In India, over the past years ago the offence of kidnapping and abduction are rise increasingly and make a serious issue in our country. It is important to know about the offence relating to kidnapping and their punishment under IPC, In this article, we have discussed the provision of kidnapping and abduction and study about their nature and penal provision under IPC.
Kidnapping is an offence in which accused take another person by force, entices, out of keeping, and deceitful means without their consent of that person or their guardian (in case of a minor).
This offence curtails the person right to personal liberty and right to life also that given under part – 3 that talks about fundamental rights under Article – 21. The state has the responsibility to protect the people these rights in order to protect the right they can penalize these offences under IPC.
The offence of kidnapping is mention with their punishment under section 359 to 374 with the main offence of kidnapping and abduction and their aggravating forms according to different circumstances.
The objective of this offence penalised was to protect the rights of person and protection of the minor child, unsound mind person being harmed, seduced, or otherwise exploited by others.
Under IPC, According to section 359, kidnapping is of two forms such as;
- Kidnapping from India.
- Kidnapping from lawful guardianship.
Section 360 defines the kidnapping from India,
In normal sense According to this section, whoever physically conveys another person outside the border of India without the consent of that person or any other person that is legally authorised to give consent on the behalf of that person is said to as kidnapping from India.
Ingredient of this section
- If the accused can physically convey the victim
- And the conveys take outside the border of our country
- without the consent (express or implied) of the victim
- without the consent (express or implied) of any other person that is legally authorised capacity to give the consent on behalf of the victim is said to as kidnapping from India.
The technicality of this section;
This section applies to any victim nevertheless it is minor or major and is only complete when the accused is convey the victim outside the border of India and if accused fails or apprehend before going outside the territory that is to say only attempt not completion of the crime. Till they do not go beyond the limits of India, they have locus poenitentiae available.
Illustration; A, a man living in Delhi and B, convey A without their consent to America. Here, B committed the offence under this section.
Section 361 defines kidnapping from lawful guardianship,
In normal sense According to this section, whoever takes or entices any minor (male under 18 year of age and female under 16 years of age), or person of unsound mind out of the keeping from lawful guardianship without the consent of such guardian is said to as kidnapping from lawful guardianship of that minor or person of unsound mind.
Ingredient of this section;
- Takes/Entices: The first ingredient is the accused must take or entices the victim, and the taking is not must be actual or by constructive force only by way of a mere word also constitute as taking. And, Enticement is also known as manipulation of the mind, if accused can show some desirable thing to minor or unsound such as chocolate, candies, toys etc, for purpose, that minor can self ready for taken away with accused, and the consent of minor/unsound is not consent in eyes of law.
- Minor/unsound: This section only applies to minor children that is of age if male – below 16 years and if female – below 18 years. The burden of proof has lied on the prosecution that the victim at the time of kidnapping is a minor child.
Unsound mind person meaning a person having mental disorder but if a person unconscious by intoxication, poisoning, and the anaesthetic drug cannot say as unsound with the purview this section.
- Without the consent of lawful guardian: it is clear that the consent of a minor or unsound mind is not the consent either express or implied but in this section only consent of lawful guardian matters but, According to this section the ambit of the lawful guardian is so wide; because it covers any person which having charge, protection, maintenance and control that’s why the term used in IPC is “lawful guardian” not “legal guardian”.
- Out of the keeping from the lawful guardian: In this section, the keeping is not considered as normal keeping, but the ambit of keeping in this section is so vast it also implies that if the child or unsound have not gone beyond the control of their lawful guardian the keeping does not end. The keeping ends, when it is beyond the control or parental roof without the knowledge of their guardian.
- If a child is playing in the street without the knowledge of their parents so in this case, the child is under the keeping of their parents.
- If a child goes to the school on a bus then the child is under the keeping of their lawful guardian that is teacher, peon, security guard, bus driver, conductor etc.
Illustration; A, a minor girl played in street B, a man came and entices the girl with chocolates and take away from the park without the consent of her lawful guardian then, here B committed the offence under section 361 of IPC.
An exception of section 361; In this one exception is also laid down that if any person in good faith believed himself the father of an illegitimate child or believed himself to charge of lawful custody of such child then if they will doing such act defining in a section not falling under the ambit of this section. But, their act is always in good faith and not for an immoral or unlawful purpose.
For example; if A believes that he is the father of B an illegitimate child, and if they act in good faith to convincing B, for come to their house without their mother consent would not result in kidnapping from lawful guardianship.
PUNISHMENT OF KIDNAPPING
According to Section 363 of IPC, Whoever committed the offence that defined under section 360 and 361 shall be punished with imprisonment of a term which may extend to seven years and with fine.
Nature of the offence; Cognizable, Bailable ( In U.P it is non – Bailable), Triable by a magistrate of first-class, Non – Compoundable.
Thakorilal D vadagama v. State of Gujarat, In this case, the accused was inducing or entices a 15 years minor girl that, she left her father house and they would give her shelter, and by such enticement the girl out from the lawful guardianship of her father. Supreme court held that the accused was liable for an offence under section 363.
Varadarajan v. State of Madras, In this case, A min or girl can make a relationship with accused and her father knows about this so, Their father can be sent their daughter to their relative house but the girl voluntarily left that house to meet accused at a certain place and after some time they both went to sub-registrar office and become married, Supreme court held that there is no evidence that accused was taken away that girl so this does not fall under the ambit of section 361 IPC.
State of Haryana v. Raja ram, This is the landmark judgement of kidnapping because it gives a definite definition of a lawful guardian under this section that is any person whose take charge, control, protection and maintenance of a child is known as the lawful guardian of that child.
In this case, a man named Jai Narain was made a relationship with a girl of 14 years and seduced it one night and convicted under section 376 of IPC but in this case, raja ram was the person which take the girl from the lawful guardianship of her father, S.C held that it is not compulsory that taking must be physical even persuasion by accused to make willingness on the part of the victim is also said to as taking under this section and raja ram was convicted under section 366 of IPC.
According to section 362, whoever by force compels, or by any deceitful means induces any person to go from one place to another is said to as abduct that person.
Abduction per se is not an offence under IPC, it is merely a definition but if they accompanied by certain guilty intention, assaults then it become punishable for example, in section 364, 365, 366, 367 and 369 it will punishable.
Ingredients of this section;
- By force: The force used by accused must be actual not merely show of force, for example if accused was threatened any girl by a pistol to make her go with him is said to as abduct.
- By Deceitful Means: it also said as misrepresentation or any false ways that use alternatively with force to a person from going one place to another.
- To go from one place to another: it is a continuing offence in which the victim can go from one hand to another in order to fulfil their bad motives such as ransoms, trafficking etc, each of the person liable for abduction.
Illustration; A, a man who wear police uniform to misrepresenting B a girl to convince she came to their house if she goes in this case, A using deceitful means to abduct the B.
Vishwanath v. State of Uttar Pradesh, In this case, it was held that abduction alone is not an offence guilty or malicious intent is also present by accused and IPC can elaborate further penal section of abduction with different circumstances.
The offence of kidnapping and abduction is coming into effect to protect person fundamental rights and penalised for their security. But these offences are so different in their core the main differences are such as Kidnapping is an offence of strict liability and abduction per se is not an offence, kidnapping is a one-time offence but abduction is a continuing offence etc. These both offences are work jointly and very effective according to circumstances and penal sections such as section 364, 365, 366, 367, 368, and 369.
Author: RAHUL SHARMA,
Ideal Institute of Management and Technology affiliated to GGSIPU/ 2nd Year/ Law Student