Author: Simran Pradhan
3rd Year B.A. LL.B
Symbiosis Law School, Hyderabad
Abduction and kidnapping are particular types of offences which come under the law of crimes. The word “kid‟ means child and “napping” means to steal. The word, thus, literally means “child stealing”. Kidnapping under the IPC is not only confined to child stealing. It has been given a wider meaning has been given to it like carrying away of a human being without his/her consent, or without the consent of the legally authorised person of such a human being. Under the above offences, a person is forcibly or secretly taken away, generally, without his/her consent. In case of kidnapping, a person is kidnapped from his/her lawful custody under a lawful guardianship. Section 359 of the Indian Penal Code specifies that there are two kinds of kidnapping namely, Kidnapping from India and Kidnapping from lawful guardianship. Section 360 of the Indian Penal Code defines Kidnapping from India whereas Section 361 defines Kidnapping from lawful guardianship. The words “lawful guardianship” include any person who is entrusted lawfully with a minor’s custody. On the other hand, Section 362 of the Code defines the abduction.
Two essential elements required to constitute the offence under Section 360 is first, taking a person away beyond the geographical territories of India and secondly, such an act of taking away must be done without the consent of that person (victim) or the consent of the legally authorised person. The essential elements of Section 361 include, firstly, the person kidnapped is a minor, who is under 16 years of age in case of male and under 18 years of age in case of a female; or a person of unsound mind who has been taken away from the custody of his/her lawful guardian without the consent of such a guardian. Section 363 talks about punishment for both kinds of kidnapping mentioned above.
Abduction is another offence defined under Section 362 of the IPC and it is not an offence per se, which means that it is not punishable until and unless it is accompanied by the criminal intent to commit another crime. The two essential elements to constitute an offence under Section 362 is forcefully compelling or inducing another person by deceitful means and secondly, the aim of such force/compulsion must result in the moving of the victim from one place to another.
2. CHAPTER 1: MEANING AND NATURE OF KIDNAPPING
“Kidnapping is a codified offence under the Indian Penal Code. The word kidnapping in literal sense means “stealing a child” but however this literal meaning has not been considered in the Indian Penal Code, the word kidnapping in the Indian Penal Code has a wider meaning. The scope of kidnapping in the code is wide enough to include any person, who gets carried away without his consent or will, or, without the consent or will of the person’s guardians. The section 359 – 369 of the Indian Penal Code deals with the offences of kidnapping and abduction, these sections have been differentiated based on the nature of the offence committed and the seriousness of the offence committed, however, all the above-mentioned provisions of the Indian Penal Code have the same motive and need, it is to protect the liberty of the people. Under section 359 of the Indian Penal Code, the offence of kidnapping has been differentiated into two i.e. kidnapping from India and kidnapping from lawful guardianship.”
“Section 360 of the Indian Penal Code deals with the offence of ‘kidnapping from India’, according to the section 360 of the Indian Penal Code, whoever takes any person beyond the territory of India against the will and consent of that person or the legal guardian of that person, is said to have committed the offence of kidnapping from India. Therefore, under this section the age of the victim is not an essential condition to constitute to this offence under the section 360 of the Indian Penal Code, so the essential conditions for an act to constitute as an offence under this section is as follows, firstly, the victim has to be taken beyond the territory of India and secondly, such taking away of the victim must have been done without any consent. It is also not essential that such a person who has been taken has reached a destination outside India. If the accused is caught before he leaves the territory of India then such an act would not amount to an offence under section 360 of the Indian penal code but it would amount to an attempt to kidnap from India.”
“Section 361 of the Indian Penal Code deals with acts which constitute to ‘kidnapping from lawful guardianship’, according to the above-mentioned section, any person who takes a male (who is below the age of sixteen) or female (who is below the age of eighteen) or any person who is not of a sound mind out of the keeping of the lawful guardianship, such a person is said to commit the offence of kidnapping from lawful guardianship. However, unlike the section 360 of the Indian Penal Code where the age of the victim is not an essential condition but for an act to constitute to an offence under section 361 of the Indian Penal Code it is essential that the age of the victim i.e. if male below the age of 16 years and if female below the age of 18 years. It is also immaterial whether the minor consented for such taking away or not, even if the minor has consented for such an act, the person who takes such minor from lawful guardianship will be liable for an offence under section 361 of the Indian Penal Code. Furthermore, in the case of Queen v. PrinceIn this case, the accused, believing that the victim is above the age of 18, kidnapped her but however the girl was below the age of 18 years, so hence the court held the accused liable for kidnapping. Therefore, the intention of the kidnapper is also not relevant for an act to constitute the offence of kidnap.”
3. CHAPTER 2: ESSENTIAL INGREDIENTS UNDER SECTION 361 OF THE INDIAN PENAL CODE
For an act to constitute an offence under section 361 of the Indian penal code, certain essential conditions are required to be fulfilled, these essential conditions are as follows-
- Taking away or enticing a minor or a person of unsound mind from the custody of the lawful guardian– the offence of kidnapping revolves around taking of a boy, who is under the age of 16 years or a girl who is under the age of 18 years from the custody of lawful guardianship, against the will of such guardian and without the guardian’s consent. The word ‘taking’ does not mean that the act of taking must be done with force or fraud, even if the accused persuades and convinces the kid to come along with him/her, even such an act will amount to kidnapping under section 361 of the Indian penal code, this has been held in the case state of Haryana v, Raja Ram. Furthermore, in the case Khalendar Saheb, it was observed that ‘taking’ under the section 361 of the Indian Penal code merely means that the accused is in the possession of the child, so thus in this case the accused took a minor girl from her father’s custody, the court held that it is immaterial whether the girl was willing to or not as the act of taking the minor was complete as soon as the minor girl was wrongfully taken from her father’s custody. The act of persuading and convincing a minor child or a person of unsound mind to leave the custody of the lawful guardian and go with the kidnapper is known as enticing. Now this means that such a person might have left the lawful guardian’s custody with a will but it is the kidnapper who is responsible for inducing such a state of mind. For an act of an accused to constitute as taking away or enticing, such accused must have taken away the child from lawful guardian’s custody or the accused must have persuaded the minor to leave the custody of the lawful guardian, if not it would not amount to the taking away or enticing. In the case of T.D. Vadgama v. the State of Gujarat, wherein the accused had a habit of going to prostitute wherein he found a minor girl, who was at the age of 16 and the accused seduced the minor girl and took her away from her husband, the court held that the accused is not guilty of kidnapping under section 361 as the minor girl before the accused took her was not in the custody of any lawful guardian but the minor child was with the prostitute, so hence, the accused was held not guilty.
- The person from whose custody the child was taken must be a Lawful Guardian – Though the terms lawful guardian and legal guardian are inter used but both of them mean different. A person who is not a legal guardian, may, due to circumstances be a lawful guardian. The term legal guardian denotes someone who is by the virtue of law is appointed as a guardian of a person but a lawful guardian is any person whose custody is valid in law. Therefore, in the case of the State of Maharashtra V. H. Kisan Singh, the accused had taken a lunatic child from the custody of his legal guardian, the court held the accused guilty of kidnapping.
- Taking the person out of the keeping of a lawful guardian –Keeping the person out of a lawful person means that the minor or the unsound person must be taken and kept away from the custody of the lawful guardian, as we already discussed earlier that the term guardian is used in a wide sense and does not only denote parents of the minor or an unsound person. In a case, they met a minor who was aged about 14 years, this girl lived along with another woman and they would earn their livelihood by begging. This girl was persuaded by a goldsmith and the goldsmith got the minor married to his son. However, the accused later persuaded the girl to leave the custody of the goldsmith and go with him. The court held the accused not to be liable as the goldsmith was not a lawful guardian.
The offence of kidnapping from lawful guardianship is complete when the accused has taken the minor out of the custody of the lawful guardian and such act of taking away is not a continuing act.
4. CHAPTER 3: OTHER ACTS AMOUNTING TO KIDNAPPING
There are many other acts, which though they have not been committed with the intention to commit the offence of kidnapping from the lawful guardian, but they amount to kidnapping. Marrying a girl without the consent of her lawful guardian also amounts to the offence of kidnapping. In a case, wherein, a minor girl who by the court order was in her mother custody and the father of the minor girl, removed the minor girl from school and this has been done without consent and will of the mother of the minor, the court held the father guilty for kidnapping under Section 361 of the Indian Penal Code. Among the Hindu, the answer whether the father or the mother has lawful custody of the child depends on the fact whether the child is legitimate or not, if the child is legitimate then the father will be entitled to child’s custody and whereas, if the child is illegitimate then the mother is entitled to have the custody of such child. However this is different under the Muslim law, under Muslim law the mother has the right to have the custody of the son until he attains the age of 7 years and the daughter until she attains puberty, so therefore, if a Sunni father without lawful justification takes away his son, who is below the age of 7 years or his daughter has not yet attained the age of puberty then the father will be held liable for committing kidnapping under the section 361 of the Indian penal code. In the case of Aishabai, the court held that even if the child is illegitimate or the mother is divorced, is entitled to the custody of the child
5. CHAPTER 4: ABDUCTION AND ITS ESSENTIAL INGREDIENTS
Abduction is defined as “whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person”. This section of the Indian Penal code just merely defines abduction as a term and it is not an offence per se under the Code. It means that abduction is not an offence by itself. Abduction will be considered an offence and thus will be punishable only when it is accompanied by a certain criminal intent to commit some other offence.
The essential ingredients of abduction are as follows:
- Forceful compulsion or inducement of a person by use of deceitful means: The offence of abduction must constitute the use of force by the offender/abductor or there should be an element of inducement by use of deceitful means. There must be the actual use of force against the victim and the not mere threat of use of force. ‘Force’ has been defined under Section 349 of the Code and the same meaning applies in Section 362 as well. In the case of Gurucharan Singh vs State of Haryana the accused, threatening the victim with a pistol took her to his fields outside the village. The Court convicted the accused of abduction because there was the use of force as required for the offence of abduction.
‘Inducement’ means that there must be an active suggestion made by the abductor to the victim, which leads the latter to move to another place where the victim would not have gone if not for such a suggestion. ‘Deceitful means’ suggests the use of misleading statements made by the abductor aimed to deceive the victim thus persuading him/her to leave or go to a particular place
In the case of R. v Cort, a 17-year-old orphan girl was raised by her guardian and her neighbour induced her to leave her house by giving her the assurance that he would either marry her or get her married. Instead, he gave the girl away to his friend, who started to have illicit relations with her. The neighbour was held guilty of abduction and it was held that the expression ‘deceitful’ is wide enough to accommodate inducing a girl to leave her guardian’s house on a false pretext. It also implies the use of fraud and misrepresentation by any act or conduct.
In the case of Bahadur Ali v King-EmperorThe accused falsely misrepresented himself to be a police constable and for a ransom for Rs.600, he kept a girl in his house until he received the amount. The court held that such an act did amount to abduction as the abductor deceived the victim by falsely representing himself.
- The object of such compulsion or inducement must be going off a person (victim) from any place : Another essential element required to constitute the offence of abduction is that the use of such force or deceitful means (by the abductor) as mentioned above, must result in the person (victim) going from one place to another place. It doesn’t need to be only from the custody of a lawful guardian, which is in the case of kidnapping. In the case of Allu vs Emperor, it was held that carrying a grown-up woman by the use of force against her own will even to restore such a woman to her husband would amount to abduction.
Moreover, in the case of abduction, the role of consent is vital. In the kidnapping, consent of the victim, that is, the person being taken away is of no relevance, whereas in case of abduction if consent is given by the person who is being moved, it will not amount to an act of abduction. For example, M, a minor, is the daughter of N. M goes away with C voluntarily and indulges in sexual relations with him. Here, since M wilfully consented to go with C, C cannot be held liable for the offence of abduction. Moreover, there was no inducement or use of force, as is required to constitute the offence of abduction.
Abduction is considered as a continuing offence, unlike kidnapping, as it involves moving a person, against his/her will, from one place to another. It doesn’t just include the first time a person is abducted from one place.
6. CHAPTER 5: ABDUCTION AMOUNTING TO AN OFFENCE
As mentioned earlier, abduction is not an offence per se under the Code and will be considered an offence only when accompanied by the intent to commit another offence. In other words, abduction is considered an offence only in case it is done with the intention to:
- Commit murder (Section 364): Under this section, any person abducting another person to murder that another or put that person in the danger of being murdered, shall be punished withimprisonment for life or rigorous imprisonment extending up to ten years and shall be liable to fine. This offence is cognizable but non-compoundable and non-bail-able. In the case of State of Assam vs. Goljer Ali and Nine OrsThe deceased was offered a Bidi puff and thus was induced to go to the accused’s house where he was killed by beating. As abduction under Section 362 involves both using force or inducement by deceitful means, the accused was held liable for the offence. In another case of Sucha Singh v. the State of Punjab, during the period of insurgency, two young Sikh boys were abducted from their houses by armed assailants during night time. They were later killed by the abductors, who were charged with murder.
- Wrongfully and secretly confining a person (S. 365): A person abducting or kidnapping another to wrongfully confine them are liable for punishment extending up to 7 years of imprisonment as well as fine.
- Compel a woman to marry (S. 366): Any person abduction or kidnapping a woman to compel her to marry a person against her will, or knowing it to be likely that she will be compelled, or to force her into illicit intercourse, or knowing it is likely that she will be forced; shall be liable for punishment extending up to 10 years of imprisonment as well as fine.
- Subject person to grievous hurt, slavery etc. (S. 367): A person abducting or kidnapping another to cause that another grievous hurt or subjecting him/her to slavery; or knowing that the another (victim) is likely to be subjected to grievous hurt or slavery, is liable for punishment extending up to 10 years of imprisonment as well as for fine.
- Steal from a person under 10 years of age (S. 369): Any person abducting or kidnapping a child below the age of ten years to dishonestly take movable property from the person of such a child is liable for punishment extending up to 7 years as well for fine.
7. CHAPTER 6: DIFFERENCES BETWEEN KIDNAPPING AND ABDUCTION
- Concerning the age of the aggrieved person, in cases of kidnapping, according to Section 361 of the Code, the aggrieved person must be 16 years of age in case of males and 18 years of age in case of females. In the case of abduction, age holds no relevance. Any person who uses force or is induced by deceitful means another person to go from one place to another, irrespective of age, shall be liable for abduction.
- Concerning lawful guardianship, in case of kidnapping, this crime involves taking away the minor child from the lawful guardianship of a person who has been lawfully authorised to take care of the minor child.
In the case of abduction, since the age of the person holds no importance, the concept of lawful guardianship does not matter.
- Concerning the means used to commit both the crimes, in case of kidnapping, the means used is irrelevant as it involves mere taking away of the child by the kidnapper.
In the case of abduction, the means used to abduct the child can be a force, inducement by deceitful means or even by compulsion.
- Concerning consent, in cases of kidnaps, consent of the minor being kidnapped is immaterial and it does not relieve the accused from the charges against him because a minor, according to law, is incapable of giving consent.
In the case of abduction, the consent of the person so abducted is material as it acts as a defence for the accused from the offence he/she is charged with.
- Concerning intention, in case of kidnapping, the intention of the accused is not of relevance to the crime committed by him/her.
In the case of abduction, the intention of the accused is very vital in ascertaining the guilt of the accused.
- Concerning punishment, Section 363 of the IPC provides for punishment for kidnapping for a term extending up to seven years or even ten years of imprisonment (in some cases as discussed above) and the kidnapper is liable for fine as well. Kidnapping is an offence which is punishable per se.
In the case of abduction, it is not punishable per se, it is only punishable when done to commit another offence as previously discussed above.
- Concerning continuity of crime, kidnapping is not a continuing offence because the offence is complete immediately when the minor is removed from his/her lawful guardianship by the accused.
In case of abduction, it is a continuing offence as it is not completed immediately when the person is first abducted from one place, it involves moving a person (victim) from place to another against his/her will.
8. CONCLUSION AND SUGGESTIONS
Kidnapping is a type of offence which initiates from wrongfully confining a person, but the gravity of the offence of kidnapping is much higher, as it hinders the liberty and freedom of a person. There are several cases wherein, the accused was held guilty for kidnapping even though he/she genuinely believed that the victim is not a minor, this also results in cases, wherein, the victim willingly went out of the custody of a lawful guardian with the accused but the accused would be held guilty for kidnapping under Section 361 of the Constitution. Thus the courts have to take and decide each case based on the facts and circumstances and not use the law concretely. In recent times, courts have widened the purview of the provisions relating to kidnapping and now even if a father forcibly marries his daughter, it will be held to be kidnapping. This widening of the application of the law is necessary as the type of offences and the crimes in the society has been constantly evolving and increasing and hence, it is necessary for the courts to increase the ambit of the said sections by making new precedents and including new acts which amount to the offence of kidnapping.
Consistent efforts have been made to spread public awareness about kidnapping and abduction at all levels i.e, at schools, colleges and even at workplaces to adults. When the public is aware of the rights that they are entitled to against kidnapping and abduction, the crime rate can be decreased to a large extent. Mere legislative amendments will not result in drastic positive changes until and unless the peoples’ state of mind is altered. Parents, teachers and other adults play a vital role in making the youth aware of such crimes so that they can protect themselves when the time comes. Moreover, the media, being a platform which reaches out to millions of people at once, should take steps to spread awareness and sharpen the general public by publicizing the important news and current laws as well as amendments that take place in the country concerning kidnapping and abduction.
Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India.
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a 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.
State of Haryana v. Raja Ram, AIR 1973 SC 819.
(1875) LR 2
AIR 1973 SC 819
(in re) (1995) crLj 581
SagarMinaga olipuri v. State of Gujarat, 1996 Guj LR. 378
AIR 1973 SC 2313
Empress V. Pemantle, ILR (1882) 8 Cal 971
AIR 1954 Bom 339
NemaiChattorag V. Queen Empress, (1900) 27 Cal 1041
Ramji Vithal (1957) 60 Bom LR 329
(1904) 6 Bom LR.536
 Section 362 of Indian Penal Code, 1860
 AIR 1972 SC 2661
14 (2004) 4 All ER 137 (CA)
AIR 1923 Lah 158
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004 Edition) 2008, p. 657
13 AIR 1925 Lah 512
(1997) 1 GLR 420