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MEANING
Black’s Law Dictionary defines kidnapping as ‘the forcible abduction or stealing away of
a man, woman, or child from their own country, and sending them into another.’
In India, kidnapping has been distinguished to be of two kinds according to Section 359
of the Indian Penal Code (hereinafter referred to as ‘IPC’), that is –
And the subsequent sections define these two kinds of kidnapping respectively and
Section 363 provides for the punishment of the offence of kidnapping that whoever
kidnaps any person from India or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.
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For an offence under this section the victim may be amale or a female, whether major or
a minor and irrespective of his nationality. If the person kidnapped is above 12 years of
age and has given consent to his or her being conveyed beyond the limits of India, no
offence is committed.[1]A person may be so conveyed by inducing him to give his
consent under fear of injury or misconception of fact. Thus, a consent loses its essential
element if it is given under such circumstances.[2]
In the case of S. Varadarajan v. State of Madras[4], the Supreme Court referred to the
decision of Bombay High Court in the case of State v. Harbansing[5] where it was held
that the mischief intended to be punished (by s. 361 IPC) partly consist in the violation or
the infringement of the guardians’ rights to keep their wards under their care and custody;
but the more important object of this provision is undoubtedly to afford security and
protection to the wards themselves’.
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Thus, the right of the guardian and the true interest of the minor concur and any invasion
into the right of the guardian even with the consent of the minor will have to be frowned
upon by law by invoking s.361 IPC.[9]
2)Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female.
Before Act XLII of 1949, the age limit was fourteen years for that of a boy and sixteen
years for a girl. But after the amendment, the age limit is of sixteen and eighteen years
respectively. Where a girl under that age is kidnapped, it is no defence that the accused
did not know the girl to be under eighteen, or that from her appearance or conduct she
appeared to have attained the age of eighteen.[10]
3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
In the case of State of Haryana v. Rajaram[11], it was held that ‘the use of the word
“keeping” in the context connotes the idea of charge, protection, maintenance and
control: further the guardian’s charge and control appears to becompatible with the
independence of action and movement in the minor, the guardian’s protection and control
of the minor being available, whenever necessity arises.It is not necessary that there
should be an actual possession by the father, so long as she continues to be a member of
her father’s family and is subject to his control, she is in his possession[12]. There must
be a taking of the child out of the possession of a parent. If a child leaves its parents’
house for a particular purpose with their consent, it cannot be said to be out of the
parents’ keeping. A mere leading of a not unwilling child would be sufficient.[13]
Furthermore, in the case of Prakash v. State of Haryana[14], it was held that persuasion
by the accused which created willingness on the part of the minor to be taken out of the
keeping of the lawful guardian was held by the Supreme Court to be enough to attract s.
361.
The explanation of section 361 defines a ‘lawful guardian’ to include any person lawfully
entrusted with the care or custody of such minor or other person. The term ‘entrustment’
means the giving, handing over, or confiding of something by one person to another. It
involves the idea of active power and motive by the person reposing the confidence
towards the person in whom the confidence is reposed and the term ‘lawfully entrusted’
signifies that the care and custody of a minor should have arisen in some lawful manner
so as to show as if the person having the custody of the minor had been entrusted with
the care and custody of the minor.[17] The fact that a father allows his child to be in the
custody of a servant or a friend, for a limited purpose and for a limited time cannot
determine the father’s right as guardian or his legal possession for the purposes of
criminal law.[18]
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4) Such taking or enticing must be without the consent of such guardian.
On plain reading of this section the consent of the minor who is taken or enticed is wholly
immaterial.[19] If a man by false and fraudulent representations induce the parents of a
girl to allow him to take her away, such taking will amount to kidnapping.[20]
An exception to Section 361 is that it does not extend to the act of any person who in
good faith believes himself to be the father of an illegitimate child or believes himself to be
entitled to the lawful custody of such child, unless such act committed by the person is for
an immoral or unlawful purpose.
ABDUCTION
Section 362 defines abduction 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 only provides for the definition of abduction. Abduction is not an offence and
neither it is punishable but when it is accompanied by an intention to commit another
offence, it becomes punishable as an offence.If the girl was eighteen or over, she could
only be abducted and not kidnapped, but if she was under eighteen she could be
kidnapped as well as abducted if the taking was by force or the taking or enticing was by
deceitful means.[21]Thus, if a minor girl voluntarily goes out of herguardian’s protection
and meets a person, who treats her well with no compulsionor fraud, such person will not
be guilty of abduction.[22]
KIDNAPPING ABDUCTION
Kidnapping may also be for the purpose Abduction is punishable only when
mentioned in Sections 364 to 366, IPC accompanied by a particular purpose as
those sections deal with both kidnapping contemplated under Sections 304 to 356,
and abduction for the purpose stated IPC.
therein and prescribe the punishment.
CONCLUSION
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Thus, Section 361 is enacted to protect the minors from being enticed for illegal purposes
as well as to protect the rights and privileges of the guardians for having lawful custody of
their minor wards whereas Section 362, that is, abduction, is only an auxiliary act whose
ambit includes both minor as well as major person and it is made punishable only when it
is committed along with other offences.
[7]Chhajju Rani Maru Ram and Another v State of Punjab, AIR 1968 P&H 439.
[8]Moniram Hazarika v. State of Assam, (2004) 5 SCC 120 : AIR 2004 SC 227.
[21]Abboo v. State of U.P., Criminal Appeal No. – 410 of 1997, Judgement dated:
14.09.2017, High Court of Judicature at Allahabad, Lucknow Bench.
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[23]Abhaya Jena v. State of Orissa, (1997) Crimes 531 (Ori).
About the Author: Mehrul is a fourth-year law student at Law College Dehradun,
Uttrakhand University.
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