Kidnapping and Abduction under The Indian Penal Code, 1860

This article is about the Kidnapping and Abduction under the IPC, 1860

Introduction

Kidnapping and Abduction are two particular offences under IPC. The word kidnapping has been derived from the word; “kid” which in English means “a child”, and “napping” which means “to steal”. Therefore, the literal meaning of kidnapping stands to be stealing a child.

Section 359 of IPC[i] divides kidnapping into two parts –

1. Kidnapping from India provided under section 360 of IPC
2. Kidnapping from lawful guardianship, provided under section 361 of IPC

Kidnapping from India

Section 360 of IPC[ii] provides the meaning of Kidnapping from India and Section 363 of IPC lays down the punishment of the offence. The essentials of Section 360 of IPC are –

1. A person must be taken away to a place which is beyond the limits of India.
2. Such taking away of a person must be without his/her consent[iii], or without the consent of the legally authorized person on his behalf.

The word “convey” under Section 360 of IPC means carrying a person to another destination. The words “beyond the limits of India” means that the moment a person is taken outside the geographical territory of India without his consent.

Example: ‘A’ kidnaps ‘B’ and tries to escape from the country but, on his way before reaching the other country, Police caught him. Here, the offence of kidnapping though not complete, amounts to the offence of attempt to kidnap from India.

Kidnapping from Lawful Guardianship

Section 361 of IPC[iv] makes kidnapping from the lawful guardian an offence. It states that a minor person, below the age of sixteen in case of a male, and below the age of eighteen in case of a female, cannot be taken away without the consent of his/her parents or any lawful guardian who is to give consent on his/her behalf. This section also extends its protection to the people of unsound mind[v].

The essential elements that are required for an act to be called as an offence under this section are:

1. A person must take or entice another person
2. The person who is taken must be either a minor, or a person of unsound mind
3. In case of a male, the person must be below the age of 16 years, and in case of female, the person must be below the age of 18 years
4. The taking of the person must take place out of the lawful guardian who has the authority over that person
5. There must not be any consent of the lawful guardian in the process of taking or enticing the person[vi]

In the case of Thakori Lal D. Vadgama v. The State of Gujarat[vii], the accused was charged with the offence of enticing and taking a girl below the age of 15 years (minor) from the custody of the lawful guardian without his/her consent. The counsel on behalf of the accused contended that the girl came out of her guardian’s house as per her own will.

The court rejected the contention and convicted the accused stating that the word ‘entice’ is associated with an inducement and allurement by which one person gives hope of raises the desires of another.

If one person induces, promises or raises the desire of another (minor) by fancy words to leave her parent’s house then such a person will also be guilty of kidnapping and it would be prima facie difficult for him to plead innocence on the ground that the minor had come to him voluntarily.

However, if the minor comes to the accused leaving her lawful guardian completely uninfluenced, voluntarily by virtue of some promise or offers from the accused then in such a case, the accused cannot be held liable under Section 361 of IPC.[viii]

Lawful Guardian

The term “lawful guardian” under Section 361 of IPC has a broader meaning. It states that the guardian must be lawful and not necessarily a legal guardian. In the case of Empress v. Pemantle[ix], the court made a distinction between Legal guardian and lawful guardian. A legal guardian is the one who is appointed by law as a guardian. Such appointment is in relation to the law of the land and the person to whom he is appointed as a guardian.

Lawful guardian is the one who gets the custody of the minor by virtue of law. Thus, a legal guardian is also a lawful guardian. For example, when a minor goes to school, the principal and other teachers act as his lawful guardian as they have gained his custody by law, on the other hand, his parents are his legal guardian. Even during the office hours, the employer acts as the lawful guardian of the employees.

If the minor herself goes away from his/her guardian or abandons the guardian with the intention of not returning back then, she cannot be said to be under the custody of the lawful guardian. If the facts of the case make it clear that the minor girl left her father’s house voluntarily, being fully aware of the nature and consequences of her act and joins the accused then the offence of kidnapping does not take place and it amounts to a voluntary act.[x]

In the case of Taj Mohammad v. State of Madhya Pradesh[xi], a minor girl named Ivy was in a relationship with the accused and both of them were quite intimate with each other. The accused visited her father’s house during Diwali and soon after this, the minor left her house. Later on, it was found that both of them were sitting next to each other in the Railway Station. Here the accused was held liable for kidnapping as the father was a lawful guardian of the minor girl, and all other ingredients necessary for Kidnapping were present in this case.

There is an exception to kidnapping under lawful guardianship. Section 361 does not apply to those persons who in good faith believes himself to be the father of an illegitimate child or in good faith believes that he possesses the lawful custody of such a child, until and unless such an act is committed with a guilty mind for fulfilling an improper or unlawful intent.

Punishment for Kidnapping

Section 363 of IPC[xii] provides the punishment for kidnapping from India or from the lawful guardianship with imprisonment up to seven years and fine.

Abduction

Section 362 of IPC[xiii] defines Abduction. The literal meaning of abduction is to carry away a person by the use of force or through fraudulent means.[xiv] Section 362 of IPC states that abduction is when a person with some deceitful or malicious intention forces or induces another person to move from any place. Abduction in itself is not a crime when it is in its pure and simple state, however, when abduction is accompanied with an intention to commit another offence it becomes punishable under this section.

The essential elements required for abduction are as follows:

1. There must be a forceful compulsion or inducement by means of deceit or fraud
2. The object underlying such forceful compulsion must be the going of a person from any place.

The force used in this offence is not merely a threat or a show, it must amount to the actual application of force. Even if a person carries an old woman by the use of force against her consent for sending her back to her husband it will amount to the offence of abduction and that person shall be held liable.[xv]

In the case of Gurucharan Singh v. State of Haryana[xvi], the accused had put the victim under his pistol and threatened him. The accused then took her to the fields outside the village. The court observed that the accused in this case used an excess amount of force, and such use of force leads to abduction.

The word deceit implies that there was a false representation made by one person towards another because of which that person left the place. There must be the use of fraud and misrepresentation for an act to become an offence under abduction. In the case of R v. Cort[xvii], it was held that if the consent of a person is obtained by means of fraud, misrepresentation, or compulsion then such consent will not be a valid one and the person will not be able to get exempted from the liability of abduction.

The last and the most important essential of abduction is that the act must compel the person to move from one place to another. It does not necessarily be from the custody of the lawful guardianship.

In the case of Bahadur Ali v. King Emperor[xviii], a girl was kidnapped, although she tried to escape from that place, on the way she met the accused who made misrepresented her by saying that he is a police constable. The accused then fraudulently took her to his house and then demanded 600 Rupees from her mother. The court held the accused guilty of abduction and punished him.

The distinction between Kidnapping and Abduction

BASIS	KIDNAPPING	ABDUCTION
Age of the Aggrieved Party	For the offence of Kidnapping, section 361 of IPC lays down that the age of the aggrieved person should be below 16 in case of males and below 18 in case of females.	For the offence of Abduction, there is no provision of age. Any person who by force and deceit compelled another person to move from one place to another becomes liable for abduction
Removal from lawful Guardianship	During the offence of Kidnapping the aggrieved is removed from his/her lawful guardianship.	In abduction, there is no concept of lawful guardianship.
Means	In kidnapping, a person is taken away or is enticed from his/her lawful guardian. There is no such means of taking in Kidnapping.	In abduction, certain improper means like force, fraud, deceit comes into play.
Consent	For kidnapping, the consent of the person who is kidnapped is not necessary, it is only the consent of the lawful guardian that matters.	For abduction, consent plays a vital role, if there is a presence of express and voluntary consent of the abducted person then such an act will not be a punishable offence.
Intention of the Accused	In kidnapping, the intention of the person committing the offence is immaterial and irrelevant.	In abduction, the intention of the accused plays a very vital role in order to ascertain whether he is guilty or not.
Continuity of the Crime	Kidnapping completes as soon as the minor or the person who is of unsound mind is removed from the custody of his/her lawful guardian. Hence, it is not a continuing offence.	Abduction continues from the time the person is removed till the time he is sent to another place. Hence, it is a continuing offence.

Aggravated forms of Kidnapping and Abduction

1. Section 363A of IPC makes Kidnapping for begging a punishable offence. The main objective of this section is to punish those persons who organize the begging industry and recruits people for the same. This practice has become a social evil now and grievous punishment should be awarded to those who engage and exploit the children for the purpose of begging.

The section makes maiming of a minor, kidnapping or obtaining his custody for evil purpose- employing him to begging a punishable offence and provides him/her an imprisonment of 10 years or fine.

2. Section 364 of IPC provides that where the kidnapping or abduction takes place with the object of murder, the accused shall be punished with imprisonment up to 10 years and fine.

Illustration: If ‘A’ takes ‘B’ forcefully and then carries him to such a place where he will get murdered then that person will become liable under section 364 of IPC.

3. Section 364A of IPC makes those persons punishable who kidnaps and detains a person in order to cause death or grievous hurt to that person and the action of the accused causes reasonable apprehension in the mind of the person. The maximum punishment under this section is the death penalty or life imprisonment and fine.

In the case of Akram Khan v. State of West Bengal,[xix] the Hon’ble Supreme Court held that severe punishment must be awarded to those people who commit Kidnapping for Ransom even if such kidnapping has not led to the death of anyone, as day by day, the number of such crimes is getting increased. The judgement was also upheld later in the cases of Mlleshi v. State of Karnataka[xx] and Vinod v. State of Haryana.[xxi]

4. Section 365 of IPC provides that kidnapping and abduction of a person with the intention of secretly confining him and not letting him live freely are punishable with imprisonment up to 7 years and fine. While awarding punishment under this case, the court looks into the intention of the wrongdoer. If the intention is found to be guilty then that person becomes liable under this section.

5. Section 366 of IPC makes a person punishable who kidnaps or abducts a woman with the intention of forcing her and compelling her to marry him. Such an act takes place without the consent or will of the woman. The section also punishes those who kidnaps a woman in order to have illicit intercourse with her.

If a woman above the age of 18 years goes to her husband voluntarily then no offence of abduction will take place against the husband.[xxii]

If the same offence as defined under Section 366 of IPC takes place against a girl who is minor, then the offender becomes punishable as per the provisions of Section 366A of IPC which speaks explicitly about the “procuration of the minor child”. Such kind of offence is cognizable, non-bailable and can be tried by the court of session. The punishment awarded under this section extends to imprisonment up to ten years and fine.

6. Section 366B of IPC punishes the persons who import a girl from the territory of a foreign country to India with the intention of compelling her for illicit intercourse. Such a girl must be below the age of 21 years. The punishment awarded in this case extends to an imprisonment of 10 years and fine.

7. Section 367 of IPC punishes those persons who kidnap or abducts someone with the intention of inflicting hurt to him or to subject that person to slavery. This section provides imprisonment to the offender to a period of 10 years and fine.

8. Section 368 of IPC punishes the offenders who conceal or keeps a person in confinement after kidnapping or abducting him.[xxiii]

9. Section 369 of IPC punishes the offenders who are involved in the kidnapping and abduction of a child (under the age of 10) in order to ask for money and steal the property of that child. The punishment awarded in this section extends to the imprisonment of seven years and fine.

Author: Sayani Banerjee | Symbiosis Law School, Hyderabad

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[i] Section 359 of the Indian Penal Code

[ii] Section 360 of the Indian Penal Code

[iii] Section 90 of IPC defines ‘consent’

[iv] Section 362 of the Indian Penal Code

[v] Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004 Edition) 2008, pg. 649.

[vi] Biswanath Mallick v. State of Orissa, 1995 CrLj 1416 (Ori)

[vii] AIR 1973 SC 2313

[viii] Khalandar Saheb (in re:), (1955) Cr Lj 581

[ix] ILR (1882) 8 Cal 971

[x] S. Varadarajan v. State of Madras, AIR 1965 SC 942

[xi] 1961 1 Cr. Lj 513

[xii] Section 363 of the Indian Penal Code

[xiii] Section 362 of the Indian Penal Code

[xiv] Chambers Twentieth Century Dictionary, ( Edn., William Geddie, 1966), p. 2, Vishwanath v. State of Uttar Pradesh, AIR 1960 SC 67

[xv] Allu v. Emperor, AIR 1925, Lah 512

[xvi] AIR 1972 SC 2661

[xvii] (2004) 4 All ER 137 (CA)

[xviii] AIR 1923 Lah 158

[xix] AIR 2001 SC 116

[xx] AIR 2001 SC 4865

[xxi] AIR 2008 SC 1142

[xxii] Lalta Prasad v. State of Madhya Pradesh AIR 1979 SC 1276

[xxiii] Soham Singh AIR 1939 Lah 180