zapTer 40 a i Ki dnapping and Abduction (Indian Penal Code 1860, Sections 359 to 374) Part A. Kipnarring 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 consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. The IPC recognises two kinds of kidnapping: kidnapping from India and kidnapping from lawful guardianship. Kidnapping in any form curtals the liberty of an individual. Essentially, ic impinges the right to life India and human sights. It guaranteed under art 21 of the Constitution 0! ; ne causes terror in the mind of the people and has deleterious effect on civilis society.’ Kipnappinc FRoM INDIA ‘ limits of India’. This means sect beyond ot the moment 2 person is The words used in the sectio! n is complete, that the offence under this sectio! at niece us te wakes \ Teron Bora v State of Assam (2002) 7 SCC 39. Scanned with CamScannerCriminal Law taken outside the geographical territory of India. tis yy ould reach their destination in some oxen Mecey, the persons s| ‘ erty By the same roken, if, « person is apprehended hefore he ot 1B toy tha ssee tig C8 the tty border, then the offence will not be complete, At best, ig 1 Kk 7 it the offence of kidnapping ¢; May ye an atrempt 10 commit the offence of kidnapping fiom yt Y tng IPC. Till then, he has a fovus paenitentia, Me The term ‘India’ has been defined in s 18, IPC, as the tert ", excluding the state of Jammu and Kashmir, 7 The taking away operon outs the tenitory of gy f c J 4 -separate offence, because it has the effect of removing per jurisdiction of the Indian law enforcing agencies, fromm kK Kipnaprinc From Lawrut GuarpIANsHip Section 361. Kidnapping fom lawful geardianship.— wg, or entices any minor under sixteen years of age ifa male, or under cu Uae; years of age if a female, or any person of unsound mind, on keeping ofthe lawful guardian of such minor or person or mind, without the consent of such guardian, is said to kidnap such nine 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 7 other person. 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 lav Buardianship. It is equivalent to what is termed ‘child stealing’ in England. The object of the section is to Protect minor children and persons of unsound mind from being seduced, harmed or otherwise exploited by others. ti to afford protection and security to the wards, It also naturally recogni the right of the guardians to control and take charge of their wards may be minors and/ or people of unsound mind. Taking and Enticing . a . . is section, All thar is required to bring an act within the purview of this ea ‘take or entice’ a minor or a person of unsound mind from the - 938 iso Scanned with CamScannerKidnapping and Abate nd Al 1 ‘fal guardian. "Taking? implies in fi ‘ther ip s to pg cenit. "1 Mer force. th ad mea TO BOW LO ESCONE The cance MOF ig mance because a MiNOF has No egal Syl othe “ : " NaCl ty 4 rl a by a minor or a person of unsound wind given YS active ye is Ft pe some active et played by the aq Used f m inti vi ‘ Cd ing oF allowing a 0 simp Y permitt 8 BA MINOF 10 age ompan f the mingg? oanoffence, . . / 1 OMe will nop amo ns Varadarajan v State of Madras,’ 4 girl wh ant jority, Ve ily left he ho aii majority, vowuncarly left her father’s hous Was on the verge of certain place and we: iC, arrany used ata F N10 the sub. ed 0 meet the xasel and the girl registered an agreement to materi Office, where the Arasoerer that the accused had! “ken? her ggy a, Mt M38 no evidenes af her parents, as there was no active ; lawful Buardianship pero leave the house. Ie was held sed to persue made out. this section Wag In Stare of Haryana v Raja Ram,,' the Prosecutrix was i yea. She became friendly witla’a person called Jai Nani eet 4 wa fequent visitor. When Jai Naain was forbidden by » aged 32, who faher from coming home, hve sent messages through one Rare enn was constantly persuaded to leave the house and come with Jai wet sho would keep her in a lor of material comfort. One nigh, he prosecus aanged 10 meet Jai Narain in his house and went to meet him where she ws seduced by Jai Narain. Jai Narain was convicted tinder s 376 for ape of minor and Raja Ram under s 366, The question before the Supreme Court was whether Raja Ram could be said to have ‘taken’ the prosecur7j since she willingly accompanied him. The Supreme Court held that was not necessary that the taking or enticing must be sown to have/been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the I guardian, would be sufficient to attract the section, The word ‘entice’ connotes the idea of inducement /or pursuance by ment, This may work dual bur imperceptible offer of pleasure or some other form of allure Immediately or it may create continuous and gra ery 997) CrLJ 1018 2 SiR 1596) Ce 145 (Ker): Gaur Stat of Malrahrs ne ua Re: Deep Chand @ Dipu v State (Nasional Cepia Trion i 3 (Del), an 288C also see, Lala Prosad 942, (1965) 2 CrLJ 33 (SChialsosee, d NEI979 C1276; Deb Kamar ain v Reale Bei (1989) 2S 4 ge ef Mabarasbora (1992) 1 Crimes 69 (Or) IR 1972 cnn ne ere ICY Madhya Prade nate Mn anor | Scanned with CamScannerCriminal Law ee" jit ne culminating aker so™ cement. cime in achieving its ultima impression cul of accel ind Keeping of Lawful Gallia wget anaes the tapi enticing f ABY MNT Peron gyn, » Section ot regu of the Keeping, of the lawful guardian’, an offyc” of aoa ye ors Heng ofthe wll arin ae meaning ot one te Suprene Cour in State of Haryana yg! consid eration ved that the wed ‘keeping’, in the context, conn fam: The court obse 1, maintenance and control. The cour othe Ne idea of dl rorectiot rte idea of charges P' mainen mt m ide the language used in Engish statutes, where the expreyign 1 P the possession’ andnot ‘out of the keeping’. The gi e Te be ree deen the English atues and this section onc show that s 361 was designed to prarect the sacred right of the pure with respect of their minor wards. . "The rerm used in che statute is “lawfi| guardian’ and not ‘egal guardian The term lawful guardian is a much moré\wider and general term than expression ‘legal guardian’. ‘Legal eu wl be parents or guardian a o | appointed by cours ‘Lawful guardian’ would include within its mean not only legal guardians, but also such pertons like a teacher, relatives ex f who are lawfully entrusted with the cate antl 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 fenale, in order to constitute,an offence under this section. Ponistygen For KIDNAPPING \ Section 363. Punishment;for kidnapping — Whoever kidnaps any Person from india or from lawful guardianship, shall be punished with imprisonment. er description fora term which may extend toseven years, and shall also be liable to fine, th Caditla » Vip Menon the Supreme Coure declined 1 cm Tint, who was accged of kidnapping his minor daughter vi ing with her maternal gund_ father due to strained relationship becweet a 5 Thakerla D Vayama v Sate of so jarat AIR 1 5, (1973) CL 154 6 AIR 1973 SC 819, (1973) Cyperee ora Som513. (72) 7 ‘State v Harban Sin, i pa 8 (1993) 2SCC6, rth Kisan Singh AIR 1954 Bom 339; Kexar v Emperor AIR'919 940 Scanned with CamScannery Kidnapping and Abduction on tke ground that the pt het child. accused “os the natura guard ian ae’ Parr B Anpucrion ‘on 362+ Abduction.— Whoever by force jon 3 seral means induces, any person to go from, dectl aaeperso™ son 362 merely defines the term ‘abduct jon 3 sin offence under the IPC. Te is an offen sis Mt grent £0 commit another offence, se sdction pusishable, Ingredients sreesental ingredients of this section ares (3) Forcible compulsion or inducement by deceitful means (o) The objects of such compulsion oF inducement mist be che going of a.person from any place. . Compels, of by any any pice, i said to abduct ‘on’, Therefore, ce when it is acy Force or fraud abduction per ‘companied by |S essential to it must be noted that abduction per se as defined under 51362 is not an offence” and hence is not punishable.'® Only if the abduction falls in the categories provided under ss 364, 365, 366, 367 and 369, will it amount wan offence, Thus, abduction, is an offence only if itis done with intent wo: (2) murder (s 364); (b) secretly and wrongfully confining a person (s 365); (0 induce woman to compel her marriage (5 366); (@) subject person to grievous hurt, slavery etc (s 367); (©) steal from a person under 10 years (s 369). By Force The term, ‘force’, as embodied in s 362, IPC, means the use of actual farce 'md not merely show of force of threat of force.'' Where an accuse Vheea eo SO. jitenathv State of Urar Pradesh AIR. 1960 SC 67, (1960) Cr 154 SO). 1} Qe lal See of Haryana AIR 1979 SC 1494, (979) x1 3128 (os Abad ie Singh Gour, Penal Law of India, vol 3, 11th edn, Law Publishers, » P3480, 941 | Scanned with CamScannerCriminal Law __ ix prosectt ened the pros threate duction und x BO with p n h him . fer this section. hi "ny amount (0 aby Deceitfel Means tion, inducing # person by deceitful me tions an Under this eer ennce. Deceitll means is wsed as an mo % i also a can use force to compel oF in the aleryye Meh ne me a place. Either way, it amounts to ableton iy 2 pe ting a peso by making fle represenaigny Pi mesa the person to leave any place. Ml the To Go from Any Place jal element of abduction is compelling or inducin, a py pice. It need not be only from the custody oflan ga inthe ese of kidnapping. For unlike kidnapping, abduction sang ® offence. The offence of kidnapping is complete, the moment 4 perce removed fom India or from the keeping of lawful custody of guna’ But, in the case of abduction, a person is being abducted not only wig, is fis taken away from any place, but also when he is subsequent ene} from one place to another. A kidnapped girl managed to escape from ig 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 intad he took her to his house, kept her there, demanded and took a ranma Rs 600 from her mother, before he handed her back. It was held that his act amounted to abduction.'? Where a woman is passed from hand t hand in several places, each of the persons will be guilty of offence of abduction." "Om, nati ty place ts We tg a persot Table 40.1 Distinction Between Kidnapping and Abduction Kidnapping Abduction | (1) Kidnapping from (1) Abduction may be ix respe* guardianship is committed of any person. only in respect of a minor or @ person of unsound mind. Singh» Sa of Haryana ALR 1972 SC 2661, (1973) CL) 9 8 12. Gurcharan B iv King Emperor AIR 1923 Lah 158. Scanned with CamScannernt - | __ Abd napped is removed | (2) No such thing h thing ‘ . kid person ouardianshi p ) wf of lawl guardianship. relecence eyelet has seed person abducted vay or enticed (0 g ed, vqaken awe or a ef £0 | (3) Force, compulsio 0 gay with the kidnapper. deceitfil ment and | Taye means USE are ‘ANS are used, . clevan’ ierelev Consent of the person (4) Consent of the per ( gidnapped is immaterial. condones the “een og ine of ‘he kidnapper is | (5) Intenc of the abductor j i is inrelevan all-important factor. Nor a continuing offence. (6) Ic is a continuing of @ N° h A continuing offence. It Iris complete as soon as the continues so long as the minor oF person of unsound | abducted person is removed mind is removed from lawful from one place to another, rardianship- ide India. | (7) Abduction may be anywhere within or without. ” Kidnapping outs! Part C Foros OF KipnarPinc Or ABDUCTION AGGRAVATED KioyarriG OR 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 ofa minor, obtains the custody of the minor, in order that such ninot may be employed or used for the purposes of begging shall be Punishable with imprisonment of either description for a term whi may extend to ten years, and shall also be liable to fine. Whoever maims any minor in order that such minor may be employe ae for the purposes of begging shall be punishable with imprisonment life and shall also be liable to fine. ‘ wful ardian of aminow Emel)? acces i shall be presumed 6) Where any person, not being the | erwise obrain Ouse 5 es such minor for the purposes of begsin& ‘tes the contrary is proved, that he kidnapped °° Scanned with CamScanneridnaps her is © nurt in Bisna Out, the person who kid rd the Oudh court in Bisnath Praca Sin Ped 2 EMC view that the phrase “agains her wilt” Kin Falchand 2 re caked Be SE gor the will of the lawful » 8366 Emperors sre ower will Ne ati P Nay deans only’ “el igh Court 8 Mhagy ath Prasad Y Emperoy , wpereas te Allahal ‘al the Bombay High Court in Emperor y Ajung' ca? Pinger: Wt ahat the minor consent is no consent ap a) Hn moe hay : . ; Mir Sultan this sections and that an offence under this Section for che purpose OF HS SET Madeas High Court has agreed wig ll ch circumstances: the Allahabad High Cy ' Jie in such ett ees court and of the Allahabad High Co e " Bombay High Cour I ure, though, ci he point. ysly decided d : ase was affirmed by the Suprem ca © Cour in -iple in the above The principle in © State of Gujarat, Hl i toral D Vadgama v ijarat,”” where 4 irs decision in Thakora | of 16 to leave her home and con to : i induced a minor git industrialist had induced 2 tt bins. In this his garage to have illicic intercourse with him. Case, the Supreme Court affirmed the conviction under s 366, IPC, passed by the trial ed Court. The accused came into contact with the d the Gujarat High me into family of the girl's father, held out hopes of appointing him as the manager ofa 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, skirt, silver waist band, etc. He was actually found on Mohini’s bed by her mother at Mount Abu and his connection with Mohini was suspected, and in spite of the mother’s 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 of rebuke and beatings 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 wes coe peg and then she was induced to go to the public sail denied her wien & police party came with her father. The’ accused a hols porns in his house but some of her clothes, her school ex¢" =, » etc, were taken from the garage, where she had been asked to rem! view of the jg has not expre as 26 AIR 1932 Cal Ada, 27 (1946) 48 Cr L] 542 (0, 28. AIR 1929 All 709, -_ Scanned with CamScannerKidnapping and Abduetion . oo d. The accused was given a len; , a lenie sy Me eeent for 18 months. ME semtence of on ison e Court remarked th * MBorous fi insurer ‘adi i The ccused indicated how at Mohin the moth ye ely poorer family felt, whe the girl belonging to comet arable behaviour towards her you , A stone who also suggested to render fj imetans aaetts SO, The Supreme Court distinguish? uisband jn =e 0! i ane Of te ease and pointed out the meaning of th in lates any mino® thus: “ exPression ‘whoever word ‘takes’ does not necessarily connote ta king by y force and it j confined to the use of force, actual or constructive Thee ards | nerely mean ‘to cause t0 go, to escort’ or ‘to get into possession’. ON No br, it does mean physical taking, but not ‘i _ or fraud. The word ‘entice’ seems to Involve kite 7 inducement or allurement by giving rise to hope or desire on the oder. This can take many forms, difficult to visualise and describe qhaustively, some of them may be quite 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 create continuous and gradual bur imperceptible impression | ilminating after some time, in achieving its ultimate purpose of 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 suggests that if the minor 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 the offence as defined in s 361, IPC, But if the guilty party has laid a foundation Y inducement, allurement or threat, etc, and if this gain Nea . Considered to have influenced the minor or weighed wich herin hee *t guardian's custody or keeping and going to the gi i on the Prima facie it would be difficult for him to plead innoe Sound that the minor had voluntarily come t© him Mo CURATION Or Minor GIRL ect oo 1, by any means vant 356A, Procuration of minor git ne on yeast Scanned with CamScanner