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KIDNAPPING AND ABDUCTION

SUBMITTED BY

NAMRATA KHURANA

BBA LLB- A ROLL NO.28

Symbiosis Law School, NOIDA


Symbiosis International University, PUNE

On
2, APRIL, 2012

Under the guidance of

Vikram Singh

(Co- Faculty)

Symbiosis Law School, Noida


Symbiosis International University Pune

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CERTIFICATE

The project titled KIDNAPPING AND ABDUCTION submitted to the Symbiosis Law
School, NOIDA for IPC (Criminal Law) as part of internal assessment is based on my
original work carried out under the guidance of VIKRAM SINGH. The research work has
not been submitted elsewhere forward of any degree.
The material borrowed from other sources and incorporated in the project has been duly
Acknowledged. I understand that I myself would be held responsible and accountable for
Plagiarism.

Signature of the candidate

Date: 2- 4- 2012

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ACKNOWLEDGEMENT

It is a great pleasure for me to put on records our appreciation and gratitude towards and
Vikram Singh for his immense support and encouragement all through the preparation of this
report.
I would like to thank the college for providing us with a well-equipped library. Last but not
the least, I would like to thank all the friends and others who directly or indirectly helped us
in completing our project report.

Date- 2/4/2012

Place- NOIDA

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INDEX
1. PART A

KIDNAPPING.......................................................................................... 5, 6,7

2. PART B

ABDUCTION............................................................................................... 8,9

3. PART C

AGGRAVATED FORMS OF KIDNAPPING...............................................10 to 17

4. PART D

SLAVERY AND FORCED LABOUR..............................................................17

5. PART E

SALE OR PURCHASE OF MINORS FOR IMMORAL PURPOSES...........18

6. PART F

PROPOSAL FOR REFORM................................................................................19, 20

7. BIBLIOGRAPHY.....................................................................................21

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PART A
KIDNAPPING AND ABDUCTION
Section 359 Kidnapping - Kidnapping is of two kinds: Kidnapping from India, and
kidnapping from lawful guardianship.

Section 360 kidnapping from India Whoever conveys any person beyond the limits of
India without the conveys of that person, or of some person legally authorised to consent on
behalf of that person, is said to kidnap that person form India.

The IPC recognises two kinds of Kidnapping: kidnapping from India and kidnapping from
lawful guardianship. Kidnapping in any form curtails from the liberty of an individual.
Especially, it impinges the right to life guaranteed under art 21 of the Constitution of India
and human rights. It causes terror in the mind of the people and has deleterious effect on
civilised society1.

Kidnapping from India-


The words used in the section are beyond the limits of India. This means that the offences
under this section are complete, the moment a person is taken outside the geographical
territory of India. It is not necessary that the person should reach their destination in some
other foreign territory. By the same token, if a person should reach their destination in some
other foreign territory. By the same token, if a person is apprehended before he crosses the
Indian border, then the offences will not be complete. At best, it may amount to an attempt to
commit the offence of kidnapping form India under s 360, IPC. Till then, he has a locus
paenitentia.

The term India has been defined in s 18, IPC, as the territory of India excluding the state of
Jammu and Kashmir.

The taking away of a person outside the territory of India is made a separate offence, because
it has the effect of removing a person from the jurisdiction of the Indian Law enforcing
agencies.

Kidnapping from Lawful Guardianship-


Section - 361. Kidnapping from lawful guardianship 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 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 other person.

1 Tarun Bora v. State of Assam (2002) 7 SCC 39

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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.

Section 361 deals with taking away of minor children from lawful guardianship. It is
equivalent to what is termed child stealing in England. The object of the section is to protect
minor children and person of unsound mind from being seduced, harmed or otherwise
exploited by others. It is to afford protection and security to the wards. It also naturally
recognises the right of the guardians to control and take charges of their wards who may be
minors and/ or people of unsound mind.

Taking and Enticing


All that is requires to bring an act within the purview of this section, is to take or entice a
minor or a person of unsound mind from the keeping of the lawful guardian. Taking implies
neither force nor misappropriation. The word means to go, to escort. The consent of the
minor child is of no relevance, because a minor or a person of unsound mind is not consent.
But there must be some active part played by the accused for taking the minor 2. Simply
permitting or allowing a minor to accompany one will not amount to an offence.

In S Varadarajan V. State of Madras3, a girl who was on the verge of attaining majority,
voluntarily left her father house, arranged to meet the accused at a certain place and went to
the sub registrars office, where the accused and the girl registered an agreement to marry.
There was no evidence whatsoever that the accused had taken her out of the lawful
guardianship of her parents, as there was no evidence whatsoever that the accused had taken
her out of the lawful guardianship of her parents, as there was no active part played by the
accused to persuade her to leave the house. It was held that no offence under this section was
made out.

In State of Harayana V. Raja Ram4, the prosecutrix was a young girl of 14 years. She became
friendly with a person called Jai Naraian, aged 32, who was a frequent visitor. When Jai
Naraian was forbidden by the prosecutrix s father from coming home, he sent messages
through one Raja Ram. She was constantly persuaded to leave the house and come with Jai
Naraian, who would keep her in a lot material comfort. One night, the prosecutrix arranged to
meet Jai Naraian in his house and went to meet Jai Narain in his house and went to meet him

2 State v. Rajayyan (1996) CrLJ 145 (Ker); Gaurish v. State of Maharashta (1997) CrLJ 1018 (Bom.);
Deep Chand @ Dipu v. State (National Capital Territory, Delhi) (2001) CrLJ 463 (Del).

3 AIR 1965 SC 942, (1965) 2 CrLJ 33 (SC); also see Lalta Prosadv. State of Madhya Pradesh AIR
1979 SC 1276; Deb Kumar Jain v. Kamala Bai (1983) 2 Crimes 85 (MP); Manornjan v. State of
Maharashtra (1992) 1 Crimes 69 (Ori).

4 AIR1973 SC819, 1973CrLJ 651 (SC)

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where she was seduced by Jai Narain. Jai Narain was convicted under s 376 for rape of
minor and Raja Ram under s 366. The question before the supreme court was whether Raja
Ram could said to have takenthe prosecutrix, since she was willing on the part of the minor
to be taken out of the keeping of the lawful guardian, would be sufficient to attract the
section.

The word entice connotes the idea of inducement of pursuance by offer of pleasure or some
other form of allurement. This may work immediately or t may create continuous and gradual
but imperceptible impression culminating after some time in achieving its ultimate purpose of
successful inducement.5

Keeping of Lawful Guardian


Section 361 makes the taking or enticing of any minor person or person of unsound mind out
of the keeping of the lawful guardian an offence. The meaning of the words keeping of the
lawful guardian came up for consideration before the Supreme Court in the State of
Harayana v. Raja Ram.6 The court observed that the word keeping, in the context, cannotes
the idea of charge, protection, maintenance and control. The court compared it with the
language used in English Statues, where the expression used was taken out of the
possession and not out of the keeping. The difference in the language between English
statues and this section only goes to show that s 361 was designed to protect the scared right
of the guardians with respect of their minor wards.

The term used in the statue is lawful guardian and not legal guardian. The term lawful
guardian is a much wider and general term than the expression legal guardian would be
parents or guardians appointed by courts. Lawful guardian would include within its meaning
not only legal guardians but also such person likes a teacher, relatives etc, who are lawfully
entrusted with the care and custody of minor.7

Age of Minor -
As per the section the age of minor child at the relevant point in the time should be less than
16 in respect of a male, and less than 18 in respect of a female, in order to constitute an
offence under this section.

PUNISHMENT FOR KIDNAPPING -

5 Thakorlal D Vadgama v. state of Gujarat AIR 1973 SC 2313, (1973) CrLJ 1541 (SC)

6 AIR 1973 SC 819 CrLJ 651 (SC)

7 State v. Harban Singh Kisan singh AIR 1954 Bom 339; Kesar v. Emperor Air
1919 Pat 27

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Section 363. Punishment for kidnapping whoever kidnaps any person from India or from
lawful guardianship, shall be punished with imprisonment of either description for a term
which which may extend to seven years, and shall also be liable to fine.

In Chandrakala v. Vipin menon,8 the supreme court declined to convict the father, who was
accused of kidnapping his minor daughter who was living with her maternal grand father due
to strained relationship between her parents, on the ground that the accused was the natural
guardian of the child.

PART B
ABDUCTION
Section 362 Abduction whoever by force compels, or by any deceitful means include, any
person to go from any place, is said to abduct that person.

Section 362 merely defines the term abduction. Therefore, abduction perse is not offence
under the IPC. It is an offence when it is accompanied by certain intent to commit another
offence. Force or fraud is essential to make abduction punishable.

Ingredients
The essential ingredients of this section are:

(a) Forcible compulsion or inducement by deceitful means;


(b) The objects of such compulsion or inducement must be the going of a person from
any place.

It must be noted that abduction per se as defined under s 362 is not an offence, 9and hence
is not punishable.10 Only if the abduction falls in the categories provided under ss 364,
365, 366, 367 and 369, will it amount to an offence. Thus, abduction is an offence only if
it is done with intent to :

(a) Murder (s 364);


(b) Secretly and wrongfully confining a person (s 365);
(c) Induced woman to compel her marriage (s 366);
(d) Subject person to grievous hurt, slavery etc (s 367);
(e) Steal from a person under 10 years ( s 369).

By Force
8 (1993) 2 SCC 6

9 Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67, (1960) CrLJ 154 (SC)

10 Chote Lal v. State of Harayana AIR 1979 SC 1494, (1979) CrLJ 1129 (SC)

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The term force as embodied in s 362, IPC, means the use of actual force and not merely
show of force or threat of force. 11 Where an accused threatened the prosecutrix with pistol
to make her go with him, it would amount to abduction under this section.12

Deceitful Means
Under this section, including a person by deceitful means to go from any place is also an
offence. Deceitful means is used as an alternative to use of force. Thus, a person can
use force to compel, or in the alternative deceive a person to leave a place. Either way, it
amounts to. Deceitful means misleading a person by making false representations and
thereby persuading the person to leave any place.

To go from any place


An essential element of abduction is compelling or inducing a person to go from ay place.
It need not be only from the custody lawful guardian as in the case of kidnapping. For
unlike kidnapping, abduction is continuing offence. The offence of kidnapping is
complete, the moment a person is removed from India or from the keeping of lawful
custody of guardian. But, in the case of abduction, a person is abducted not only when is
first taken away from any place, but also when he is subsequently remove from one place
to another. A kidnapped girl managed to escape from the kidnappers when she met the
accused, who misrepresented to her that he was a police constable and would take her to
the police station. But instead, he took her to his house, kept her there, demanded and
took a ransom of Rs. 600 from her mother, before he handed her back. I was held that his
act amounted to abduction.13 Where a woman is passed from hand to hand in several
places, each of the persons will be guilty of offence of abduction.14

Distinction between kidnapping and Abduction


11 See Hari Singh Gour penal Law of India, vol 3, 11 edn, Law Publishers,
Allahabad 1998, P 2480

12 Gurcharan Singh v. State of Harayana AIR 1972 SC 2661, (1973) CrLJ 179 (SC).

13 Bhadur Ali v. King Emperor AIR 1923 Lah 158

14 AIR 1929 Lah 713

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Kidnapping Abduction

Kidnapping from guardianship is committed Abduction may be in respect of any person.


only in respect of a minor or a person of
unsound mind.
Person kidnapped is removed out of lawful No such thing necessary. It has reference
guardianship. exclusively to the person abducted.
Taken away or enticed to go away with the Force, compulsion and deceitful means are
kidnapper. The means used are irrelevant. used.
Consent of the person kidnapped is Consent of the person condones the offence.
immaterial.
Intent of the kidnapper is irrelevant. Intent of the abductor is all-important
factor.
Not a continuing offence. It is complete as It is continuing offence. It continues so long as
soon as the minor or person of unsound mind the abducted person is removed from one
is removed from lawful guardianship. place to another.
Kidnapping outside India. Abduction may be anywhere within or
without.
PART C
AGGRAVATED FORMS OF KIDNAPPING

KIDNAPPING OF MAIMING FOR BEGGING


Section 363A. 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 than such minor may be employed or used for the
purposes 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 punishable with imprisonment for life, and shall also be
liable for 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 purposes of soliciting or receiving aims;

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(iii) Exposing or exhibiting, with the object of obtaining or extorting alms, any sore,
wound, injury, deforming 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.

This section was introduced in the year 1959. It was inserted to convert the growing of
organised begging wherein unscrupulous persons were abducting children and maiming
them for the purpose of begging. The term begging is defined in cl (4) of this section.

Clause (3) of this section introduces the presumption that if a person other than the lawful
guardian uses or employs a minor for begging, then unless the contrary is proved, it will
be presumed that he kidnapped the child.

ABDUCTION TO MURDER
Section 364. Kidnapping or abduction 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 a term which
may extend to ten years, and shall also be liable to fine.

Illustrations

(a) A kidnaps Z from India, intending or knowledge 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.

This section will apply if person has been abducted with intention that he be murdered. 15
The actual murder of the person is not required. It is sufficient that there was abduction
with the intent to murder.16

KIDNAPPING FOR RANSOM


364A 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
15 Upendra Nath v. Emperor AIR 1940 Cal 561; Paras Nath Mani Tipathi v. State
(2000) CrLJ 3882 (All); Subhash Chandra Panda v. State (2001) CrLJ 4108 (Ori).

16 State of west Bengal v. Mir Mohmad Omar AIR 2000 SC 2998, (2000) 8 SCC
382.

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compel the government or any foreign state or 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.

Section 364 A was inserted by criminal law (Amendment) Act 1993 [and further
amended by the Indian Penal Code (Amendment) Act 1995] to provide for severe
punishment for abducting or kidnapping a person and keeping him continuously under
detention and threatening him to cause death or hurt or creating a reasonable
apprehension that he may be put to death or hurt to compel the government or foreign
state or international inter governmental organisation or any other person refrain from
doing any act or to pay a ransom as demanded by kidnapper or abductor.

In Netra Pal v. State (National capital Territory of Delhi), 17 the Delhi High Court, in set of
peculiar facts, delved into some key words and ambit of s 364A of the IPC. The raiding
party recovered from the accused the kidnapped child and a letter demanding ransom. He
had neither posted the letter nor personally contracted the family of the child for three
days after kidnapping till he was arrested. The high court held that mere intention to
demand is translated into action of the accused by communicating his demand to the
person concerned. Unless the price of retrieval or rescue is made, the question to pay
ransom does not arise as the words to pay warrant setting the demand for payment in
motion. The court, therefore, declined to convict the accused for kidnapping for ransom
as he, by keeping his letter of demand with him only, did not convey his demand for
ransom to release the child.

KIDNAPPING OR ABDUCTION WITH INTENT TO SECRET AND


WRONGFUL CONFINEMENT
Section 365. kidnapping or abducting with intent to cause that person to be secretly and
wrongfully confine person Whoever kidnaps or abducts any person to be secretly and
wrongfully confined, shall be punishable with imprisonment of either description for a
term which may extent to seven years, and shall also be liable for fine.

Section 365 comes into play when a person kidnaps or abducts another with intention to
secretly and wrongfully confine him.18 Such an intention of the kidnapper or abductor has
to be judged from the facts and circumstances of the case at hand.19

17 (2001) CrLJ 1669 (Del).

18 Akbar Ali Emperor AIR 1925 Lah 614; Roshan v. State of Uttar Pradesh AIR
1954 All 51.

19 State of Uttar Pradesh v. laiq Singh (1986) CrLJ 584 (All); Rajendra v. State of
Maharashtra (1997) SCC (Cri) 840.

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KIDNAPPING OR ABDUCTING A WOMAN TO COMPEL HER
MARRIAGE, ETC
Section 366. Kidnapping, abducting or inducing women to compel her marriage, etc.
Whoever kidnaps or abducts any women with intent that she may be compelled, 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 knowledge 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 women to go from any place
with an intend 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.

Mere abduction does not warrant s 366. It comes into operation only when the kidnapper
or abductor abducts her for the purpose mentioned therein. 20 Even subsequent intent or act
of intercourse with kidnapped or abducted girl cannot bring in the case within the preview
of s 366, if such an intent was absent at the time when the accused enticed the girl. 21
Abduction under this section becomes punishable if the victim had been carried of
illegally force or deception from one place to another place. 22 This section is not
directed against seduction under coercion or under circumstances when she is entirely in
the power of the seducer and when her consent would be nothing more than a mere
submission to the will of the seducer. Abduction for forcible sexual intercourse or forcible
marriage, or seduction for illicit intercourse are the main ingredients of this section. The
essence of crime is compulsion.23

Seduction in this section means not merely inducement to submit to sexual intercourse for
the first time, but induces subsequent illicit sexual intercourse as well. 24 However, in the
case of a woman who habitually carries on the profession of a prostitute, the essential

20 Chhotelal v. State of Harayana AIR 1979 SC 1497 (1979) CrLJ 1126 (SC);
Upendra Baraik v. State of Bihar (2001) CrLJ 286 (Par); Tarkeshwar Sahu v. State
of Bihar (Now Jharkhand) (2006) 8 9SCC 560.

21 Dalchand v. State of Uttar Pradesh

22 Rajinder v. State of Maharashtra (2002) 7 SCC 721.

23 Jinish Lal v. State of Bihar (2003) 1 SCC 605.

24 Ramesh v. State of Maharashtra AIR 1962 SC 1908 (1963) 1 CrLJ 16 (SC);


Kuldeep K Mahato v. State of Bihar AIR 1998 SC 2694,(1998) 6 SCC 420; Rajesh
v. State of Maharashtra AIR 1998 SC 2724 , (1998) 7 SCC 324.

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elements of seduction are ruled out and hence the offence under s 366 cannot be
committed in connection with such a women.25

Minors Consent to marry her kidnapper Is t valid?


There is a conflict of opinion between the various high courts in India on the question
whether the consent given by minor girl to her marriage with the person who kidnaps her
is valid or not. The Calcutta High Court in Fulchand v. Emperor,26 and the Oudh Chief
Court in Bisnath Prasad v. King Emperor,27 have taken the view that the phrase against
her will in s 366 means only the minors own will and not the will of lawful guardian,
whereas the Allahabad High Court in Bhagwati Prasad v. Emperor,28 and Sultan v.
Emperor,29 and Bombay High Court in Emperor v. Ayubkhan Mir Sultan,30 have held that
the minors consent at all, even for the purpose of this section, and that an offence under
this section will lie in such circumstances. The Madras High Court has agreed with the
view of Bombay High Court and of the Allahabad High Court, though it has not expressly
decided the point.31

The principle in the above vase was affirmed by the Supreme Court in its decision in
Thakoral D Vadgama v. State of Gujarat, 32where a rich industrialist has induced a minor
girl of 16 to leave her home and to come to his garage to have illicit intercourse with him.
In this case, the Supreme Court affirmed the conviction under s 366, IPC, passed by the
trial court and the Gujarat High Court. The accused came into contract with the family of
the girls father, held out hopes of appointing him as the manager of a new factory, which
he was going to start at Mount Abu and Ahmedabad and stayed in big hotels spending
lavishly. He also presented Mohini, the concerned girl, with a parker pen. Within a few
days, thereafter, he purchased by way of gifts for Mohini, skirts, silver waist band etc. He
was actually found on mohini bed by her mother at Mount Abu and his connection with

25 Ramesh v. State of Maharashtra AIR 1962 SC 1908 (1963) 1 CrLJ 16 (SC

26 AIR 1932 Cal 442.

27 (1946) 48 CrLJ 542 (Oudh).

28 AIR 1929 All 709.

29 AIR 1930 All 19.

30 (1943) 46 Bom LR 203.

31 District Magistrate of Chittoor v. Subhana AIR 1952 Mad 257.

32 (1973) 2 SCC 413.

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Mohini was suspected, and in spite of the mothers grave protest he was in
correspondence with her without the knowledge of her parents.

Mohini was a schoolgirl of immature understanding having entered her sixteenth year less
than a month before the incident, and out of emotion, she wrote letters to the accused
exaggerating incidents, and out of emotion, she wrote letters to the accused exaggerating
incidents of rebuke and beating by her mother. The accused took advantage of her
immature feelings and induced her to come to his house on an appointed day. She came,
and was taken to his garage and then she was induced to go to the public road by the
accused when the police party came with her father. The accused falsely denied her
presence in the house but some of her clothes, her school exercise books, etc, were taken
form the garage, where she had been asked to remain by the accused. The accused was
given a lenient sentence of only rigorous imprisonment for 18 months.

The Supreme Court remarked that Mohinis mothers dignified protest letter to the
accused indicated how the mother of the girl belonging to a to a comparatively poorer
family felt, when confronted with a rich mans dishonourable behaviour towards her
young impressionable, immature daughter, who was suggested to render financial help to
her husband in time of need. The Supreme Court distinguished its earlier ruling in
Varadarajans33 case and pointed out the meaning of expression whoever takes or entices
any minor thus:

The word takes does not necessarily connote taking by force and it is not confined to the
use of force, actual or constructive. These words merely mean to cause to go, to escort or
to get into possession. No doubt, it does mean physical taking, but, but not necessarily by
use of doubt, it does mean physical taking, but not necessarily by use of force or fraud.
The word entice seems to involve the idea of inducement or allurement by giving rise to
hope or desire on the other. This can take many forms, difficult to visualise and describe
exhaustively, some of them may be quiet subtle, depending for their success on the mental
state of the person at the time when the inducement is intended to operate. This may work
immediately or it may work gradual but imperceptible impression culminating after some
time, in achieving its ultimate purpose or successful inducement. The two words takes
and entices are intended to be read together, so that each takes to some extent its colour
and content from the other. The statutory language suggest that if the minor leaves her
leaves her parental home completely uninfluenced by any promise, offer of inducement
emanating from the guilty party, then the latter cannot be considered to have committed
offence as defined in section s 361, IPC. But if the guilty party has laid a foundation by
inducement, allurement or threat, etc, and if this gain can be considered to have
influenced, the minor or weighed with her in leaving her guardians custody or keeping
and going to the guilty party, then prima facie it would be difficult for him to plead
innocence on the ground that the minor had voluntarily come to him.

33 S Varadarajan v. State of Madras AIR 1965 SC 942, (1965), 2 CrLJ 33 CSC.

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PROCURATION OF MINOR GIRL
Section 366A. Procreation of 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
intent that such girl may be, 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.

Section 366B. Importation of girl from 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 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.

Section 366A and 366B were inserted in the Indian Penal Code 1860 in the year 1923 in
pursuance of the International Convention for Suppression of the Traffic in Women and
Children. They intended to punish the export and import of girls for prostitution. Section
366A, which punishes a person who makes a girl under 18 years of age to move from any
place to another with intend to force or seduced her illicit intercourse with other person,
deals with procuration of minor girls from one part of India (except Jammu & Kashmir)
to another. Section 366B deals with import in India of a girl less than twenty-one years
for prostitution from any foreign country or Jammu & Kashmir.

The term illicit intercourse used in these provisions means sexual intercourse between
man and woman who are not husband or wife. 34 And the word seduced (to illicit
intercourse) means inducing or enticing or tempting a girl of the specified age to submit
to illicit intercourse not for the first time but also at any time or on any occasion.35

For convicting a person under 366A it is essential to establish that he has induced a girl
below the age of 18 years to go from one place with the intend ( or knowledge) that she
would be forced or seduced to illicit intercourse with someone other than himself. 36 In the
absence of any proof disclosing coercion or inducement by the accused, the deserved
acquittal of charges under s 366A.37

34 Keasl Mal v. Emperor AIR 1932 Lah 555

35 State of Bombay v. Gopichand Fattulmal AIR 1961 Bom 282, (1960) 63 Bom
LR 408; Ramesh v. State of Maharashtra AIR 1962 SC 1908.

36 Manik Molla v. Emperor AIR 1945 Cal 432; Ganga Dayal Singh v. State of Bihar
Air 1994 Sc 859, 1994 CrLJ 951 SC; Mahesha Sanjay v. State of Rajasthan (1999)
CrLJ 4625 (Raj); Ranjeet Singh v. State of Bihar (2000) CrLJ 2574 (Pat); Krishna
Mohan Thakur v. State of Bihar (2000) CrLJ 1898 (Pat.)

37 Jinish Lal Sah v. State of Bihar (2003) 1 SCC 605.

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Section 366-B makes it an offence to import a girl under the specified age from any
foreign country or the state of Jammu & Kashmir with intent or knowledge that she
would be forced or seduced to illicit intercourse with another person.38

KIDNAPPING OR ABDUCTING TO SUBJECT PERSON TO GRIEVOUS


HURT
Section 367. 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 subject to grievous
hurt, or slavery, or to 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.

In Dharshan Singh v. State of Punjab,39 the Supreme Court convicted the accused under s
367 for abduction the victim and mercilessly beating him.

WRONGFULLY CONCEALING OR KEEPING IN CONFINEMENT


KIDNAPPED OR ABDUCTED PERSON.

Section 368.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.

Section 368 does not apply to the perpetrator of the offence of kidnapping or abduction but to
his accomplice who knowingly conceals the kidnapping or abducted person.40

To constitute an offence under s 368 of the IPC, it is necessary that the prosecution must
establish the following ingredients:

(1) The person in question has been kidnapped or abducted;


(2) The accused knew that the said person has been kidnapped or abducted; and
(3) The accused having such knowledge wrongfully conceals or confines the person
concerned.

So far as the second ingredient is concerned, it is an interference to be drawn by the courts


from various circumstances. Whether there has been wrongful concealment or confinement

38 Ramjilal v. State of Rajasthan AIR 1951 Raj 33

39 (1994) CrLJ 226 (SC)

40 Sohan Singh v. Emperor AIR 1929 Lah 180; Emperor v. Zamir 1932 oudh 28;
Francis Hector v. Emperor AIR 1937 All 182; Raghunath Singh v. State of
Madhaya Pradesh 1967 MPLJ 477.

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under s 368, is a matter to be considered from the facts and circumstances of a particular
case.

In Smt Saroj Kumari v. State of Uttar Pradesh.41, the accused had been charged of the offence
of stealing a new born child from its mothers delivery bed in the maternity hospital, as the
child was found in the bedroom of the accused, although she had not given birth to any new
born child. The Supreme Court upheld her conviction under s 368, holding that under the
circumstances, the interference of concealment and guilt concurrently drawn by the courts
below were justifiable and correct.

KIDNAPPING OR ABDUCTING CHILD UNDER TEN YEARS WITH


INTENT TO STEAL FORM ITS PERSON

Section 369. Kidnapping or abducting child under ten years with intent to steal from its
person. - Whoever kidnaps or abducts any child under the age of ten years with the intention
of taking dishonestly any movable property from the person of such child, 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 369, as evidence from its phraseology, provides punishment for kidnapping or
abducting a child with the intention of taking movable property from the person of a such
child.

PART D

SLAVERY AND FORCED LABOUR


Section 370. buying or disposing of any person as a slave. - Whoever imports, export,
removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains
against his will any person as slave, shall be punished with imprisonment of either
description for a term which may extend to seven years and shall also be liable to fine.

There must be a selling or disposal of a person as a slave, i.e., a selling or disposal whereby
one, who claims to have a property to another.42

Section 371. Habitual dealing in slaves. - Whoever habitually imports, exports, removes,
buys, sells, traffics or deals in slaves, shall be punished with [imprisonment for life] or with
imprisonment of either description for a term not exceeding the years, and shall also be liable
to fine.
41 AIR 1973 SC 201 (1973) 1 SCJ 682, (1973) CrLJ 267 SC.

42 Section 370 however, has lost its utility and relevance because of art. 23
prohibiting traffic in human beings and forced labour, and the Bounded Labour
System (Abolition) Act 1976.

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Section 371 provides punishment for the habitual slave traders

Section 374 Unlawful compulsory labour - Whoever unlawfully compels any person to
labour against the will of that person, shall be punished with imprisonment of either
description for a term which may extend to one year, or with both.

Section 374 intended to check the practice of forced labour. Therefore, it makes unlawful
compulsory labour an offence. It embodies the principle that no person shall be unlawfully
forced to undertake labour against his will. The word labour applies both to physical and
mental labour.

PART E

SALE OR PURCHASE OF MINORS FOR IMMORAL


PURPOSES
Section 372. Selling minor for purposes of prostitution, etc. - Whoever sells, lets to hire, or
otherwise disposes of any [person under the age of eighteen years with intent that such person
shall at any age be employed or used for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or knowing it to be likely that such
person will at any age be] employed or used for any such purpose, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall be
liable to fine.

Explanation I. - When a female under the age of eighteen years sold, let for hire, or otherwise
disposed of to a prostitute or to any person who keeps or manages a brothel, the person so
disposing of such female shall, until the contrary is proved, be presumed to have disposed of
her with the intent that she shall be used for the purpose of prostitution.

Explanation II. - For the purposes of this section "illicit intercourse" means sexual
intercourse between persons not united by marriage or by any union or tie which, though not
amounting to a marriage, is recognised by the personal law or custom of the community to
which they belong or, where they belong to different communities, of both such communities,
as constituting between them a quasi-marital relation

Section 373. Buying minor for purposes of prostitution, etc. Whoever buys, hires or
otherwise obtains possession of any [person under the age of eighteen years with intent that
such person shall at any age be employed or used for the purpose of prostitution or illicit

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intercourse with any person or for any unlawful and immoral purpose, of knowing it to be
likely that such person will at any age be] employed or used for any purpose, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

Explanation I - Any prostitute or any person keeping or managing a brothel, who buys, hires
or otherwise obtains possession of a female under the age of eighteen years shall, until the
contrary is proved, be presumed to have obtained possession of such female with the intent
that she shall be used for the purpose of prostitution.

Explanation II - Illicit intercourse has the same meaning as in section 372.

Section 372 provides punishment for selling a person under the age of 18 years either sex for
the purpose of prostitution, illicit intercourse or for any other immoral purpose, while s 373
provides punishment for a person who buys such a minor person.

For invoking the provisions of s 372, the prosecution is required to prove that has sold or let
to hire a person under the age of 18 years with intent or knowledge that the person would be
used for either the purposes mentioned therein.43 Such a person may be of either sex. Married
or unmarried or leading an immoral life prior to sale or purpose.44 The offence is complete the
moment there is sale or letting to hire a minor with the intention specified in s 372.

Section 373, as stated earlier, makes criminally responsible for buying, hiring, or obtaining
possession of a minor for the purposes specified therein.

PART F

PROPOSALS FOR REFORMS


The Fifth Law Commission in its forty second report on the Indian Penal Code has suggested
some major reforms in the law relating to kidnapping and abduction. The Law Commission,
the Governments law reform adviser, has suggested removing a requirement that force or
fraud must be used for an abduction to be kidnap. It would mean a warring parent who fails
to return a child in a domestic dispute could face the prospect of being charged with kidnap,

43 Santosh Santra @ Bachu v. State of West Bengal (1983) 2 Crimes 646;


Girdharilal v. Emperor AIR 1934 All 324; Lal Singh v. State of Uttar Pradesh
(1954) CrLJ 859 (All).

44 Ismail Rstamkhan (1906) 8 Bom LR 236.

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which carries a maximum life sentence. In contrast, child abduction carries a maximum term
of seven years.

The Commission insisted the planned reform was not designed to target those cases but to
ensure criminals who entice children or vulnerable adults in to their cars or houses can be
charged with kidnap. The Law Commission has proposed revamping the law of kidnap as
part of a drive to make legislation clearer.

Lord Justice Munby, chairman of the Commission, said: "The common understanding of
kidnap doesn't square with the law as it is at present." The specific requirement of the use of
force or fraud to constitute a kidnapping should be removed to help protect children and
vulnerable people, the advisers said.

Explaining the "serious problems" with the law as it stands, Professor David Ormerod, the
law commissioner leading the consultation, said: "In practical terms, a young child or
vulnerable adult who accompanies an offender without having been forced or defrauded into
doing so won't necessarily have been kidnapped." He added there was also an ambiguity
over whether there could be "a prosecution for kidnap if an offender uses fraud to get
someone to accompany him but he doesn't actually detain them until the end of the journey,
which runs counter to what most people would think of as kidnapping". In its consultation
paper, the commission said: "The commission's proposals would close this loophole.

"A lack of consent by the victim should be enough even if no force of fraud was used by the
abductor." Under the current law, there is no equivalent offence of child abduction when the
victim is a vulnerable adult, so unless force or fraud was used, prosecutors have to spend time
"scrabbling around" for other offences, such as those against the person. Charges of false
imprisonment could also be brought, but only if a loss of liberty could be proven.

Prof Ormerod added: "Our aim is to clarify the definition and boundaries of kidnapping and
to ensure that these forms of wrongdoing can be prosecuted with confidence." The
commission is also considering whether some minor cases of kidnapping should be able to be
heard by magistrates, rather than only in the crown court. One in five kidnap cases heard by
crown court judges leads to a sentence which could have been imposed quicker and cheaper
by magistrates, figures showed. The three options suggested by the commission, which
include clearer definitions leading to fewer legal arguments and appeals, would each save at
least 2.5 million, impact assessments showed.

But there would be no significant change in the total number of cases prosecuted. Each year,
up to 750 cases in which a person is charged with kidnapping go before magistrates, but only
up to 150 cases result in a conviction at crown court. The three-month consultation ends on
December 27.

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BIBLIOGRAPHY-
BOOKS REFERRED -

(1) By single Author P.S. Pillai


(2) THE Indian Penal Code K.D. Gaur(Universal law publishing Co., Fourth Edition)

WEBSITES

(3) Law commission report available at -


http://www.telegraph.co.uk/news/uknews/law-and-order/8791942/Reform-of-kidnap-
law-could-hit-warring-parents.html

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