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me/LawCollegeNotes_Stuffs
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also endorsed these proposals for reform, except the proposal for limiting the joint liability for committing
wrongful restraint and wrongful confinement to two or more persons rather than to the suggested ten or more
persons.19 However, the Bill, as stated earlier, lapsed due to the dissolution of the Lok Sabha in 1979.

1 Re Shanmugham(1971) Cr LJ 182(Mad) .

2 Re Subba Row(1908) 8 Cr LJ 212.

3 Arumuga Nadar v Emperor (1910) 11 Cr LJ 708(Mad), also see Paritosh Chowdhary v Sipra banerjee (1988) Cr LJ 1299(Cal)
.

4 Shankar Chandra Ghosh v Roopraj S Bhansally (1981) Cr LJ 1002(Cal) .

5 Ram Laia(1912) 15 Bom LR 103.

6 Madala Periah v Voruganti AIR 1954 Mad 247, (1954) Cr LJ 283(Mad) .

7 Durgapada v Nalin Ghosh AIR 1935 Cal 252; Shankar Lal Sharma v State of Assam (1975) Cr LJ 1077(Gau) .

8 Rita Wilson v State of Himachal Pradesh (1992) Cr LJ 2400(HP), 1991 (2) Shim LC 1.

9 Madhab v Nalini AIR 1964 Cal 286.

10 (1971) 3 SCC 945.

11 AIR 1996 SC 1058.

12 Raju Pandurang Mahale v State of Maharashtra AIR 2004 SC 1677, (2004) 4 SCC 371.

13 AIR 1961 SC 1527.

14 AIR 1972 SC 886, (1972) 1 SCC 764.

15 (1989) Cr LJ 2068 (Ker).

16 Deelip Bhikaji Sonawane v State of Maharashtra (2003) 2 Mah LJ 629, 2003 Cr LJ 4008.

17 AIR 1968 Cal 407.

18 Law Commission of India, 'Forty-Second Report: The Indian Penal Code ', Government of India, 1972, paras 16.72, and
16.74-16.77.

19 Law Commission of India, 'One Hundred and Fifty-Sixth Report: The Indian Penal Code', Government of India, 1997, para
12.53.

PSA Pillai: Criminal Law,12th Edition/PSA Pillai Criminal Law 2014/CHAPTER 39 Kidnapping and Abduction

CHAPTER 39
359
-
361 ,
36)
Kidnapping and Abduction
362 , 364 -
367

(Indian Penal Code 1860,Sections 359 to 374)

PART A - KIDNAPPING 360

Section 359. Kidnapping.--Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful
guardianship.
361
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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 curtails the liberty of an individual. Essentially, 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 society.1

KIDNAPPING FROM INDIA

The words used in the section are 'beyond the limits of India'. This means that the offence under this section
is complete, the moment a person is taken outside the geographical territory of India. It is not necessary that
the persons 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 offence will not be complete. At best, it may
amount to an attempt to commit the offence of kidnapping from India under s 360, IPC. Till then, he has a
locus paenitentia. 7
-
S

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 ef-
fect 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 or person of unsound mind, without the consent of such guard-
ian, 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.
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 persons of un-
sound mind from being seduced, harmed or otherwise exploited by others. It is to afford protection and secu-
rity to the wards. It also naturally recognises the right of the guardians to control and take charge of their
wards who may be minors and/or persons of unsound mind.
The essential ingredients of the section are: (i) taking or enticing away a minor or a person of unsound mind,
(ii) such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female; (iii)
the taking or enticing away must be out of the keeping of the lawful guardian of such minor or person of un-
sound mind, and (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. 'Taking' implies no active or constructive force.2
-

The word means 'to go, to escort'. The consent of the minor child is of no relevance. Consent given by a mi-
*

nor or a person of unsound mind is not consent. But there must be some act ive part played by the accused
for 'taking' the minor.3 Simply permitting or allowing a minor to accompany one will not amount to an offence.
In S Varadarajan v State of Madras ,4 a girl who was on the verge of attaining majority, voluntarily left her
father's house, arranged to meet the accused at a certain place and went to the sub-registrar's office, where
the accused and the girl registered an agreement o marry. There was no evidence whatsoever that the ac-
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cused 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 Haryana v Raja Ram ,5 the prosecutrix was a young girl of 14 years. She became friendly with a
person called Jai Narain, aged 32, who was a frequent visitor. When Jai Narain was forbidden by the pros-
ecutrix's father from coming home, he sent messages through one Raja Ram. She was constantly persuaded
to leave the house and come with Jai Narain, who would keep her in a lot of material comfort. One night, the
prosecutrix arranged to meet Jai Narain in his house and went to meet him 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 be said to have 'taken' the minor girl, since she will-
ingly accompanied him. The Supreme Court held that it was not necessary that the taking or enticing must
be shown to have been by means of force or fraud. Persuasion by the accused person, which creates will-
ingness on the part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to
attract the section. Persuading or soliciting a minor to abandon legal guardianship at any stage by a person
is sufficient to hold him responsible under s 361, IPC.6However, 'taking away' is distinct from 'allowing' a mi-
nor to 'accompany'. The former, unlike the latter, implies certain act ive role on the part of the accused in
making the minor to leave or keep out of the legal guardian.
The word 'entice' connotes the idea of inducement or pursuance by offer of pleasure or some other form of
allurement. This may work immediately or it may create continuous and gradual but imperceptible impression
culminating after some time in achieving its ultimate purpose of successful inducement. 7 Inducing a minor girl
by promise of marriage to leave the house of her guardian amounts to enticement within the meaning of the
section.8

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 State of Haryana v Raja Ram .9 The court observed that the word
'keeping', in the context, connotes the idea of charge, protection, maintenance and control. It is not neces-
*

sary that the minor should be under physical possession of the guardian. It suffices for the purpose of the
section if it is under a continuous control of the guardian. Hence, a minor, who goes on a visit either with or
without consent of the guardian, or goes on street, still is in 'keeping' of the guardian, it goes 'out of the
keeping' when it is driven away from parental roof or control. The court compared it with the language used
in English statutes, where the expression used was 'take out of the possession' and not 'out of the keeping'.
The difference in the language between the English statutes and this section only goes to show that s 361
was designed to protect the sacred right of the guardians with respect of their minor wards.
The term used in the IPC is 'lawful guardian' and not 'legal guardian'. The expression 'lawful guardian' is a
much more wider and general term than the expression 'legal guardian'. 'Legal guardian' would be parents or
guardians appointed by courts. 'Lawful guardian' would include within its meaning not only legal guardians,
but also such persons like a teacher, relatives etc, who are lawfully entrusted with the care and custody of a
minor.10

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 sec-
tion.11
Consent of the guardian and not of the minor is relevant as the essence of the offence 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. 12 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 poisoning or anesthetic drug) per-
&
son. 'Taking away' the latter does not amount to kidnapping.
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PUNISHMENT FOR KIDNAPPING

Section 363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guard-
ianship, 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 363 provides punishment for the offence of kidnapping defined in s 361. A convict may be sent to
prison to undergo simple or rigorous imprisonment for a period up to seven years and be asked to pay fine,
In Chandrakala v Vipin Menon ,13 the Supreme Court declined to convict the father, who was accused of kid-
napping his minor daughter who was living with her maternal grandfather due to strained relationship be-
tween 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 induces, any person to go
from any place, is said to abduct that person.
Section 362 merely defines the term 'abduction'. Therefore, abduction per se 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: (i) forcible compulsion or inducement by deceitful means, and
(ii) 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, 14 and hence is not punisha-
ble.15 There should be an assault which is an offence against the human body and that assault should be
with the intention of abducting.16 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) induce woman to compel her mar-
-

riage (s 366), and (d) subject person to grievous hurt, slavery, etc, (s 367), and (e) steal from a person under
ten years (369).

By Force
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. Where an accused threatened the prosecutrix with a pistol to make her go with him, it would
amount to abduction under this section.17

Deceitful Means
Under this section, inducing 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 alterna-
tive, deceive a person to leave a place. Either way, it amounts to abduction. 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 any place. It need not be
only from the custody of lawful guardian as in the case of kidnapping. For unlike kidnapping, abduction is a
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 being abducted not
only when he is first taken away from any place, but also when he is subsequently removed from one place
to another. A kidnapped girl managed to escape from the kidnappers when she met the accused, who mis-
represented 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
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handed her back. It was held that his act amounted to abduction. 18 Where a woman is passed from hand to
hand in several places, each of the persons will be guilty of offence of abduction. 19
Table 39.1 Distinction Between Kidnapping and Abduction
Kidnapping Abduction
(1) Kidnapping from guardianship is committed only (1) Abduction may be in respect of a person of any
in respect of a minor (of the age specified in s 361) or age.
-

a person of unsound mind.

(2) Person kidnapped is removed out of lawful (2) No such thing necessary. It has reference exclu-
guardianship. sively to the person abducted.
(3) Taken away or enticed to go away with the kid- (3) Force, compulsion and deceitful means are used.
napper. The means used are irrelevant.
(4) Consent of the person kidnapped is immaterial. (4) Consent of the person condones the offence.
(5) Intent of the kidnapper is irrelevant. (5) Intent of the abductor is the all important factor.
(6) Not a continuing offence. It is complete as soon (6) It is a continuing offence. It continues so long as
as the minor or person of unsound mind is removed the abducted person is removed from one place to
from lawful guardianship. another.
(7) Kidnapping outside India. (7) Abduction may be anywhere within or without.
(8) Kidnapping is a substantive offence. (8) Abduction is an auxiliary act. It becomes punisha-
ble only when it is done with either of the intents
specified in s 364 to 366.

PART C - AGGRAVATED FORMS OF KIDNAPPING OR ABDUCTION

KIDNAPPING 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 of a minor, obtains the custody of
the minor, in order that 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 to 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 sing-
ing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore,
wound, injury, deformity 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.
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This section was introduced in the year 1959 to counter the growing of 'organised begging', wherein unscru-
pulous persons were abducting children and maiming them for the purposes of begging. The term 'begging'
is defined in cl (4) of this section.
Clause (3) of the 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.
The offence of kidnapping of a minor for the purpose of employing for begging is made punishable by simple
or rigorous imprisonment for a term up to ten years and with fine. If the accused maims such a minor for the
purpose of employing for begging, he would be sentenced to life imprisonment.

ABDUCTING TO MURDER
Section 364. Kidnapping or abducting 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 life or rigorous 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 knowing 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 a person has been abducted with intention that he be murdered. 20The act ual murder
of the person is not required. It is sufficient that there was abduction with intent to murder. 21 The prosecution
is required to prove that: (i) the accused kidnapped the person; (ii) the person was kidnapped in order, (a)
that he may be murdered, or (b) that he might be disposed of in such manner as to be put in danger of being
murdered.22 S 364 becomes inapplicable where the man was done to death before he was kidnapped. It may
amount to an offence contrary to s 201, but not to s 364, IPC.23 If the person abducted is done to death, it is
for the accused to explain, to the satisfaction of the court, the way he dealt with the victim. In the absence of
such an explanation, the court may presume that the abductor caused his death. 24 He can be held responsi-
ble for the death even if it is not known to him who caused it. 25

KIDNAPPING FOR RANSOM

364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in deten-
tion after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his con-
duct 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 compel the Government or any foreign State or international in-
ter-governmental organization 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 364A was inserted by the Criminal Law (Amendment) Act1993 [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 his death or hurt or creating a
reasonable apprehension that he may be put to death or hurt to compel the government or any foreign state
or international inter-governmental organisation or any other person to refrain from doing any act or to pay a
ransom as demanded by the kidnapper or abductor. Before s 364A is pressed in service and a person is
convicted thereunder, it is necessary for the prosecution to prove that: (i) accused kidnapped, abducted or
detained a person; (ii) he kept such a person under custody or detention, and (iii) the kidnapping, abduction
or detention has been for ransom.26 The essence of the offence is kidnapping and reasonable apprehension
that the kidnapped person may be done to death or hurt if the ransom money demanded is not paid. 27
Kidnapping and abduction are defined in s 359 and s 362 respectively. The term 'ransom' is not defined in
the IPC. 'Ransom', according to the Supreme Court, is a sum of money to be demanded to be paid for re-
leasing a captive, prisoner or detenu.28
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In Netra Pal v State (National Capital Territory of Delhi) ,29 the Delhi High Court, in a 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 contact-
ed the family of the child for three days after kidnapping till he was arrested. The high court held that mere
'intention to demand ransom' does not come within the ambit of the words 'to pay ransom' used in the sec-
tion, unless the 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.
In Malleshi v State of Karnataka ,30 however, the Supreme Court, referring to the Netra Pal dictum, ruled that
there cannot be a strait-jacket formula that the demand for payment of ransom has to be made to a person
who ultimately pays. Even who pays the ransom cannot be the determinative fact. The question to be decid-
ed, for conviction under s 364A, is: 'what was the intention, and was it demand of ransom?
Non-communication of the demand to pay ransom to the victim does not take away the offence from the pur-
view of s 364A.
Demand for ransom even after murder of victim comes within the purview of s 364A as the main object of the
accused is to extort money from parents of the deceased victim by way of ransom.31
The offence is punishable by death sentence or life imprisonment, and fine. With a view to arresting the
alarming rise in kidnapping for ransom, the Legislature has stipulated severe punishment, which courts are
expected to bear in mind while sentencing.32

KIDNAPPING OR ABDUCTING WITH INTENT TO SECRET AND WRONGFUL CON-

FINEMENT
Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine per-
son.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully
confined, 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 365 comes into play when a person kidnaps or abducts another with intention to secretly and
wrongfully confine him.33 Love affair between the accused and the girl kidnapped from her lawful guardian-
ship does not absolve the accused from liability under the section 34. An intention to secretly and wrongfully
confine of the kidnapper or abductor has to be judged from the facts and circumstances of the case at
hand.35

KIDNAPPING OR ABDUCTING A WOMAN TO COMPEL HER MARRIAGE, ETC

Section 366. Kidnapping, abducting or inducing women to compel her marriage, etc.--Whoever kid-
naps or abducts any woman with intent that she may be compelled, or knowing it 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 inter-
course, or knowing 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 woman to go from any place with intent that she may be, or know-
ing 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 ab-
ducts her for the purposes mentioned therein.36 Even subsequent intent or act of intercourse with the kid-
napped or abducted girl cannot bring the case within the purview of s 366, if such an intent was absent at the
time when the accused enticed the girl.37'Abduction' under this section becomes punishable if the victim had
been carried of illegally by 'force' or 'deception' from one place to another place.38 This section is not directed
against seduction, which in its ordinary sense, means the inducing of a girl to submit to sexual intercourse for
the first time, or elopement, which is the running away of the woman, married or unmarried, with a lover, but
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it is 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 is the main
ingredient of this section. The essence of the crime is compulsion. 39 The intention of the accused to compel a
woman to marry or to submit to sexual intercourse against her will is the basis of the section. Intention, voli-
tion or conduct of the woman is irrelevant.40
Seduction in this section means not merely inducement to submit to illicit sexual intercourse for the first time,
but includes subsequent illicit sexual intercourse as well.41 However, in the case of a woman who habitually
carries on the profession of a prostitute, the essential element of seduction is ruled out and hence the of-
fence under s 366 cannot be committed in connection with such a woman. 42

Minor's Consent to Marry her Kidnapper--Is it 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 ,43 and the Oudh Chief Court in Bisnath Prasad v King Emperor ,44 have taken the
view that the phrase 'against her will' in s 366 means only the minor's own will and not the will of the lawful
guardian, whereas the Allahabad High Court in Bhagwati Prasad v Emperor ,45 and Sultan v Emperor ,46 and
the Bombay High Court in Emperor v Ayubkhan Mir Sultan ,47 have held that the minor's consent is no con-
sent at all, even for the purpose of this section, and that an offence under this section will lie in such circum-
stances. The Madras High Court has agreed with the view of the Bombay High Court and of the Allahabad
High Court, though it has not expressly decided the point.48
The principle in the above case was affirmed by the Supreme Court in its decision in Thakoral D Vadgama v
State of Gujarat ,49 where a rich industrialist had induced a minor girl of 16 to leave her home and 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 contact with the fami-
ly of the girl's 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,
skirt, silver waist band, etc. He was actually found on Mohini's bed by her mother at Mount Abu and his con-
nection 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 be-
fore 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 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 his house but some of her clothes, her school exercise books, etc, were taken from the garage,
where she had been asked to remain by the accused. The accused was given a lenient sentence of only rig-
orous imprisonment for 18 months.
The Supreme Court remarked that Mohini's mother's dignified protest letter to the accused indicated how the
mother of the girl belonging to a comparatively poorer family felt, when confronted with a rich man's dishon-
ourable behaviour towards her young impressionable, immature daughter, who also suggested to render fi-
nancial help to her husband in time of need. The Supreme Court distinguished its earlier ruling in Varadara-
jan's case and explained the meaning of the 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, act ual or con-
structive. These words merely mean 'to cause to go, to escort' or 'to get into possession'. No doubt, it does mean phys-
ical 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 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
but imperceptible impression culminating 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 uninflu-
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enced 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 by inducement, al-
lurement or threat, etc, and if this gain can be considered to have influenced the minor or weighed with her in leaving
her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead in-
nocence on the ground that the minor had voluntarily come to him. 50

The offence under s 366 is punishable by simple or rigorous imprisonment for a term up to seven years and
with fine.

PROCURATION OF MINOR GIRL

Section 366A. Procuration 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 fi-
ne.
Sections 366A and 366B were inserted in 1923 in pursuance of the International Convention for Suppression
of the Traffic in Women and Children. These provisions intend to punish the export and import of girls for
prostitution. Section 366A, which punishes a person who makes a girl under eighteen years of age to move
from any place with intend to force or seduce her for illicit intercourse with other person, deals with procura-
tion of minor girls from one part of India (except Jammu & Kashmir) to another. Section 366B deals with im-
port in India of a girl less than twenty-one years for prostitution from any foreign country or Jammu & Kash-
mir.
The term 'illicit intercourse' used in these provisions means sexual intercourse between a man and woman
who are not husband and wife.51 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 only for the first time but also at any time
or on any occasion.52
For convicting a person under s 366A it is essential to establish that he has induced a girl blow the age of
eighteen years to go from any place with the intent (or knowledge) that she would be forced or seduced to
illicit intercourse with someone other than himself.53 In the absence of any proof disclosing coercion or in-
ducement by the accused, he deserves acquittal of charges under s 366A.54
Section 366B 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.55
A convict under s 366A or s 366B is punishable by imprisonment for a term up to ten years and with fine.

KIDNAPPING OR ABDUCTING TO SUBJECT PERSON TO GRIEVOUS HURT

Section 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery,
etc.--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 subjected to grievous hurt, or slavery, or to the 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 Darshan Singh v State Punjab ,56 the Supreme Court convicted the accused under s 367 for abducting the
victim and mercilessly beating him.
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WRONGFULLY CONCEALING OR KEEPING IN CONFINEMENT A KIDNAPPED OR

ABDUCTED PERSON
Section 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted per-
son.--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 per-
son 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 kidnapped or abducted person.57 To constitute an offence under s 368 of the
IPC, it is necessary that the prosecution must establish that: (i) the person in question has been kidnapped
or abducted; (ii) the accused knew that the said person had been kidnapped or abducted, and (iii) the ac-
cused having such knowledge, wrongfully conceals or confines the person concerned.
So far as the second ingredient is concerned, it is an inference to be drawn by the courts from the various
circumstances. Whether there has been wrongful concealment or confinement 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 ,58 the accused had been charged of the offence of stealing a
new born child from its mother's 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 con-
viction under s 368, holding that under the circumstances, the inferences of concealment and guilt concur-
rently drawn by the courts below were justifiable and correct.

KIDNAPPING OR ABDUCTING CHILD UNDER TEN YEARS WITH INTENT TO STEAL

FROM ITS PERSON
Section 369. Kidnapping or abducting child under ten years with intent to steal from its per-
son.--Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishon-
estly any movable property from the person of such child, shall be punished with imprisonment of either de-
scription for a term which may extend to seven years, and shall also be liable to fine.
Section 369, as evident from its phraseology, provides punishment for kidnapping or abducting a child with
the intention of taking movable property from the person of such child. The kidnapper or abductor may be
ordered to undergo simple or rigorous imprisonment for a term up to seven years and may be ordered to pay
fine.

PART D - TRAFFICKING, SLAVERY AND FORCED LABOUR

Section 370. Trafficking of person.--

(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers,
or (e) receives, a person or persons, by--
First.--using threats, or
Secondly.--using force, or any other form of coercion, or
Thirdly.--by abduction, or
Fourthly.--by practising fraud, or deception, or
Fifthly.--by abuse of power, or
Sixthly.--by inducement, including the giving or receiving of payments or benefits, in order to
achieve the consent of any person having control over the person recruited, transported, har-
boured, transferred or received, commits the offence of trafficking.