The criminal conducts regarding hurt, murder, culpable homicide, grievous hurt, kidnapping, abduction, wrongful confinement, etc are the offences affecting the human body and life. These offences affect not only the life of an individual but also, the society at large. Hence, it becomes very important that punishment is given to the offenders. The Indian Criminal Law has made provisions regarding the offences affecting the human body or offences affecting life. The object of these provisions is to secure the liberty of the citizens and preserve the rights of people. This article explores the meaning and provisions of kidnapping and its punishment.
Kidnapping refers to taking away a person against the will of the person. A person can be kidnapped by use of force, deceit and threat. The term ‘kidnapping’ has not been defined by the Indian Penal Code, 1860. Chapter XVI of the Indian Penal Code, 1860 consist of offences affecting the human body and offences affecting life. Section 359 to 361and 363 to 369 of the Indian Penal Code, 1860 are provisions relating to kidnapping.
Kinds of Kidnapping
Section 359 states the two kinds of kidnapping. The two kinds of Kidnapping are as follows:
Kidnapping from India
Section 360 states the meaning of kidnapping from India. If a person takes any person beyond the limits of India without the consent of that person or without a person legally authorized to give consent on behalf of that person, then it is said that person has kidnapped that person from India.
The age of consent for boys is sixteen and the age of consent for girls is eighteen.
Kidnapping from lawful guardianship
Section 361 states the meaning of kidnapping from lawful guardianship. This section aims at the protection of children, a person of unsound mind, parents and lawful guardians. The essentials of Section 361 are:
Taking away or enticing any minor or any person of unsound mind
The term ‘takes’ means ‘to cause to go’. It implies that there is an absence of desire of the person who is taken away. The term ‘enticing’ refers to inducing or alluring someone by exciting hope or desire in a person.
The male who is taken away should be under sixteen years and the female who is taken away should be under eighteen years.
If a boy or girl is kidnapped, the person kidnapping cannot take the defence that he was not aware of the age of the boy or girl.
Such minor or person of unsound mind should be taken away from the custody of a lawful guardian.
The term ‘lawful guardian’ has been given in the explanation of the Section. Lawful Guardian includes any person lawfully entrusted with care or custody of such minor or another person.
The taking away of a person of unsound mind or minor should be without the consent of a lawful guardian.
The offence of kidnapping is complete when the minor is taken from lawful guardianship without the consent of a lawful guardian.
The section does not extend to any person acting in good faith and believes that he is the father of an illegitimate child or believes that he is the lawful guardian.
Other forms of Kidnapping
The various forms of kidnapping are provided under Section 363 A to 369 of the Indian Penal Code, 1860. The various forms of kidnapping are as follows:
- Kidnapping a minor for begging (Section 363 A) – the punishment of imprisonment for a term that may extend to ten years and fine.
- Kidnapping to murder (Section 364) – the punishment of imprisonment for life or rigorous imprisonment for a term that may extend to ten years and also fine.
- Kidnapping for ransom (Section 364 A) – the punishment of death or imprisonment for life and fine.
- Kidnapping with intent secretly and wrongfully to confine person (Section 365) – the punishment of imprisonment for a term that may extend to seven years and fine.
- Kidnapping woman to compel her marriage (Section 366) – the punishment of imprisonment for a term that may extend to ten years and fine.
- Procuration of minor girl (Section 366 A) – the punishment of imprisonment that may extend to ten years and fine.
- Importation of girl from a foreign country (Section 366 B) – the punishment of imprisonment that may extend to ten years and fine.
- Kidnapping to subject a person to grievous hurt, slavery, etc (Section 367) –the punishment of imprisonment for a term that may extend to ten years and fine.
- Wrongfully concealing or keeping in confinement the kidnapped person (Section 368) – punishment in the same manner as if he has kidnapped such person.
- Kidnapping child under ten years with the intent to steal from its person (Section 369) – the punishment of imprisonment that may extend to seven years and fine.
These sections are applicable for abduction also.
PUNISHMENT FOR KIDNAPPING
Section 363 of Indian Penal Code, 1860 states the punishment for kidnapping. Anyone who kidnaps any person from India or lawful guardianship shall be punished with imprisonment for a term that may extend to seven years and fine.
State of Haryana v. Rajaram1
In this case, a person ‘J’ tried to seduce a girl of 14 years of age to come and live with him. When the girl’s father forbade ‘J’ from coming to the house, he started sending messages to the girl through the respondent. The respondent took the girl to ‘J’. The Court held the respondent guilty under Section 361. The Supreme Court observed that the object of Section 361 is to protect the minor children from being seduced for improper purposes. The words ‘takes or entices any minor’ in Section 361 are significant.
Vipin Menon v. the State of Karnataka2
The court held that the father cannot be held guilty of kidnapping his minor child.
Biswanath Mallick v. the State of Orissa3
A girl was kidnapped by Biswanath when she had gone out at night. The court stated the difference between ‘entice’ and ‘taking’ under Section 361. The word ‘entice’ involves the idea of inducement or alluring the person by exciting hope and the word ‘taking’ involves the absence of desire of the person.
Kidnapping is a very dangerous act that affects the liberty of a person. The provisions of kidnapping as provided by the Indian Penal Code, 1860 provides for the protection of children, unsound persons and other persons. Hence, these provisions are of great importance.
1 1973 A.I.R. 819
2 1992 Cr L J 3737
3 1995 Cr L J 1416
- Ratanlal & Dhirajlal: The Indian Penal Code (PB) 36th Edition, Lexis Nexis, 2020
- N. Mishra: The Indian Penal Code, Nineteenth Edition, Central Law Publications, 2014
This blog is written by Jyotsna Singh, Banasthali Vidyapith
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