May 6, 2021

Kidnapping and Abduction under Indian Penal Code

The category of offences related to kidnapping and abduction is dealt under the head of “Of Kidnapping, Abduction, Slavery and Forced Labour” under the Indian Penal Code, 1860. Often these terms “kidnapping” and “abduction” are used synonymously, but the code has separately dealt with it. Thus, the details of each will be discussed forthwith.

Kidnapping

The word “kidnapping” has been derived from the word ‘kid’ meaning child and ‘napping’ to steal. Thus the word literally means “child stealing”. Kidnapping under the code is not confined to child stealing. It has been given wider connotation as meaning carrying away of a human being against his/her consent, or the consent of some person legally authorised to accord consent on behalf of such person.

Kidnapping, according to Walker[1] 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.

Section 359 of the Indian Penal Code deals with what is ‘Kidnapping’. According to this section, kidnapping can be classified as ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.Section 360 of the Code says that when a person is conveyed beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.

This section makes kidnapping from the territorial limits of India a punishable offence under the Indian Penal Code. It makes use of the word “convey” which literally means ‘to transport’, ‘carry’ or ‘take’ from one place to another. So, the offence of kidnapping under this provision is complete when a person is carried, taken or transported to a place which is outside the geographical territory of India. Reaching the destination in a foreign country is not relevant for the accomplishment of this crime. On similar lines, it is important to note that when the accused is in the process of conveying a person from the territory of India but his actions are interjected before he can cross the Indian Territory, he may be liable for attempt to kidnap under section 359 but will not be guilty of commission of the actual offence. Absence of consent on the part of the victim is also a necessary element of the offence.

Section 361 of the Code provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, person so enticing will be held liable for kidnapping such minor or person from lawful guardianship. The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

However, 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

In the case of State of Haryana v Raja Ram[2], 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 minor which kept her away from her lawful guardianship and therefore it amounted to ‘kidnapping’.

In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent. The consent obtained from the person shall be a tainted one (as seen in the case of State of Haryana v Raja Ram).

In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused as held in the case of Queen v Prince[3]

Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship.

Following are the essential ingredients of the offence of kidnapping from lawful guardianship:

1. Taking or enticing: the word ‘takes’ means to cause to go, to escort or to get into possession with or without the use of force. Taking need not be constituted by a single act. A whole series of acts might together constitute the process of taking; once the minor has been taken out of the keeping of lawful guardian the act is complete. When the accused takes the minor with, whether he was willing or not the act of taking is complete. The word ‘entice’ involves an idea of inducement by exciting hopes or desire in the other. It means alluring or attracting the child to go with the accused. The mental attitude of the minor is relevant in enticing i.e. the act of enticing shall not be complete unless the minor attempts to do a thing which he or she would not have done otherwise.

‘Enticing’ is inducing a minor to go of her own accord to the kidnapper. There is distinction between taking and enticing. The mental attitude of 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 held in Biswanath Mallick vs State of Orissa[4], Persuasion by the accused which creates a willingness on the part of minor to be taken out of the keeping of the lawful guardian would be sufficient but if the minor without any inducement goes herself out of the keeping of lawful guardianship and the accused person accompanies her then in such a situation he shall not be liable for the offence.

The promise of marriage made to the minor girl for leaving the house of the lawful guardian shall be considered as an enticement. Also, the distance to which minor is taken away is immaterial. If the accused takes away minor out the keeping of the lawful guardian without the consent of the guardian and after sometime minor returns to his house, still the accused shall be held liable for the offence.

2. Out of keeping of lawful guardian: the word ‘keeping’ means within the protection or care of the guardian. The minor doesn’t need to be in the physical possession of the guardian. It connotes the idea of charge and protection whether actual or constructive. A child may not always be in the direct physical custody of the guardian but as long as the whereabouts of the child are known and there is control upon the movement of the child, he is said to be within the keeping of the guardian. When a child is taken to such an area outside the circle where the guardian no longer knows the whereabouts of the child nor any control upon his movements, the child is said to be kidnapped. The guardianship not only includes parents but also persons to whom the custody of the child has been lawfully entrusted e.g. teachers, relatives, servant etc.

If the minor is not in the custody of a lawful guardian, the offence cannot be committed. Thus an orphan cannot be kidnapped, similarly, a minor who has abandoned the house of her guardian on her own will and has no intention return, she cannot be considered to continue in the keeping of her lawful guardian.

3.Without the consent of the guardian: the consent of the child is completely immaterial and it is the consent of the guardian alone which is taken into consideration because the child is considered incapable of giving valid consent. The consent given under this section should be free i.e. it must not have been obtained by fraud or misrepresentation. If the guardian gives consent after the commission of the offence, the accused shall still be liable for the offence.

Ten Conditions, Of Kidnapping in IPC India has comprehensive legislation to counter kidnapping, with the Indian Penal Code outlining 10 specific offences related to the purpose of the kidnapping. These are:

  • Kidnapping a minor for purposes of begging;
  • Kidnapping in order to murder
  • Kidnapping for ransom;
  • Kidnapping with the intent to secretly and wrongfully confine a person;
  • Kidnapping a woman to compel her into marriage;
  • Procuration of a minor girl;
  • The importation of a girl from a foreign country;
  • Kidnapping in order to subject a person to grievous harm, including
  • Slavery kidnapping a child under 10 years old;
  • Stealing or buying a minor for the purpose of prostitution.

Abduction

Abduction in common language means carrying away of a person by fraud or force. In United Kingdom, Kidnapping is used for both minors and adults, whereas in India kidnapping is used for minors and abduction for adults.

In view of the definition, the word ‘force’ connotes actual force and not merely show or threat of force. It would be an offence to carry a grown-up woman by force against her own will even with the object of restoring her to her husband held in Allu vs Emperor[5], The expression deceitful as used here, is wide enough to include inducing a girl to leave her guardian’s house on a pretext. It also implies the use of misrepresentation and fraud by act or conduct held in R. vs Cort[6]

‘Abduction’ has been defined in Section 362 of the Indian Penal Code which says that if a person either by force compels a person or induces another person to go from any place is said to abduct such person. In the case of Bahadur Ali v King Emperor [7], the accused misrepresented himself as a police constable and kept a girl in his house for a ransom of Rs 600. The court held that his act amounted to abduction.

In case of Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be booked with abduction

In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her. In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.

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. Abduction is a continuing process and it this the person so abducted is removed from one place to another.

Other Offences Relating to Kidnapping and Abduction

Section 363A states that 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

Section 364 states that 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. Example if 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. Or 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.

Section 365 states that Whoever kidnaps or abducts any person with 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.

Section 366 states that Whoever kidnaps or abducts any woman with 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.

Section 367 states Whoever kidnaps or abducts any person in order that such person may be subjected, or may be 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.

Section 368 states that 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.

References

[1] K.D. Gaur, Textbook on Indian Penal Code, Fifth Edition 2014

[2] AIR 1973 SC 819.

[3] (1875) LR 2

[4] 1995 Cr.LJ 1416 (Ori)

[5] AIR 1925 Lah 512

[6] (2004) 4 All ER 137 (CA)] [7] AIR 1923 Lah 158


Author Details: Ruchika Baweja (Institute of Law, Nirma University)

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