SECTION 359: KIDNAPPING
Kidnapping is of two types: kidnapping from India, and kidnapping from lawful guardianship.
Kidnapping literally means ‘child stealing’. Forms of kidnapping can overlap each other. For example a minor kidnapped from India may well kidnapped from his lawful guardianship also.
SECTION 360: KIDNAPPING FROM INDIA
Whoever any person beyond the limits of India without the consent of that person, or of some person authorized to consent on behalf of that person, is said to kidnap that person from India.
“India” means the territory of India excluding the state of Jammu and Kashmir (sec 18, IPC).
The age of consent for the purpose of kidnapping is 16 years for boys and 18 Years of girls.
SECTION 361: KIDNAPPING FROM LAWFUL GUARDIANSHIP
Whoever takes or entices any minor under the age of sixteen if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping lawful guardianship of minor or person of such unsound mind, without the consent of such guardian is said to kidnapping a person from lawful guardianship.
EXPLANATION: lawful guardian in this section include any person lawfully provide care or custody of such minor or other person.
ANALYSIS of Sec. 361
Section 361 is intended for more protection of the minors and persons of unsound mind than for the right of guardian of such person.
(1). Taking or enticing-“takes” means to cause to go, to escort, it doesn’t imply force. “Entice” involves an idea of exciting hope or desire in the other. It is not necessary that taking and enticing must be shown to have been means of fraud or force.
In VISHNU V/S STATE,(1997) the main accused took the girl away to a railway station. The co-accused met there. Thus the co-accused had played no part in taking away the girl from her parents, she could not be held liable for kidnapping. The main accused was held liable under Sec. 363.
(2). A minor or any person of unsound mind- The unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic excess or other reasons. Where a girl aged 20 years (i.e. a major) was made unconscious due to dhatura poisoning when she was taken away by A , it was held that A was not guilty of kidnapping because the girl could not be said to be of unsound mind.
(3). Out of keeping of lawful guardian: “keeping means within the protection or care of the guardian it is not necessary that the minor should be in physical possession of the guardian “keeping” connotes the idea of charge, protection, control, guardian’s charge being available all the time in every time of necessity.
(4).Without the consent of such guardian: the consent of the minor or of a person of unsound mind immaterial, because there are in law in capable of assigning a valid consent.
In GOOROODOSS RAJ BUNSEE (1865) a person carried off, without the consent of her father, a girl to whom he was betrothed by her father, because the father suddenly changed his mind and broke off the engagement, it was held that her father was guilty of kidnapping.
Author: kanika panwar,
IDEAL institute of management and technology & school of law, 2nd year/BALLB