aw

GUARDIANSHIP
KIDNAPPING FROM LAWFUL

Section 361. Kidnapping

from lawful guardianship.-Who. -Whoever takes o
of age it a male, or under eighteen
een kes oror en
entic any
minor under sixteen years of years
unsound mind, out of
the of the o age ifif.a
keeping lawful age
or any person of

minor or person of unsound mind,

Without the consent of such oudan of of s
such guardian femalsuche,
kidnap such minor or person from
lawful guardianship. guardian,
is said
to
this section includ
Explanation.The words "lawful guardian in de any perso
with the or custody of such minor or other ner rSOn
lawfully entrusted care

Exccption.-This section does not extend to the act of any person who i
believes himself to be the father
of an illegitimate child, or who 0d aith
lawtul custody of such child, unless LLh
believes himself to be entitled to the acti
unlawtul purpose.
committed for an immoral or
Section 361 deals with taking away of minor children from lawful guadianshin
in England. The object of thesecP It s
equivalentto what is termed 'child stealing on to
minor children and persons of unsound mind
from being seduced. har or
protect
otherwise exploited by others. It is to atfford protection and security to the wards, I alee
to control and take charge of their warde
naturally recognises the right of the guardians mind.
who may be minors and/or persons of unsound
The essential ingredients of the section are: (1) taking or enticing away a minor or a
such a minor must be under the age of sixteen years, if a
person of unsound mind, (ii) must be out
or enticing away
male, or under years, if a female; (iii) the taking
eighteen of unsound mind, and
of the keeping of the lawful guardian of such minor or person
iv) such taking or enticing away must be without the consent of such guardian.

Taking and Enticing

All that is required 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. |aking
implies no active or 'to go, to escort.Theconsenpund
constructive force." The word means
the minor child is of no relevance. Consent given by a minor or a person or u
accused for ta
mind is not consent. But there must be some active part played by the
the minor. Simply permitting or allowing a minor to accompany one will not a
ount

an offence.
majoriny
In S Varadarajan v State of Madras, a girl who was on the verge of attainae and
voluntarily left her father's house, arranged to meet the accused at a certaun eenment
a g r e e m e n t

went to the sub-registrar's office, where the accused and the girl registered an s

2 Biswanath Mallick v State of Orissa (1995) Cr LJ 1416 (Ori). 1018 (Bonm

3 State v Rajayan (1996) Cr 1J 145 (Ker); Gaurish v State of Maharashtra (1997) Cr L
Deep Chand@ Dipu v State ( NCT of Delhi) (2001) Cr LJ 463 (Del). AIR.
1979

4 AIR 1965 SC 942, (1965) 2 Cr LJ 33 (SC); also see, Lalta Prosad v State of Madhya PradefMabanush

SC 1276; Deb Kumar Jain v Kamala Bai

(1983) 2 Crimes 85 (MP); Manornjan dtu
v
(1992) 1 Crimes 69 (Ori).

694
 idnapping and Abduction
herc was no evidence
to marry,

vful guardianshi her whatsoever that the

her to lecave th parents,
ve the house. It was there was no active
as accused had 'taken' her out ot
persuacde the
held that no part playcd by the
offence under this accuscd to
eof scction was made
In Haryana v Raja Ram, the
ndly with a person called prosecutrix
hecan
When laiNarain Jai was a
forbidden by the Narain, agcd 32, who wasgirla of 14 ycars. Shc
Narain was young
hroueh one Raja Ram. She was prosccutrix's father from frequcnt visitor
mesrh
ome with Jailai Narain, who would constantly coming home, he
proseutrix arra: god to keep her in a lot of persuadcd to leave the house sent and
meet Jai
Narain mnatcrial comfort.
ducod by Jai Narain. in his housc and One night,
hRam under s 366. The Jai Narain was convicted underwent to meet
him where the
he said to have 'taken question betore the s 376
for rape of minor she
the minor Supreme Court was whether and
me Court held that it girl, since she Raja Ram
not necessary that the willingly
Supreme
a havc becn by means ot
was

force taking accompanied him. The

willingness on the part of the minor toPersuasion by the accusedenticing
or fraud. or
must be shown
urdian, would be sutticaent to attract be taken out of the person, ofwhich creates
guard
handon legal the section. keeping the lawful
guardianship at
any
under s 361. IPC. However, stage by person is sutticient to hold
a Persuading or
soliciting a minor to
him
accompany. The tormer, unliketaking away is distinct from
the latter, 'a llowing responsible
a minor to
accused in making the minor to implies
leave or keep out of certain active role on the
the part of the
The word 'entice
connotes
legal guardian.
pleasure or some other torm of the idea of inducement or pursuance
create continuous
and gradual but
allurement. This may work by offer ot
ume in achieving its ultimate imperceptible immediately or it
may
purpose of impression
successtul culminating atter some
girl by promise of marriage to inducement. Inducing a minor
within the leave the house of her
guardian amounts to
meaning of the
section. enticement
herping of Lawful Guardian
makes the taking or enticing of any minor person or
Ouf of
the keeping of the lawful guardian', an otfence. The person of unsound
tate g of the lawful meaning ot the words
guardian' came up for consideration betore the
aryana v Raja Ram. The court observed that the word Supreme Court in
ontext
Connotes the idea of charge, protection, maintenance and "keeping. in the
krlur ythe that the minor should be under physical
control. lt is not
rpose of the section if it is under possession ot the
guardian. lt suttices
manor,
Steer who goes continuous control ot the
a
8oEs on a visit either with or without consent ot the guardian. Hence,
2way bromstil is in
keep: guardian, goes on or
eping of the guardian, it goes 'out of the keeping when it is driven
agish starues
LAglishparental roof or control. The court compared t with the
the keepm where the expression used was 'take out of the posCSston language useud in
and not
" he difference in the language betwecn the Englsh statutes and 'out this

SAIR 1973 SC
AIR
M 2004 SC
819, (1973) Cr LJ 651 (SC), alsu see Prakush v Sale of tlurydn.! 004)I Sui
227, (2004) Cr 1) 595 (SC)
Hazarika
Ural
AlaHa
.
Stae
State of Assam (2004) 5 SCC 120, AIR 2004 SC
v 2
v State of Gujarat AlR 1975 SC 2515, (1973) C l J l C )
1973Hazariku
SC
vState of Assam (2004) 5SC 120, AIR 2004 S 4
19, 1973) J 651 (SC).

695
 Criminal Law

section only goes to show that s 361 was designed to

protect the sacred right
guardians with respect of their minor wards. af
the
The term used in the IPC is lawful guardian and not
"legal
expression lawful guardian is a much more wider and general term than the exnre The guardian'.
legal guardian. 'Legal guardian' would be parents or guardians appointed by co ression
Lawful guardian' would include within its meaning not only legal
such persons like a teacher, relatives etc, who are lawtully entrustedguardians, but al
with the care and
10
custody of a minor."

Age of the Minor

As per the section, the age of a minor child at the relevant point in 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. It is for the prosecution to prove that the minor
at the time of kidnapping was below the age stipulated under the section."
Consent of the guardian and not of the minor is relevant as the essence of the oftence
of kidnapping is taking away a minor out of the keeping of the lawful guardian without
his consent. It is only the consent of the guardian that absolves the accused from
criminal responsibility." Consent of the guardian after kidnapping is totally insignificant
and irrelevant in nullifying the offence.
A person of unsound mind is different from an unconscious (because of poisOn
anesthetic drug) person.
"Taking away' the latter does not amount to kidnapping
 t Child

PART B

ABDUCTION
Section 362. Abduction.-Whoever
induces, any person to go from any
by force compels, or by any deceitful ma
place, is said to abduct that person. neans
 napping ana Abduction
Section 362 elv
defines the term
fence under the IP
offen IPC. It is 'abduction. Therefore,
an offence
commitanotheroffence. Force or when it is abduction per se is not
traud is essential to accompanied by certain
make abduction intent to
Ingredients punishable.
The essential ingredients
deceitful means, and (u) ofthethisobjects
section are: () forcible compulsion or
going of a person from any place.
of such
compulsion or inducementinducement by
must be the
lt must be noted that
hence is not
abduction per se as defined under 362 is not
punishable. There should be an s
offence," and
an
human body and that assault should be with assault which is offence against the
an
the intention of
abduction falls in the categories abducting."
amount to an offence. Thus, provided under ss 364, 365, 366, 367 and Only 369,
if the
will it
abduction is an offence only if it is done
murder (s 364); (6) with intent to: (a)
secretly and wrongfully
compel her marriage (s 366), and (d)confining person (s 365); (c) induce
a
woman to
etc, (s 367), and (e) steal from a subject person to
grievous hurt, slavery,
under ten
person years (369).
By Force
Ihe term
'torce, as embodied in s 362, IPC, means the use of actual force and not
merely show of force or threat of force. Where an accused threatened the
prosecutrix
wItn a pistol to make her go with him, it would amount to abduction under this
section.
Deceitful Means
Under this section, inducing a person
also an
by deceitful means to go from any place is can
Thus, a person use
Deceitful means is used as an alternative to use of torce.
to leave a place. Either way, it
t o compel, or in the alternative, deceive a person a talse
to abduction. Deceitful means misleading person by mak1ng
n t s
PSentations and thereby persuading the person to leave any place.

To Go
from Any Place
a to
go from any
of abduction is compelling or inducing person the case of
plar element
al
lawtul guardian as in
place. It need not be only from the custodyisofa continuing ottence. The oftence of
abduction
dnapping.
kidnP8 For unlike
kidnapping,
1S complete, the
m o m e n t a person
is removed trom India
or from the

abduction, a person is being

kceni But, in the case of
eping of lawful cust
ustody of guardian. but also when he is
trom any place,
raken away
ducted not onlh
nly when he is
first
A kidnapped girl managed to
another.
escape
co her that he
subsequently
rom
yremoved from
the nappers when she
kidnappers
one

met the
place
accused,
to
who misrepresented
starion. But instead,
was a

he took her to his

Police when she to the police mother, betore
her
and would take her Rs 600 trom
houseStable
demandedand rook a
ransom
ot
abduction."
Where a wonmun
amounted to
e Cr there,
handded her held that his
act
back. It was

(1960) CrlJ 154 (SC)

1960 SC 67, (SC°).
Unar Pradesh AlRSC 1494,
T120
14 Vish (1979) Cr lJ
a h v State of
Haryana AlR
1979 (1960) C 1J
154 (SC)
C State of 1960 S(C 67, l} 179 (SC ).
6Vic4v AIR Cr
Pradesh 2061, (197.5)
S t a t eof Uttar
S(,
AIR 1972
i Gurh
haran Singhv v State
. ofHaryana Lah 1 58,
1923
AlR
Emperor
dr Ali King
v

697
 Criminal Law

is passed from hand to hand in several places, cach of the persons will will be
oftence of abduction." guilty of
Table 39.1 Distinction Between Kidnapping and Abductian

Abduction
KidnappinS
(1) Kidnapping from guardianship is (1) Abduction may be in
respect of a
Committcd only in respect of a person of any age.
minor (of the age specified in s 361)
or a person of unsound mind.

(2) Person kidnapped is removed out of (2) No such thing necessary. It hac
lawful guardianship. reference exclusively to the person
abducted.
(3) Taken away or enticed to
go away (3) Force, compulsion and deceitful
with the kidnapper. The means used means are used.
are irrelevant.

(4) Consent of the person kidnapped is
immaterial.
(5) Intent of the kidnapper is irrelevant.
(6) Not a continuing offence. It is
Complete as soon as the minor or
person of unsound mind is removed
from lawful guardianship.
(7) Kidnapping outside India.
(8) Kidnapping is a substantive oftence.
(4) Consent of the person condones the
offence.
(5) Intent of the abductor is the all
important factor.
6) It is a continuing offence. t
continues so long as the abducted
person is removed from one place to
another.
(7) Abduction may be anywhere within
or without.
the
(8) Abduction is an auxiliary act. It
becomes when it is
punishable only
done with either of the intents
specified in s 364 to 366.