Kidnapping has been codified as a criminal offence under the Indian Penal Code,1860. Section 359-363 deals with the offence of Kidnapping. Kidnapping is the unlawful taking away or conveying of a person and wrongfully confining the person against his or her will. Kidnapping literally means “Child-Stealing” however the offence has not been only confined to child stealing. It is an aggravated form of wrongful confinement.
Section 359
This section deals with the kinds of Kidnapping.
1. Kidnapping from India
2. Kidnapping from Lawful Guardianship:
Kidnapping has been given a wider connotation as meaning carrying away of a human being against his or her consent or the consent of some other person legally authorized to give consent on behalf of such person.[1]
Section 360 [Kidnapping from India]
As per Section 360 Kidnapping from India means,
“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.”
Ingredients of the Section:
1. Person must be conveyed beyond the limits of India; and
2. Such conveyance must be without the consent of that person or of someone legally authorized to consent on behalf of that person.
Punishment for kidnapping from India is provided in Section 363.
Section 361 [Kidnapping from Lawful Guardianship]
As per Section 361 Kidnapping from Lawful Guardianship means,
“Whoever takes or entices any minor under (sixteen) years of age if a male, or under-(eighteen) years of age of 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 minor or person from lawful guardianship.”
Explanation:
“Lawful Guardian” includes any person who is lawfully entrusted with care and 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Object of the Section:
The purpose of this section is to protect minors and persons of unsound mind from being exploited and protect the rights of guardians who have the lawful charge or custody of their wards. Thus absence of consent of the parent or guardian is the main ingredient of this section.
Ingredients:
The following are the ingredients of Section 361:
- Taking away or enticing of a minor or a person of unsound mind
Enticing is inducing hope or desire in the mind of a person to make him do things which he wouldn’t do otherwise. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.[2]
The expression used in Section 361, I.P.C. is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, “to cause to go,” “to escort” or “to get into possession”.[3]
- Such minor must be under 16 years of age if a male and 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.
The act of taking is not a continuous act and as such when once the boy or girl has been actually taken out of the keeping, the act is complete.[4]
The Court in Vardargan V. State of Madras[5] highlighted the dichotomy between ‘taking’ and ‘allowing a minor to accompany a person’. Stating that the two are not synonymous held that where the minor having capacity to understand the consequences of her actions voluntarily joins the accused on her free will, the accused cannot be held liable for taking her away from the keeping of lawful guardian.
- The taking or enticing must also be without the consent of the guardian.
The consent of the minor is immaterial for this section and its only the consent of the guardian that will take the case out of the purview of this section.
The Supreme Court in Pradeep Kumar v. State of Bihar and Anr [6] held that the consent obtained by lying to the father of the girl regarding the purpose of taking his minor daughter away cannot be termed as consent under the purview of this section and such taking away would amount to kidnapping.
Section 363 [Punishment for Kidnapping]
As per Section 363,
“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.”
The punishment for the offence of kidnapping provides for both fine and imprisonment.
Frequently Asked Questions:
1. Why Kidnapping is not a continuing offence?
Kidnapping is not a continuous offence because the moment the conveyance of any person outside India or taking away the minor or person of unsound mind out of the keeping of lawful guardian is complete, the offence is kidnapping is said to have been committed.
2. Why is kidnapping illegal?
Kidnapping is an aggravated form of wrongful confinement where a person is taken outside the country or keeping of lawful guardian without his or her consent or without the consent of his or her guardian. Such an act which threatens the security and restricts the personal liberty is an illegal act except when it is done in good faith.
Edited by Chiranjeeb Prateek Mohanty
Approved & Published – Sakshi Raje
Reference
[1]Kenny’s outlines of criminal law, 19th ed. (1966) P. 204; Section 361, IPC
[2]State of Haryana V. Raja Ram, AIR 1973 SC 819
[3]Thakorlal D. Vadgdama v. The State of Gujarat, AIR 1973 SC 2313
[4] Nemaj chattoraj V. Queen Empress, (1990) 27 Cal 1041
[5] AIR 1965 SC 942
[6] AIR 2007 SC 3059
