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KIDNAPPING[1] AND ABDUCTION[2]

Table of Contents

QUESTION BANK

Q.1. What is kidnapping from lawful guardianship? Distinguish between Kidnapping

and Abduction.

SHORT NOTES

Kidnapping from lawful guardianship.
Kidnapping women to compel her to marry or force her to illicit intercourse.
Kidnapping and Abduction.

SYNOPSIS

I] KIDNAPPING

A) INTRODUCTION

B) KIDNAPPING MEANS

C) KINDS OF KIDNAPPING

1) Kidnapping from India (S. 360)

2) Kidnapping from lawful guardianship (S. 361)

a) Explanation
b) Exception
D) DIFFERENCE BETWEEN ‘KIDNAPPING FROM INDIA’ AND

‘KIDNAPPING FROM LAWFUL GUARDIANSHIP’

II] ABDUCTION: – (S. 362)

A) DEFINATION
B) DIFFERENCE BETWEEN KIDNAPPINGS FROM

GUARDIANSHIP & ABDUCTION

1) As to person

2) Removal of person

3) Means used

4) Consent

5) Intention

6) Type of offence

7) Nature of Offence

C) Aggravated forms of kidnapping or abduction (Ss. 363 A to 369)

NOTE

Kidnapping or abducting woman to compel her to marry or force her to illicit

intercourse (S. 366, S. 366 A and 366 B): –

1) Kidnapping, Abducting or inducing woman to

compel her marriage, etc. (S. 366).

2) Procreation of minor girl. (S. 366-A).

3) Importation of girl from foreign country (S. 366-B)

I] KIDNAPPING:-

A) INTRODUCTION:-

Kidnapping and Abduction are offences against the human body. Ss. 359 to 374 have made Kidnapping and Abduction punishable. The object of these provisions is to secure the personal liberty of citizens, to give legal protection to the children from being abducted or seduced for improper purposes, and to preserve the rights of parents and guardians over their wards for custody or upbringing.

B) KIDNAPPING MEANS:-

At Common Law (Law of England), Kidnapping consists of stealing and carrying away or secreting of any human being against his/ her consent or the consent of some person legally authorised to consent on behalf of such person.

The offence of Kidnapping is an aggravated form of ‘wrongful confinement’. Therefore, in the offence of Kidnapping, all necessary elements of ‘wrongful confinement’ must be present. It is, however, confinement of such a serious form that this Code treats it as a distinct offence.

C) KINDS OF KIDNAPPING:-

Kidnapping is of two kinds–

1) Kidnapping from India (S. 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.

Thus, the offence under this section may be committed in respect of any

person, male or female, major or minor, irrespective of his nationality.

Punishment for Kidnapping from India and from lawful guardianship (S. 363) –

Imprisonment up to 7 years and a fine.

2) Kidnapping from Lawful Guardianship[3] (S. 361): –

Whoever takes or entices-

any minor male under 16 years of age, or
any minor female under 18 years of age, or
any person of unsound mind-
i) out of the keeping, and
ii) without the consent of the lawful guardian,

– is said to kidnap such a minor or person from lawful guardianship.

a) Explanation: – The words ‘lawful guardian’ in this section include any person

lawfully entrusted with the care or custody of such minor or other person.

b) 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 an act is committed for an immoral or unlawful purpose.

The object of this section is to protect minors and persons of unsound mind from exploitation and to protect the rights and privileges of guardians having the lawful charge or custody of their words.

The gravity of the offence of kidnapping lies in the ‘taking’ or ‘enticing’ of a minor under the specified age out of the keeping of the lawful guardian without the consent of such guardian. Thus, the consent of the minor, who is taken or enticed, is wholly immaterial; only the guardians’ consent takes the case out of the purview of S.361.

However, in Varadrajan’s Case[4]

Facts: – Savitri is a student in the second year of B.SC. i.e., below 18 years but on the verge of attaining majority, telephoned the accused to meet her in his car at a certain place, went to that place, and, finding the accused waiting in the car, got into that car on her own accord. Went together to the registrar’s office and got their marriage registered. Thereafter, they remained husband and wife. There was no evidence of the use of force or inducement. On the contrary, it appeared that insistence on marriage came from the girl.

Held: – That accused is not guilty of taking away the girl out of the keeping of her

father.

D) DIFFERENCE BETWEEN ‘KIDNAPPING FROM INDIA’ AND

‘KIDNAPPING FROM LAWFUL GUARDIANSHIP’

1) A person of any age can be kidnapped from India. Whereas only a minor

and a person of unsound mind can be kidnapped from lawful guardianship.

2) In Kidnapping in India, consent of the person kidnapped or authorised

by consent is a good defence. Whereas, in kidnapping from a lawful guardian, the consent of a minor is no defence.

3) The offence of Kidnapping is complete when the minor is actually taken

from lawful guardianship; therefore, it is no continuing offence, and

, therefore, cannot be abetted.

However, Kidnapping from India is a continuing offence that can be abetted.

II] ABDUCTION (S. 362):-

A) DEFINITION:-

Abduction itself (simpliciter) is no offence unless it is done with intent to commit an offence, to rob, to murder or to confine or to compel marriage.

362 defines ‘Abduction’ as-

Whoever-

i) by force, compels, or
ii) by deceitful means induces,

Any person to go from any place is said to ‘Abduct’ that person.

The words ‘by force compels’ denote that the accused must use actual force. Mere show or threat does not constitute ‘Abduction’.

The words ‘by deceitful means’ denote anything done by the accused to mislead another. Thus, inducing a girl to leave her guardian’s house constitutes abduction.

B) DIFFERENCE BETWEEN ‘KIDNAPPINGS FROM GUARDIANSHIP’ AND

‘ABDUCTION’:-

1) As to Person: –

Kidnapping from lawful guardians is committed only in respect of minors under 16 years of age if male, and under 18 years of age if female, or a person of unsound mind. But abduction can be committed in respect of any person of any age.

2) Removal of Person: –

The person kidnapped is removed from lawful guardianship. However, a child without a guardian cannot be kidnapped. Abduction relates exclusively to the person abducted.

3) Means Used: –

Kidnapping is simply taking away a minor or a person of unsound mind. The means used are not relevant. In abduction, force, compulsion, or deceitful means must be used.

4) Consent: –

In ‘kidnapping’ the consent of the person kidnapped is immaterial. In abduction, consent does not constitute an offence if freely and voluntarily given.

5) Intention: –

In kidnapping from a lawful guardian, the intention of an offender is immaterial to constitute an offence. Whereas, in kidnapping from India, the intention of the offender in abduction is an important factor in determining the guilt of the accused.

6) Type of Offence: –

Kidnapping is a substantive offence. Abduction is not a substantive offence and is not punishable unless done with the intent of committing the other offences.

7) Nature of Offence: –

Kidnapping is not a continuing offence. It is complete as soon as a minor or someone of unsound mind is removed from lawful guardianship.

Abduction is a continuing offence and continues so long as the abducted person is removed from one place to another.

C) Aggravated forms of Kidnapping or Abduction[5] (Ss. 363 A to 369):-

These offences are aggravated because they are punishable severely.

i) Kidnapping or maiming a minor for the purpose of begging: Punishment-

Imprisonment up to 10 years and a fine. (S. 363-A);

ii) Kidnapping or abducting in order to murder: Punishment-imprisonment

for life or rigorous imprisonment for 10 years and fine (S. 364);

iii) Kidnapping or abducting with intent secretly and wrongfully to confine. Punishment- Imprisonment up to 7 years and fine (S. 365);

iv) Kidnapping, abducting or inducing women to compel her to marriage, etc.: Punishment- Imprisonment up to 7 years and fine (S. 366);
v) Procreation of a minor girl below 18 years with intent or knowledge that she will be forced or seduced to illicit intercourse with another person: Punishment- Imprisonment up to 10 years and fine (S. 366-A);
vi) Importation of girl from a foreign country with intent or knowledge that she will be forced or seduced to illicit intercourse with another person: Punishment- Imprisonment up to 10 years and fine (S. 366-B);

vii) Kidnapping or abducting in order to subject a person to grievous hurt, slavery or unnatural lust: Punishment- Imprisonment up to 10 years and fine (S. 367);

viii) Wrongfully concealing or keeping in confinement, kidnapped or abducted person: (S. 368);

ix) Kidnapping or abducting a child below 10 years with the intent to steal from its person: Punishment- Imprisonment up to 7 years and fine (S. 369).

NOTE

Kidnapping or Abducting a Woman to Compel her to Marry or Force her to

Illicit Intercourse (S. 366, S. 366 A, and S. 366 B): –

1) Kidnapping, Abducting, or Inducing a Woman to Compel her

Marriage, etc. (S. 366):-

Whoever kidnaps or abducts any woman with the 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 up to ten years, and shall also be liable to fine; and whoever by means of criminal intimidation as defined in this Code or by 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 also be punishable as aforesaid.

2) Procreation of Minor Girl (S. 366 A):-

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 the intent that such girl maybe, 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 be liable to fine.

3) Importation of Girl from Foreign Country (S. 366-B):-

Whoever imports into India from any country outside India or the State of Jammu and Kashmir, any girl under the age of twenty-one years with the 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 up to ten years, and shall also be liable to fine.

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[1] अपहरण

[2] पळवुन नेणेभाग [भगा ले जाणा]

[3] कायदेशीर पालकांच्या कब्जातून अपहरण करणे. [कानूनी माता-पिता की हिरासत से भगा ले जाणा]

[4] (1965) Cri. L.J.33.

[5] अपहरण अथवा पळऊन नेण्यातील गंभीर स्वरूपाचे गुन्हे. [अपहरण या भगा ले जाने के सम्बन्धी गंभीर अपराध।]