Sections 359 to 369 of the Code have made kidnapping and abduction punishable with varying degree of severity according to the nature and gravity of the offence. The underlying object of enacting these provisions is to secure the personal liberty of citizens, to give legal protection to children of tender age from being abducted or seduced for improper purposes and to preserve the rights of parents and guardians over their wards for custody or upbringing.
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.
According to section 359, I.P.C. kidnapping can be classified under two heads,
viz.,
(i) kidnapping from India (Section 360, I.P.C.); and
(ii) kidnapping from lawful guardianship (Section 361, I.P.C.).
Kidnapping under the Code is not confined to child-stealing. It has been given a wider connotation as meaning carrying away of a human being against his or her consent, or against the consent of some person legally authorised to accord consent on behalf of such person.1 It happens in the case where a male is below 16 and if a female is below 18 years or in the case of an insane.
Section 360, I.P.C. defines 'kidnapping from India' and section 363, I.P.C. prescribes punishment for this offence. Section 360, I.P.C. reads:
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.
To attract this section the following two ingredients must be fulfilled:
(i) Conveying of any person beyond the limits of India,
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1. See Kenny's Outlines of Criminal Law, 19th Edn., (1966), p. 204.
(ii) Without the consent of that person, or of some one legally authorized to consent on behalf of that person.
The word 'convey' literally means simply going together on a journey but in popular parlance, it now means carrying a person to his destination. However, mere conveying of a person from one place to another is not criminal. That act becomes criminal if he is conveyed without his consent. A person may be conveyed as much by using force as by inducing him to give his consent by fraud and deception.1
Section 361, I.P.C. makes kidnapping from lawful guardianship of a minor under sixteen years of age, if a male, and under eighteen years of age, if a female, an offence.2 This section provides:
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.
Explanation
The words "lawful guardian" in this section include any person lawfully entrusted with the care or 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.
The provisions of this and subsequent sections under this head are intended more for the protection of the minors and the persons of unsound mind themselves than for the right of the guardians of such a persons. It may be that the mischief intended to be punished may partly consists, in the violation of infringement of the guardians right to keep their wards under their care and custody, but more important object is to afford security and protection to the wards themselves against seduction or abduction for improper purposes; State v. Harbans Singh Kishan, AIR 1954 Bom 399.
The following are the essentials of this offence:--
(1) The offence is committed by "taking" or "enticing" of a minor person or a person of unsound mind.
(2) The person kidnapped must be:
(a) under the age of 16, male or
(b) Under the age of 18, if female, or
(c) a person of unsound mind.
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1. See section 90, IPC which defines 'Consent'.
2. Before 1949 the prescribed age for minor male was 14 and for female 16 years.
(3) The "taking" or "enticing" must be out of the keeping of lawful guardian of such minor or person of unsound mind.
(4) The "taking" or "enticing" must also be without the consent the guardian.
(5) The consent of the minor is immaterial.
The motive of the kidnapper is immaterial, unless it falls within the exception to the section.
Besides, its essential ingredients, the courts have formulated certain guiding principles:
(1) In case of minor girls this section is attracted irrespective of the question whether she is married or unmarried; State of Himachal Pradesh v. M. Kala, AIR 1957-HP 42.
(2) Consent of the minor is immaterial; State of Haryana v. Raja Ram, MANU/SC/0262/1972 : AIR 1973 SC 819.
(3) The motive or intention of the kidnapper is also immaterial; State v. Sulekh Chand, AIR 1964 Punj 83.
(4) If the kidnapped girl turns out to be under 18 years of age, the kidnapper must take the consequences, even though he bona fidely believed and had reasonable ground for believing that she was over eighteen; R. v. Prince, 1875 LR 2 CCR 154.
The word 'takes' means cause to go, to escort or to get into possession and the word 'entice' involves an idea of inducement by exciting hope or desire in the other.
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. The words 'takes' or 'entice' any minor '.....out of the keeping of the lawful guardian of such minor' in section 361 are significant. On a plain reading of this section the consent of the minor, who is taken, or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. 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; State of Haryana v. Raja Ram, MANU/SC/0262/1972 : AIR 1973 SC 819.
The word 'takes' does not necessarily connote taking by force, and it is not confined only to use of force, actual or constructive. It merely means to cause to go, to escort or to get into possession. The mental attitude of the minor is not relevant in the course of taking. Thus where the accused took the minor with him whether she was willing or not, the act of taking was complete and it amounted to taking out of the father's custody within the meaning of this section; Khalandar Saheb (in re:), 1955 Cr LJ 581.
The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or may create continuous and gradual but imperceptible impression culminating after
sometime. Thus, if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offences as defined in section 361, IPC; Sayyad Abdul Satar v. Emperor, MANU/TN/0212/1928 : AIR 1928 Mad 588.
"Taking' is a question of fact: In Jeevan v. Rex, MANU/OR/0002/1948 : AIR 1949 Ori 22 it was held that the offence tinder this section is complete when the minor is actually taken from the lawful guardianship and the offence is a continuing one until the minor's return to his guardian. It has been observed "it cannot be maintained that taking which is request to kidnapping must be constituted by a single act. A whole series of act might together constitute the process of taking and when actually the taking is complete and in what sense the kidnapping has been committed is question of fact. It is unnecessary to specify when the taking started and where it was completed provided we are satisfied that on the evidence in this case there has been taking of the girl by the accused from the keeping of her guardian."
"Keeping" means within the protection or care of the guardian. A minor is said to be in the keeping of a person where he depends upon him for his or her maintenance, support or sustenance. It is not necessary that the minor should in the physical possession of the guardian. It would be sufficient if he is under a continuous control which is for the first time terminated by the act of the accused.
The word 'lawful' is important and must be distinguished from the term 'legal', which means something different.
In Fatti (Mst.) v. Emperor, (1911) 12 Cr LJ 211 it was observed that, a lawful guardian is a guardian whose custody is sanctioned by law. A legal guardian is necessarily a lawful guardian, but not necessarily vice versa. For example, a school master or an employer is a lawful guardian and a parent of the minor is a legal guardian. The expression lawful guardian would include a natural guardian, a testamentary guardian appointed by the court, and a person lawfully entrusted with the care and custody of a minor. The guardian is described in this section as a lawful guardian and not as a legal guardian.
A lawful guardian cannot include a person who obtains the care or custody of the minor by illegal or unlawful means. If the minor or lunatic is in the custody of the legal guardian, and he or she is taken or enticed out of the custody of such legal guardian, it would obviously be a case of kidnapping; State v. Haxbansing Kisansingh, MANU/MH/0098/1954 : AIR 1954 Bom 339. If the legal guardian entrusts in a formal way the ward to the care of another person, such other person would also be his lawful guardian, and in case the ward is removed from his custody without his consent, the offence would be one of kidnapping.
The words lawful guardian do not necessarily imply that the minor must have been entrusted to such person by someone having a legal duty or obligation to the minor, but it is sufficient that such entrustment is done without illegality by one legally competent to do so; Mussammat Kesar v. K.E., AIR 1919 Pat 27. When a minor is in the keeping of the lawful guardian, the mere fact that a minor leaves the protection of her guardian, does not take her act out of the guardian's keeping.
But where she abandons her guardian with no intention of returning, she cannot be said to be in her guardian's keeping; R.W. Valliant v. Elazor, (1924) 30 CWM 215.
Abduction in common language means the carrying away of a person by fraud or force; Vishwanathv. State of Uttar Pradesh, AIR 1960SC 67.Section 362, I.P.C. 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.
According to the section 362, I.P.C. abduction takes place when any person by force compels, or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself, but when it is accompanied by a certain intention to commit another offence, it per se becomes punishable as an offence. For instance:
(a) If the intention is that the person abducted may be murdered or so disposed of as to be put in danger of being murdered, section 364, I.P.C. applies;
(b) If the intention is to confine secretly or wrongfully a person, section 365, I.P.C. applies;
(c) if the abducted person is a woman and the intention is that she may be compelled, or is likely to be compelled, to marry any person against her will, or may be forced or seduced to illicit intercourse, or is likely to be so forced or seduced, section 366, I.P.C. applies;
(d) If the intention is to cause grievous hurt, or to dispose of the person abducted as to put him in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, section 367, I.P.C. applies;
(e) If the abducted person is a child under the age of ten years and the intention is to take dishonestly any movable property from its person, section 369, I.P.C. applies.
When no force or deceit is practised on the person abducted, there can be no offence of abduction. For instance, if a minor girl voluntarily goes out of her guardian's protection and meets a person, who treats her well with no compulsion or fraud, such person will not be guilty of abduction; Arusami Gaundan (in re:), MANU/TN/0185/1959 : AIR 1959 Mad 274. Nor can any offence be committed when the woman is a willing party. In view of the definition embodied in section 362, I.P.C. the word 'force' used therein connotes the actual force and not merely a show or threat of force. It would be an offence to carry away a grown-up woman by force against her own will even with the object of restoring her to her husband; AIlu v. Emperor, AIR 1925 Lah 512.
The expression 'deceitful', as used here, has wide connotation to include inducing a girl to leave her guardian's house on a pretext. It also implies the use of misrepresentation by act or conduct.
Abduction is a continuing offence and a person is liable not only when a person is first moved from one place to another, but all those who are involved in subsequently moving that person to other place are also liable.
Though, in common language words 'kidnapping' and 'abduction' are used in a similar sense. However, both the words are differently used in law. In the Indian Penal Code we have seen that there are two distinct provisions provided. Let us discuss some of the important distinguishing features of these two expressions in tabular form.
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Kidnapping (from Lawful Guardianship) (section 361, I.P.C.) |
Abduction (section 362, I.P.C) |
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1. Kidnapping from lawful guardianship as defined in section 361 is committed, (i) in respect of minors, if male under 16 and if a female under 18 years of age, and (ii) in respect of a person of unsound mind (of any age). |
1. Abduction may take place against a person of any age. Likewise, kidnapping from India as discussed in section 360, I.P.C. can take in respect of any person irrespective of his or her age. |
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2. Kidnapping is the removal of a person from lawful guardianship. |
2. Abduction has reference only to the person abducted. |
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3. Kidnapping is simply taking away of a minor or a person of unsound mind. The means used are not relevant. |
3. In abduction, force, compulsion, or deceitful means are used. |
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4. Consent of person kidnapped is immaterial. |
4. Free and voluntary consent of the person abducted condones abduction. |
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5. Intention of the kidnapper is immaterial for the offence. |
5. Intention of the abductor is an important factor in determining guilt of the accused. |
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6. Kidnapping is a substantive offence. |
6. Abduction is not a substantive offence and is not punishable in itself. It is an offence only when done with some other intent as given in sections 363A, 364, 364A to 369, I.P.C. |
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7. Kidnapping is not a continuing offence. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship. |
7. Abduction is a continuing offence and continues so long as the abducted person is removed from one place to another. |
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8. In kidnapping there must be taking or enticing from a lawful guardian. |
8. In abduction the question of taking or enticing does not arise. |
Section 363, I.P.C. provides punishment for the offence of kidnapping from India and from lawful guardian as defined under sections 360 and 361, I.P.C. respectively. Section 363, I.P.C. reads:
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.
According to this section, when 'A' kidnaps any person 'B' either from 'India' or from 'lawful guardianship' shall be punished with imprisonment which may extend to 7 years and shall also be liable to fine.
In Prakash v. State of Haryana, MANU/SC/0986/2003 : (2004) 1 SCC 339 the fact was, the victim was taken away by the accused appellant who was known to her for fulfilling his lust and her absence was noticed by her octogenarian grandmother. She went out in search of her. After going a short distance she could here the cries of the victim and rushed to the house of the accused from where her sound was coming. She found the victim naked and the accused appellant lying on top of her. The father of the victim lodged the report on learning about the incident from the victim and her grandmother.
Issue:
Does the conduct of the accused amounts to kidnapping within the meaning of section 361, I.P.C.?
Decision:
It was observed by the Supreme Court that, the object of this section 361, I.P.C. seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge of custody of their minor wards. The graveness of this offence lies in taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor.... out of the keeping of the lawful guardian of such minor" in section 361 are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
With the above observations, the apex Court held that the conduct of the accused amounts to kidnapping within the meaning of section 361, I.P.C.
In S. Vardarajan v. State, MANU/SC/0081/1964 : AIR 1965 SC 942 the fact was, Savitri was a girl under 18 years of age. She was living with her father studying B.Sc. in Madras.
On hearing that Savitri wanted to marry Vardarajan the accused, who was their immediate neighbour, her father took her to the house of a relation and left there so that for some time she was to kept as far away from the accused as possible.
On the next day, however, Savitri telephoned the accused and asked him to meet her at a certain place which he did. They then went to a shop to buy Mangalayam, took two witnesses and went to the registrar's office for getting the marriage registered. Afterwards the couple went and stayed in a hotel for a day and later went around the places.
Issue:
The question was whether the accused had taken away the girl from the lawful guardian within the meaning of section 361.
The Supreme Court held:
Whether a minor girl having the capacity to know the full import of what she was doing voluntarily leaves her father's protection and joins another protection, it cannot be said that she had been taken away from the keeping of the lawful guardian. Some thing more has to be shown in a case of this kind as for e.g., some kind of inducement held out by the accused or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would be sufficient if the prosecution establishes that though immediately prior to the minor leaving of father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of these things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she had actually left her guardian's house or a house where her guardian has joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. It may be that the part played by the accused in such a case facilitated the fulfilment of the intention of the girl. The part falls short of an inducement to the minor to step out of the keeping of her lawful guardian and therefore does not tantamount to "taking away".
In the instant case the girl was born on Nov. 13, 1942 and she left her father's house on Oct. 1, 1960. She was therefore a little short of reaching 18 years.
Though she was in the house of her relative, she was still in the lawful keeping of the father. Even so there was no word on the deposition of Savitri that she left the house at the instance or even the suggestion of the accused. She admitted that she herself had telephoned to the appellant to meet her at a certain place and did meet him. It was her decision to marry him. There was no suggestion that the accused had used any force to take her to the Registrar's office for getting the marriage registered. The insistence for marriage came from her and by complying with her wishes he could not be said to have taken her out of the keeping of her lawful guardian. She attained the age of discretion and was on the verge of attaining majority. Here action had all along been consistent, there is nothing to hold that the accused had been guilty of taking her away out of the keeping of her father.
When she willingly accompanied him the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a girl of tender years who was unable to think for herself. She was an educated girl who had lived all her life in a city.
In State of Haryana v. Raja Ram, (1974) 2 SCR 728 the fact of the case was:
In the course of his visits to the house of the prosecutrix's father to render medical aid, Jai Narain, a quack of the village was attracted towards the girl. He persuaded her to accompany him, promising to give her good cloths, food and everything that she wanted. This girl's father noticed his behaviour and asked the accused who lived in the same street as the girl, to persuade and bring her to a pre-arranged place that night.
The accused who sent his daughter, a friend of the girl, to fetch her to his house so that he could take her to Jai Narain and hand over to him. He did according to the pre-arranged plan.
The trial court convicted both the accused under section 366. The High Court maintained the conviction against Jai Narain but acquitted the accused in this case on the ground that the girl left the house on her free will; the accused did not himself take any part in fetching her and that, therefore, she was neither induced nor taken by the accused from the lawful guardianship of her parents.
The Supreme Court Held:
The subject of section 361 seems as much to protect the minor children from being seduced for improper purposes as to protect the right and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of lawful guardian of such minor" in section 361 are significant. The use of the word "keeping in the context connotes the idea of charge, protection, maintenance and control. Further the guardian's charge and control appears to be compatible with the independence of section and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On the plain reading of his section the consent of the minor who is taken or enticing is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
In the instant case, the facts are Jai Narain had become intimate with the girl and tried to seduce her. The accused induced her to go with him the pre-arranged place pursuant to that plan he sent his daughter to fetch her to his house. He actually took her that night and handed her over to Jai Narain. All these facts convincingly establish his hand in the act. He cannot escape the conviction of the offence of kidnapping the girl from her father's lawful guardianship. It is not at all necessary for him to have himself gone to the house of the girl to bring her from there. It was sufficient if he had earlier solicited or persuaded her to leave her father's house. The action of the accused was the proximate cause of the girl's going out of her father's keeping. But for his permission she would not have gone out of the house. He actively participated in the formation of her intention to leave the house. Her consent or willingness to accompany the accused would be immaterial and it would have been equally so even if the proposal to go with him had emanated from her.
that her parents wants to marry her with a man whom she does not tike and would like to marry him (the music teacher) instead. (This was a welcome news for S who had strong love for her but had felt shy to express it). T persuaded S to take the plunge (get married) the next day in a temple. Next day, she went to $'s house instead of going to school from where they went to temple. However, they were caught by the parents of the girl (who were informed by someone) before any ceremony of marriage could take place. Can S be held guilty for any offence?
In Murugan v. State of Tamil Nadu, MANU/SC/0566/2011 : AIR 2011 SC 1691, this case the appellant kidnapped a minor girl from her school intention to marry her after giving false information about illness of her mother to her school teacher. A letter written by prosecutrix to police officer where she mentioned that she had love affair with accused and her hospital age was 17 years. Birth certification issued by Municipality shows age about 14 years. Entries of school register and evidence of mother of prosecutrix deposed that prosecutrix was 14 years of age. Evidence showed that prosecutrix was not major on date of incident. High Court had disposed appeals preferred by the appellants against the judgment and order of Trial Court by which appellant had been convicted under section 366 and 376, IPC and awarded the sentence of rigorous imprisonment for 3 and 7 years. Supreme Court upheld the judgment.
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