KIDNAPPING AND ABDUCTION UNDER IPC |IPC Notes|

KIDNAPPING AND ABDUCTION

 

Introduction to Kidnapping and Abduction in Indian Penal Code (IPC)

Kidnapping and abduction are serious offenses under the Indian Penal Code (IPC), primarily addressed to safeguard personal liberty and the sanctity of parental authority over minors. These offenses are categorized based on specific criteria like age, force, deceit, and the intent behind the actions. Sections 359 to 374 of the IPC lay down various provisions for different forms of kidnapping and abduction, establishing clear distinctions between the two. The differentiation stems not only from the acts committed but also from the legal protection accorded to minors and those under lawful guardianship.

This article seeks to explore kidnapping and abduction in depth, examining their legal definitions, elements, and the relevant case laws, including the latest developments in Indian jurisprudence.

Section 359 of the Indian Penal Code (IPC):
Section 359 defines two types of kidnapping:

1. Kidnapping from India (Section 360)
2. Kidnapping from lawful guardianship (Section 361)

 

Section 359 primarily distinguishes kidnapping into these two categories. Both offences are concerned with the unlawful removal of individuals, with specific attention to minors and persons of unsound mind.

Kidnapping from India

Section 360 of the IPC states that 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.

Ingredients of Kidnapping from India: Taking away a person beyond the limits of India. Such act must be done without the consent of the person or without the consent of legally authorised person. The words ‘beyond the limits of India’ means that the moment the person is taken outside the geographical territory of India without its consent, the offence under this section is complete. It is not necessary that the person should reach the destination in some other foreign territory. If the person is arrested before he crosses the Indian border then the offence will not be complete. It may amount to an attempt to commit the offence of kidnapping from India.

Kidnapping from Lawful Guardianship

Section 361 of IPC states that 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 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. Lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.

 Ingredients of Kidnapping from Lawful Guardianship:

• A person takes away another person.
• The person taken is;
  • A minor under 16 years of age, if a male, or
  • A minor under 18 years of age, if a female, or
• A person of unsound mind.
• Such person is taken out of the keeping of his lawful guardian.
• There is no consent by the lawful guardian.

 

Exception to kidnapping from lawful guardianship:

Sec 361 itself provides an exception stating that 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 act is committed for an immoral or unlawful purpose.

CASE LAW

State of Haryana vs Raja Ram (AIR 1973 SC 819)

In this case the co-accused and the victim were in relationship. The age of the victim is 14 years. When the father of the victim prohibited the co-accused to visit the house he started sending messages to the victim through the accused. At the day of crime, the accused took the victim with him and handed her over to the co-accused.

Here the Supreme Court convicted both the accused person and stated that the objectsec 361 of IPC, is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having lawful charge or custody of their minor wards. The Court further stated the word ‘keeping‘ connotes the idea of charge, protection, maintenance and control.

Key Elements of Kidnapping

Age of the Minor

The protection under Section 361 applies strictly to minors: boys under the age of 16 and girls under the age of 18. Any act of taking or enticing them without the consent of the lawful guardian falls within the scope of kidnapping.

Taking and Enticing

The terms “taking” and “enticing” in Section 361 are critical to understanding the offense:

• Taking: Involves any act where the accused physically moves or causes the minor to be moved away from the custody of the guardian.

• Enticing: This involves an element of persuasion or inducement by the accused that results in the minor voluntarily leaving the guardian’s custody.

In the case of Biswanath Mallick v. State of Orissa (1995 Cr LJ 1416), the court reiterated that even if the minor voluntarily goes with the accused, the act of persuasion or inducement can constitute enticing under Section 361.

Vadgama vs The State of Gujarat (AIR 1973 SC 2313)

In this case, the accused was charged for enticing and taking away a girl below 15 years of age from lawful guardianship. Here the accused contended that the girl left her parents’ house out of her own accord due to the harsh treatment of her parents and the accused kept her in his house out of compassion and sympathy for the helpless girl.

Here the Court rejected the argument of accused and convicted him stating that the word “entice” means to involve the idea of inducement or allurement by giving rise to hope or desire in the other. If the minor leaves her parental home, influenced by any promise, offer or inducement emanating from the guilty party then the latter will be guilty of an offence of kidnapping.

 

Lawful Guardian

The term used in sec 361 is lawful guardian and not legal guardian. The term lawful guardian is much more wider and general term than the expression legal guardian. Legal guardians would be parents or guardians appointed by the courts. Lawful guardian would include within its meaning not only legal guardians, but also such person like a teacher, relatives etc who are lawfully entrusted with the care and custody of the minor.

 

Punishment for Kidnapping

Sec 363 of IPC provides punishment for kidnapping. It states 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.

 

 

ABDUCTION

Sec 362 of IPC 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.

Ingredients of Abduction

1. By Force: The act of abduction involves the use of physical force to remove a person from one place to another.

   Illustration: ‘A’ grabs ‘B’ by the arm and drags her away from her house. Here, ‘A’ has abducted ‘B’ by using force.

2. Deceitful Means: Abduction can also occur through deception or false representation.

   Illustration: ‘A’ convinces ‘B’ that her father is sick and takes her to an unknown location. Here, ‘A’ has abducted ‘B’ through deceitful means.

To go from any place

For abduction to take place, the victim must be removed from one place to another, either by force or deception.

In the case of Vinod Chaturvedi v. State (AIR 1984 SC 911), the court clarified that deceitful means should not necessarily involve physical compulsion but can include misleading promises or false statements.

Difference Between Kidnapping and Abduction

Aggravated Forms of Kidnapping and Abduction

The IPC recognizes several aggravated forms of kidnapping and abduction based on the intent and actions of the accused:

Kidnapping or Maiming for Begging (Sec. 363A)

Kidnapping for the purpose of using a minor for begging is punishable under Section 363A. If the kidnapper maims the child for the purpose of begging, the punishment may extend to life imprisonment.

Abducting or Kidnapping to Murder (Sec. 364)

Kidnapping for Ransom (Sec. 364A)

Kidnapping for ransom, particularly when accompanied by threats of murder or serious harm, attracts stringent punishment, including the possibility of the death penalty.

Case Law: Malleshi v. State of Karnataka (2004)
Facts: The accused abducted a young boy for ransom. Upon failure to receive the ransom, the boy was murdered.
Judgment: The Supreme Court upheld the conviction under Section 364A, ruling that kidnapping for ransom, which leads to murder, warrants severe punishment, including the death penalty in extreme cases.

Case Law: Vikram Singh v. Union of India (2015) The Supreme Court reaffirmed that kidnapping for ransom is a serious offense under Section 364A, and the court can impose the death penalty based on the gravity of the crime.

Kidnapping or Abduction with Intent to Secret and Wrongful Confinement (Section 365 IPC)

Anyone who kidnaps or abducts someone with the intent to confine them secretly or wrongfully can be punished with imprisonment for up to 7 years and fine.

Ingredients:

1. The person is kidnapped or abducted.
2. The intention is to secretly and wrongfully confine the victim.

Mens rea: The intent to wrongfully confine the victim is necessary for this section.

Kidnapping or Abduction of Women for Marriage (Sec. 366)

This section deals with kidnapping or abducting a woman with the intent to compel her to marry against her will or to force her into illicit intercourse. Consent of the woman, if she is a minor, is immaterial.

Ingredients

1. The victim must be a woman.
2. The offender must kidnap or abduct her.
3. The intent must be to compel marriage or force her into illicit intercourse.

Mens rea: The intent to compel the woman into marriage or illicit intercourse is essential.

Case Law: Thakorlal D. Vadgama v. State of Gujarat (1973)
Facts: The accused was in a relationship with a minor girl and convinced her to leave her home with promises of marriage.
Judgment: The Supreme Court held the accused guilty under Section 366 as the girl’s consent was irrelevant due to her minority. The court also emphasized that the intent to seduce the girl into an illicit relationship attracted the provisions of Section 366.
Force: The word as given u/s 362 of IPC means the use of actual force and not merely show of force.

Gurucharan Singh vs State of Haryana (AIR 1972 SC 2661)

In this case, the accused threatened the victim with a pistol and took her to his fields outside the village. Here the Court convicted the accused for abduction because there was use of force as required for the offence of abduction.

Deceitful means is misleading a person by making false representation and thereby persuading the person to leave the place.

To Go From Any Place: An essential element of abduction is compelling or inducing a person to go from any place. It need not be only from the from the custody of lawful guardian.

Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. (Section 367)

Section 367 of the IPC deals with kidnapping or abducting a person with the intent to subject them to grievous hurt, slavery, or unnatural lust. It enhances the severity of kidnapping or abduction when the offender intends to cause severe harm or exploitation.

Ingredients of Section 367

• Kidnapping/Abduction
• Intention to cause grievous hurt, slavery, or unnatural lust.

Case Law: Suman Sood v. State of Rajasthan (2007): The Supreme Court upheld the conviction under Section 367, highlighting the offender’s intent to subject the victim to grievous harm.

Wrongfully concealing or keeping in confinement, kidnapped or abducted person (Section 368)

Section 368 of the IPC punishes anyone who wrongfully conceals or keeps a kidnapped or abducted person, knowing they have been kidnapped or abducted. The section applies if the offender either knew or had reason to believe the person was kidnapped or abducted.

Ingredients of Section 368

• Concealment or confinement of a kidnapped or abducted person.
• Knowledge or belief that the person was kidnapped or abducted.

 

Case Law: Jasbir Singh v. State of Haryana (1973): The court convicted the accused under Section 368 for knowingly hiding a kidnapped person.

Kidnapping or abducting child under ten years with intent to steal from its person (Section 369)

Section 369 of the IPC deals with the kidnapping or abduction of a child under 10 years of age with the intent to steal from that child. This section is designed to protect children from being kidnapped or abducted for purposes such as theft, which includes stealing items or money carried by the child.

Ingredients of Section 369

• The victim must be a child under 10 years of age.
• The kidnapping or abduction must be done with intent to steal from the child.

Shamrao Ganpatrao v. State of Maharashtra (1975): The accused was convicted under Section 369 for abducting a child to steal the child’s belongings.

 

 

Abduction is a continuing offence.

 

Bahadur Ali vs King Emperor (AIR 1923 Lah 158)
In this case, 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, he took her to his house, kept her there, demanded and took a ransom of Rs. 600 from her mother, before he handed her back. Here the Court convicted the accused for abduction.

Difference Between Kidnapping and Abduction