Kidnapping and Abduction

INTRODUCTION

The word kidnapping has been derived from the word “kid” which means child and “napping” which means to steal. Thus, kidnapping literally means child stealing. The offence of kidnapping is an aggravated form of wrongful confinement and is, therefore, an offence in which all elements of that offence are necessarily present. Kidnapping and abduction are crimes under the Indian Penal Code, 1860. It talks about the forcefully taking of the person a child (from guardianship) with or without the consent for that matter. Both offences are given under Chapter-26 Offences affecting the Human Body, particularly from section 359 to 374 of the Indian Penal Code. Offences like kidnapping and abduction are a hindrance to some of the basic rights enjoyed by the people of India, which are also considered to be fundamental i.e. the right to freedom and personal liberty.

SECTION 359 – KIDNAPPING

Kidnapping is of two kinds : kidnapping from India and kidnapping from lawful guardianship. However, in some cases the two kinds may overlap with each other. For instance, a minor may be kidnapped from India as well as lawful guardianship.

SECTION 360 – KIDNAPPING FROM INDIA

Section 360 deals with kidnappings from India, which uses the terms “beyond the limits of India”. So herein, where a person crosses the boundary of India against his/her free consent is considered to be kidnapped from India.

As per defined under section 360 of IPC,

1	“Whoever conveys any person beyond the limits of [India] without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from [India].”

Essentials for this section are as follows –

1. Conveying of any person beyond the limits of India.
2. Such conveying must be without the consent of that person.

Further, it is not mandatory that they reach their destined location in a foreign territory for conviction; and if a person is caught held before crossing the boundary, then that will not lead to a conviction under this section but will be treated as an attempt to commit kidnapping from India.

The act of taking or kidnapping a person away from the territory of India is made a separate offence as it would be forceful removal of a person beyond the jurisdiction of India and Indian law enforcement officials. ‘Consent’ is also a very important term that needs to be taken into consideration, as it requires that such acts must be done without the consent of the person who is being kidnapped or of the guardian who is lawfully authorised to give consent. This means this section is applicable to both minors as well as legally major people.

SECTION 361 – KIDNAPPING FROM LAWFUL GUARDIANSHIP

The section penalises kidnapping of minors or of persons of unsound mind; in the case of males, the offence is committed if a minor below sixteen years of age is taken or enticed and in the case of females, the offence is accomplished if the same act is committed against a minor below eighteen years of age. Under this section, there is no age barrier for people with unsound minds.

As per defined under section 361 of IPC –

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“ Anyone who takes or entices any minor under the age of sixteen, whether 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 guardian, is said to kidnap such a minor or lawful guardian.

EXPLANATION – the words ‘lawful guardian’ in this section include any person lawfully entrusted with the care or custody of such minor or other person.

1	EXCEPTION - this section does not extend to 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.”

Essentials for this section are as follows –

1. Take or entice away a minor or a person of unsound mind.
2. Such minors must be under 16 years of age, if a male, or under 18 years of age, if a female.
3. The taking or enticing must be out of the keeping of the lawful guardian of such a minor or person of unsound mind.
4. Such taking or enticing must be done without the consent of such a guardian.

➢ Talking or enticing

1	As the definition of both the words taking and enticing has not been defined under the code; the word taking does not mean a forceful act. It implies no active or constructive force. Further, the consent of the child is not valid.

However, in the case of S. Varadarajan v. State of Madras , where the court studied the facts, the girl, who is almost on the verge of almost attaining a majority, had voluntarily left her father’s house. She married the accused at a registered office. The court found that there was no active role played by the accused to persuade her to leave the house. This was at the core of the conviction; the court was satisfied that such an act was not an offence under section 361.

But in the case of the State of Haryana v. Raja Ram , a minor who was 14 years old met the person accused and became friendly with him. The victim’s father had warned him not to talk to his daughter. But the accused used the third person to talk to her, persuading her to leave her home to be with him. When she met him, he seduced her and committed rape when she was a minor.
When the Supreme Court was put with a question as to whether this would amount to kidnapping from lawful guardianship, the court replied yes. It stated that the section does not require any force or fraud to be committed. The active role played by the accused to persuade her to leave her lawful guardian’s place itself attracted the section. Hence he was made liable under section 361.

➢ Age of the minor

1	As the code has specified the age for both male and female who can be a victim under this offence, it is now the duty of the prosecution to prove that at the time of the commission of the offence, the age of the victim was below 16 years if it is male and below 18 years if it is female.

➢ Keeping of lawful guardian

1	The section uses the term "lawful guardian" and not the legal guardian who makes the ambit of such guardianship wider. This would include not only parents but also others like teachers, relatives, etc. who are lawfully entrusted with the duty of care of such minor or unsound minded person.

➢ Consent

1	Consent is the main essential which might help the accused in getting away with the criminal liability of such an offence. Thus, it must be proved that the guardian has not consented to take away a minor’s consent if there is no valid consent.

Further, if the guardian has consented after the act of kidnapping, then it is totally irrelevant.

SECTION 363 – PUNISHMENT FOR KIDNAPPING

The offences under this section are cognizable, bailable, non-compoundable and triable by first class magistrates.

As per defined under section 363 of IPC –

1	“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.”

SECTION 362 – ABDUCTION

According to Blackstone,
“Abduction in general signifies the act of illegally taking or leading away, carried off by force of a child, ward, voter or wife. This may be by fraud, persuasion, or open violence”.

According to Section 362 of the Indian Penal Code,

1	“Whoever by force, compels or by any deceitful means induces any person to go from any place, is said to abduct that person”

The ingredients for abduction as stated in section 362 are:

1. The forcible compulsion or inducement by deceitful means;
2. The object of such compulsion or inducement must be the going of a person from any place.

➢ By Force

The term ‘force’, as embodied in section 362 of the Indian Penal Code, means the use of actual force and not merely a show of force or a threat of force.

Illustration : The accused threatens the victim with a pistol to get her to go with him. This would amount to abduction under this Section.

➢ Inducement

In inducement, there is some active suggestion on the part of the abductor, which is the case of the person abducted to move to some place where he would not have gone to, if not for this suggestion.

➢ Deceitful means

‘’Deceitful’ means misleading a person by making false representation and thereby persuading the person to leave any place. The expression ‘deceitful means’ includes a misleading statement. Deceitful means is used as an alternative of ‘use of force’ and it is a matter of intention, with the intention of the accused being the basis of the charge.

➢ Object being the going of a person from one place

In the end, the object of the inducement or compulsion from the accused has to be to make the person go from one place to another. If the intention of the accused for the inducement or compulsion is another wrong, then it will be dealt with by a different section.

In Bahadur Ali v. King Emperor , a kidnapped girl who managed to escape from the kidnappers met the accused, who misrepresented to her that he was a Police Constable. He told her that he would take her to the police station, but instead, took her to his house, kept her there, demanded and took a random of Rs. 600 from her mother, before he handed her back. It was held that his actions amounted to abduction.

In the case of Mahbub v. R , an orphaned girl aged about 17 years was brought up by her guardian as his own daughter. The neighbour induced her to leave her home on the assurance that either he himself would marry her or get her married. He debauched her himself and handed her over to one of his friends who proceeded to have illicit connections with her. The neighbour was held guilty of the offence of abduction. It was held that the expression ‘deceitful means’ is wide enough to include the inducing of a girl to leave her guardian’s house by means of a representation that the person with whom she went with would either marry her himself or arrange for her marriage.

Section 362 only defines the term ‘abduction’. Therefore, abduction per se is not an offence under the Indian Penal Code. It is an offence when it is accomplished with certain intent to commit another offence. Force or fraud is essential to make abduction punishable.

1	Abduction, if it falls in the categories provided under sections 364, 365, 366, 367, and 369, will amount to an offence. Thus, abduction is an offence only if it is done with intent to:

1. Commit murder (Section 364);
2. Secretly and wrongfully confining a person (Section 365);
3. Induce a woman to compel her marriage (Section 366)
4. Subject a person to grievous hurt, slavery etc. (Section 367);
5. Kidnapping or abducting a child under ten years of age with intent to steal from that person.

AGGRAVATED FORMS OF KIDNAPPING OR ABDUCTION (SECTIONS 363A-369)

1. SECTION 363-A: KIDNAPPING OR MAIMING A MINOR FOR PURPOSES OF BEGGING

Section 363A of the Indian Penal Code states that:
I. Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains custody of the minor, in order that such minor may be employed or used for the purpose 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.
II. 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 a fine.
III. 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.
IV. In this section,—
a. ‘begging’ means—
i. soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
ii. entering 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.

The offence under Section 363-A is cognizable, non-bailable, non-compoundable, and triable by the Magistrate of First Class.
Maiming a minor in order that such a minor may be employed or used for purposes of begging is cognizable, non-bailable, non-compoundable, and triable by the court of session.

2. SECTION 364: KIDNAPPING OR ABDUCTING IN ORDER TO MURDER Section 364 of the Indian Penal Code states that,
   “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 or 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.

1	(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.

Section 364 of the IPC will apply if a person has been abducted with the intention that he be murdered, the actual murder of the person is not required.
This offence is cognizable, non-bailable, non-compoundable and triable by the Court of Session.

3. SECTION 364-A KIDNAPPING FOR RANSOM Section 364-A of the Indian Penal Code states that
   “Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death of hurt to such person, or by his conduct, 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 inter-governmental organisation 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”

In the case of Malleshi v. State of Karnataka , the Supreme Court held that the demand for ransom was clearly conveyed to the victim, though it was not made to his father, who would ultimately have made the payment. The person who pays ransom is not determinative. The conviction under Section 364-A by the Trial Court was proper and only because the demand was not conveyed to the father of the victim, the case does not come out of the purview of Section 364-A of the Indian Penal Code.

This offence is cognizable, non-bailable, non-compoundable and triable by the Court of Sessions.

4. SECTION 365: KIDNAPPING OR ABDUCTING WITH INTENT SECRETLY AND WRONGFULLY TO CONFINE PERSON

Section 365 of the Indian Penal Code states that

“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 7 years and shall also be liable to fine”

In Shaik Ramjan v. State , it has been observed that there was ample evidence to show that the victim was taken away under deceit and then sold to a brothel house. She was not a minor at the time of the incident. As a result, the accused could not be convicted under Sections 366 or 372, and could only be convicted under Section 365.

5. SECTION 366 : KIDNAPPING ABDUCTING OR INDUCING WOMAN TO COMPEL HER MARRIAGE ETC.

Section 366 of the Indian Penal Code states that:
“Whoever kidnaps 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 intercourse, 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; 1[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 knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid”

This offence is cognizable, non-bailable, non-compoundable and triable by the Court of Session.

6. SECTION 366-A PROCURATION OF MINOR GIRL Section 366-A of the Indian Penal Code states that,
   “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”.

The offences under this section are cognizable, non-bailable, non-compoundable and triable by the Court of Session.

7. SECTION 366-B: IMPORTATION OF GIRL FROM FOREIGN COUNTRY Section 366-B of the Indian Penal Code states that, “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 a fine”

The offences under this section are cognizable, non-bailable, non-compoundable and triable by the Court of Session.

8. SECTION 367: KIDNAPPING OR ABDUCTING IN ORDER TO SUBJECT PERSON TO GREVIOUS HURT, SLAVERY ETC.

Section 367 of the indian Penal Code provides that:
“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 grevious 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 which may extend to ten years, and shall also be liable to fine”.

In Darshan Singh v. State of Punjab , the Supreme Court convicted the accused under Section 367 of abducting the victim and mercilessly beating him.

The offences under Section 367 are cognizable, non-bailable, non-compoundable and triable by the Court of Session.

9. SECTION 368: WRONGFULLY CONCEALING OR KEEPING IN CONFINEMENT, KIDNAPPED OR ABDUCTED PERSON Section 368 of the Indian Penal Code states that,
   “Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such a person, shall be punished in the same manner as if he had kidnapped or abducted such person 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”

The essential ingredients for such an offence are:

1. That the person in question has been kidnapped or abducted.
2. That the accused knew that the said person had been kidnapped or abducted.
3. That the accused has such knowledge, wrongfully conceals or confines such a person.

In the case of Smt. Saroj Kumar v. State of UP , the accused was charged with the offence of stealing a new-born child from its mother’s delivery bed in a 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 conviction under Section 368, holding that under the circumstances, the inferences of concealment and guilt concurrently drawn by the courts below were justifiable and correct.

10. KIDNAPPING OR ABDUCTING A CHILD UNDER 10 YEARS WITH INTENT TO STEAL FROM ITS PERSON Section 369 of the Indian Penal Code provides that:
    “Whoever kidnaps or abducts any child under the age of ten years with the intention of dishonestly taking any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine”

The offence under this section is cognizable, non-bailable, non-compoundable and is triable by a Magistrate of the First Class.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION :

1) Kidnapping occurs with reference to a minor or a person of unsound mind, whereas abduction can be with regard to any person.

2) In kidnapping the method of doing the deed can be innocent, whereas in abduction the use of force or deceit is necessary.

3) In kidnapping consent is irrelevant, whereas in abduction there is force or deceit and therefore there is lack of consent. If consent is there, abduction cannot be done.

4) In kidnapping the intention of the offender is not taken into consideration. He will be liable in all circumstances irrespective of a valid motive or good intention, whereas intention is very important in determining the offence of abduction. Hence, a person would be liable only if there is ill intention behind the act.

5) Kidnapping from guardianship itself is an offence, however kidnapping itself is not an offence but if on the grounds described under section 364 if abduction is done then it amounts to an offence.

6) Kidnapping is not a continuing offence. The offence is completed as soon as the minor is removed from the custody of his or her guardian, whereas abduction is a continuing offence. The offence is in continuation as the place of the abducted person changes from one to another.

CONCLUSION

As stated in criminal law, kidnapping is the unlawful diverting and imprisonment of a man without wanting to. This is a composite wrongdoing which infringes on the basic right to life and liberty of a person as embodied by article 14 of the Indian Constitution. With the steady increase in the number of these heinous crimes the need to prevent the cases of kidnapping and abducting has become particularly important, especially when it is done for forced beggar, maiming and, sexual intercourse. Kidnapping and abduction are important specific offences and they have been drafted with the objective of protecting the person of individuals. In its 42 report, the Fifth Law Commission has suggested changes to the definition of both offences.