Author: Mehrul Arora.
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 –
- kidnapping from India, and
- kidnapping from lawful guardianship.
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.
KIDNAPPING FROM INDIA
Section 360 – 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.
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]
KIDNAPPING FROM LAWFUL GUARDIANSHIP
Section 361 – 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 guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
The essential ingredients are four in number[3]–
- Taking or enticing away a minor or a person of unsound mind.
- Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female.
- The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
- Such taking or enticing must be without the consent of such guardian.
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’.
1)Taking or enticing away a minor or a person of unsound mind.
The word “takes” does not necessarily connote taking by force andit is not confined only to use of force, actual or constructive. This word merely means, “to cause to go”, “to escorts” or “to get into possession”. No 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 in 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. The two words “takes” and “entices’, as ‘used in s. 361, IPC. areintended to be read together so that each takes to some extent its colour, and content from the other.[6]Furthermore, in determining whether a person takes a minor out of the lawful keeping of its guardian, the distance to which the minor is taken away is immaterial.[7]If the accused played some role at any stage soliciting or persuading the minor to abandon the legal guardianship, that was sufficient to hold him guilty. Promise of marriage made to the minor girl for leaving the hose of the lawful guardian was held to be an enticement.[8]
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.
In the case of Siddhapal Kamala Yadav v. State of Maharashtra[15], it was held thatthere are four kinds of persons who may be said to be non compos mentis (not of sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4) one who is drunk.Where a girl aged 20 years had been made unconscious from dhatura poisoning when she was taken away, it was held that she could not be said to be a person of unsound mind, and the person taking her away could not be guilty of kidnapping[16].
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]
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]
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION
It is well-known that kidnapping and abduction are two distinct offences and the distinction is as follows[23] –
| KIDNAPPING | ABDUCTION |
| Kidnapping except kidnapping from India is an offence against guardianship. As defined in Section 361, IPC it consists of enticing or removing a minor from the keeping of the lawful guardian without his consent. | Abduction is an offence as defined in Section 362, IPC when a person is by force compelled or by any deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. |
| Kidnapping is punishable per se under Section 363, IPC. | Abduction is not punishable per se. |
| Kidnapping may also be for the purpose mentioned in Sections 364 to 366, IPC those sections deal with both kidnapping and abduction for the purpose stated therein and prescribe the punishment.
|
Abduction is punishable only when accompanied by a particular purpose as contemplated under Sections 304 to 356, IPC. |
CONCLUSION
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.
[1] Emperor v. Haribhai Dada (1918) 20 Bom LR 372.
[2] Section 90 of IPC.
[3]Biswanath Mallick v. State of Orissa,1995,CrLJ 1416 (Ori).
[4] AIR 1965 SC 942: 1965 (2) CriLJ 33.
[5] AIR 1954 Bombay 339.
[6]Thakorlal D. Vadgama v. State of Gujarat, AIR 1973 SC.
[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.
[9]Shajahan v. State, 2011 CrLJ 573.
[10] Supra 3; Queen v. Prince (1875) LR 2.
[11] AIR 1973 SC 819.
[12] Reg v. George Kipps, 4 Cox. Cr. C. 167.
[13] Zahoor Ali v. State of U.P., 1989 CrLJ 1177 (All).
[14] (2004) 1 SCC 339: AIR 2004 SC 227.
[15] AIR 2009 SC.
[16] Din Mohammad v. The Crown, 1939 20 Lah 517.
[17]Nathusingh, (1942) Nag 34.
[18]Jagannadha Rao v. Kamaraju, (1900) 24 Mad.
[19] Supra 11.
[20] Hopkins, (1842) Car & Mar 254.
[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.
[22] A. gounden (in re) AIR 1959 Mad. 276.
[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.
Criminal Law Research & Review 