 361, besides its essential ingredients, which are as follows:
In the case of minor girls, this section is attracted irrespective of the question of whether she is married or unmarried.
The distinction between taken away and allowing a child to follow -
In Vardrajan vs State of Madras[5], SC observed that there is a difference between taking away a minor and allowing the minor to follow. If a person knowingly does an act which he has reason to believe will cause the child to leave the guardian, then it would amount to taking away the child, however, if the child follows a person even when a person does not do any action meant to entice a child to leave his guardian, he cannot be held responsible.
For instance, if a child follows an ice-cream vendor, without any enticement from the vendor, while the guardian fails to keep the watch, the vendor cannot be held guilty under this section.
The defence that the girl was easy virtue would not be sufficient to make accused, not liable.
Punishment- Section 363
Kidnapping is a substantive offence. It provides punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.
1. Section 363-A in The Indian Penal Code – Kidnapping or maiming a minor for purposes of begging.
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging, shall be punished with imprisonment for life, and shall also be liable to fine.
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.
(4) In this section,—
(a) “begging” means—
(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;
(b) “minor” means—
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.]
2. Section 364 in The Indian Penal Code – Kidnapping or abducting in order to murder.
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 imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Illustrations
(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.
3. Section 364-A in The Indian Penal Code – 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 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.]
4.Section 365 in The Indian Penal Code – Kidnapping or abducting with intent secretly and wrongfully to confine a person.
Whoever kidnaps or abducts any person with the intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
5. Section 366 in The Indian Penal Code – Kidnapping, abducting or inducing woman to compel her marriage, etc.
Whoever kidnaps or abducts any woman with the 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 in order 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 imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code 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 that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].
6. Section 366-A in The Indian Penal Code – Procuration of a minor girl.
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 the intent that such girl maybe, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.]
7. Section 366-B in The Indian Penal Code – Importation of girl from a foreign country.
Whoever imports into India from any country outside India or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with the 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 imprisonment which may extend to ten years, and shall also be liable to fine.]
Sections 366 and 366 B are intended to punish the export and import of girls for prostitution. Section 366 A deals with procuration of minor girls from one part of India to another part. Section 366B makes it an offence to import into India from any country outside India below the age of twenty-one years for the purpose of prostitution.[2]
8. Section 367 in The Indian Penal Code – Kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.
Whoever kidnaps or abducts any person in order that such person may be subjected, or maybe so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
9. Section 368 in The Indian Penal Code – Wrongfully concealing or keeping in confinement, kidnapped or abducted person.
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Abduction- Section 362
‘Abduction’ means, if a person either by force compels a person or induces another person to go from any place is said to abduct such person.
Ingredients -
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A person goes from one place to another - A person cannot be abducted at the same place where he is. For abduction to take place, the person should physically move from one place to another.
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Either by forcible compulsion or by inducement - The movement of the person must be because of some compulsion or because of some inducement. For example, A threatens B on gunpoint to go from his house to another city. Here, A has compelled B to go from his house and is thus guilty under this section.
Here, the age of the abducted person is immaterial. Thus, even a major can be abducted if he is forced to go from one location. But if a minor is abducted, it may amount to Kidnapping as well. Further, it is a continuing offence. As long as a person is forced to go from place to place, abduction continues.
Punishment-
Section 359 to 369 of the code have made kidnapping and abduction punishable with varying degree of severity according to the nature and gravity of the offence. The underlying object of enacting these provisions is to secure the personal liberty of citizens, to give legal protection to children of tender age from being abducted or seduced for improper purposes and to preserve the rights of parents and guardians over their wards for custody or upbringing.
Abduction is only an auxiliary act and is not punishable in itself. Therefore, there is no general punishment for abduction in the Indian Penal Code.
But some specific types of abduction attract the following punishments:
Difference between abduction and kidnapping
[2] (1875) LR 2
[4] AIR 1968