IPC - kidnap and abduction PDF

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kidnap and abduction...

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IPC

ABSTRACT Kidnapping and abduction are dealt under chapter XVI of INDIAN PENAL CODE which deals with offenses affecting human bodies. Since 2005, Indian laws forbid kidnapping and abduction. Kidnapping and abduction poses great threat to the life of the victim and, as well as, endless mental agony to both victim and their family members. Primary reason for the seriousness of this crime is that it leads to various other crimes and most common victims are the children and women. They are neither able to comprehend the situation nor defend themselves Despite the fact, over 100,000 kidnapping and abduction cases have come up in India. People have persisted to take benefit of the sensitive age of minors to kidnap them and abuse and compel them to perform hideous acts. Such crimes are an attack on the independence and liberty of citizens and have to be prevented. Kidnapping has turned into an imperative social and judicial problem throughout the years. In criminal law, kidnapping is the unlawful diverting (asportation) and repression of a person without wanting to. In this way, it is a composite wrongdoing. It can likewise be characterised as false imprisonment by methods for abduction, both of which are separate crimes that when carried out all the while upon a similar person converge as the single wrongdoing of kidnapping. The asportation/abduction component is commonly however not really directed by methods for power or dread. Kidnapping might be done to interest for ransom in return for discharging the victim, or for other illegal purposes. Kidnapping can be joined by substantial damage which hoists the wrongdoing to irritated kidnapping. Abduction is the offence of wrongfully removing or wrongfully retaining, detaining or concealing a kid or infant. Abduction is characterized as taking endlessly a person by influence, by fraud, or by open power or violence. .

INTRO

Kidnapping is the crime of taking away of a person by force, deceit, or threat and detaining that person against their will. While the term “kidnapping” originally referred to the abduction of children (from the word "kid" meaning child) it has come to be used for victims of all ages. There are many aims of kidnappers including the enslavement of their victims, marriage to their victims, and extortion of ransom money. Despite strict laws, serious efforts by law enforcement, and vigorous prosecution, kidnapping continues to be a problem in the world today, particularly in connection with human trafficking in which the victims are often forced into prostitution and other forms sexual abuse. In the terminology of the common law in many jurisdictions, the crime of kidnapping is labeled abduction when the victim is a woman (according to Black's Law Dictionary). In modern usage, kidnapping or abduction of a child is often called child stealing, particularly when done not to collect a ransom, but rather with the intention of keeping the child permanently (often in a case where the child's parents are divorced or legally separated, whereupon the parent who does not have legal custody will commit the act; then also known as "child napping"). "Child abduction" or "child stealing" can refer to children being taken away without their parents' consent, but with the child's consent. Abduction is not an age-specific offence i.e. it may be committed in respect of any person of any age and the person abducted need not necessarily be in keeping of anybody. The offence of abduction shall be complete if the accused takes away the person by deceitful means or by using force with a certain intention. The expression ‘deceitful means’ includes a misleading statement. Also, there should be the actual use of force and not a mere threat to use force . Since our law has defined kidnapping and abduction separately we will acknowledge their ingredients separately. KIDNAPPING Definition by law Section 359 “the crime of kidnapping consists, according to our definition of it, in conveying

a person without his consent or the consent of some person legally authorized to consent on his behalf, or with such consent obtained by deception, out of the protection of the law, or of those whom the law has appointed his guardians.” Kidnapping is on two kind, they are: Kidnapping in India Kidnapping from lawful guardianship Case Law : In Badlu Shah v Emperor it was held that Kidnapping and abduction do not include the offence of wrongful confinement or keeping, in confinement, a kidnapped person. Section 360 : Kidnapping from India

Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India. Essential Ingredients The following are the essential ingredients of the offence under this section: Conveyance of a person: To convey means to carry from one place to another. The conveyance or carrying is a continuous process until the destination is reached. In the case of any offence under this section, the destination must be some foreign territory. Beyond the limits of India: these words in the section indicate that for an offence under it must be to some foreign territory. Without the consent of that person or of some person legally authorized to consent on behalf of that person: A consent given under a misapprehension of fact, is not true consent. Section 361 : Kidnapping from lawful guardianship:

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.

Ingredients1. Taking or Enticing: - the word ‘takes’ means to cause to go, to escort or to get into the possession; it does not imply force, actual or construction. The word ‘entice’ involves an idea of inducement by exciting hope or desire in the order. One does not entice another unless the latter attempted to do a thing which he or she would not otherwise do. This is the key difference between taking and enticing. For example, Persuasion by the accused person which creates willingness on the art of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract to the provision of this section. Moreover, duration is immaterial in this section. 2. A minor or any person of unsound mind: - the person kidnapped must be a minor i.e. a boy under the age of 16 and a girl under the age of 18 or must be a person of unsound mind. The unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic excess or other reason. For example, where a girl aged 20 years had been made unconscious from dhatura poisoning when she was taken away, it was held that accused was not guilty of kidnapping because the girl could not said to be of unsound mind. 3. Out of the keeping of lawful guardian: -the word ‘Keeping’ simply denotes that a minor is within the due care and protection of the guardian. It is not necessary that a minor should be in the physical possession of the guardian. It would be enough if a minor is under a continuance control which is for the first time terminated by the act of offender. moreover, there is difference between legal guardian and lawful guardian. When a father sends his son to school with, here father is a legal guardian and servant or friend is lawful guardian for that matter. 4. Without the consent of such guardian: -The act of taking or inciting a minor to keep him/her out of the custody from guardian should be done with free consent as per the section 90 of IPC. The consent of the minor is irrelevant. The consent can be implied and need not to be express. In addition to that, if a consent is obtained after the commission of an offence so can’t be used as a good defence. Hence, it is immaterial.

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Case Law : In Restated in Biswanath Mallick v. State of Orissa, in this case the court has explained about the Ingredients: This section has four main essentials: Taking or enticing away a minor person or a person of unsound mind. Such minor must be under the age of sixteen years, if male, or under the age of eighteen years, if a female. The taking away or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. Such enticing away must be without the consent of the lawful guardian. In this case Vishnu v. State, the word “keeping‟ implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising and this relation between the minor and the guardian is certainly not dissolved so long as the minor can at

will take advantage of it and place herself within the sphere of its operation. In case of Parkash v. State of Haryana it was said that the two words „takes‟ and „entices‟ as used in Section 361, IPC are intended to be read together so that each takes to some extent its colour and content from the other. If the minor leaves her paternal home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, IPC. Consent given by the guardian after the commission of the offence would not cure it.

Section 363 : Punishment for Kidnapping Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine. The offense under this section is cognizable, bailable, noncompoundable and tribal by a magistrate of the first class.

Oroos Fatima v Sr. Supdt of Police, Aligarh, The person against whom the offence is committed must be under the age of sixteen, if a male, and under the age of eighteen years if a female. Where a girl of 23 years of age left her parents of her own will and married a man, section 363 or 366 was not attracted.

Abduction Abduction means carrying away of a person by fraud or force. According to Section 362 of the Indian Penal Code 1860, abduction takes place when a person by force compels or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offense. It is an auxiliary act not punishable in itself, but when it is accompanied by a certain intention to commit another offense, it per se becomes punishable as an offense. Examples (1) If the intention is to cause secretly or wrongfully a person, section 364 IPC applies; (2) If the intention is that the person abducted maybe murdered or so disposed of as to be put in danger of being murder section 364 of IPC applies.

Essentials 1. Abducting by use of force or any deceitful means: - The abduction should be done by compelling or inducing a person by use of force or deceitful means. The expression force means consent obtain by force or use of force to commit abduction. Whereas, the expression deceitful means includes any misleading statement. The intention of the offender is the deciding element of the offence. 2. Taking of a person from one place to another: - in order to commit the offence of abduction the movement of the abducted person is must and that to be with the use of force or any deceitful means. For example, if A enters the house of a girl B and lifted her in order to take her away, but when B raises alarm A dropped her and ran away, A will not be liable for abduction but he will be guilty for attempt to abduct. Malleshi vs. State of Karnataka (2004)

Facts: One day when Vijay Bhaskar was waiting to board the bus to go back to his house from college, he was called by a man who told him he knew his father. He further inquired about the college’s fees saying he wanted to enroll his son here. He then led Vijay Bhasker to a jeep informing him that his son is there and made him sit in the jeep. Then two other men enquired about his father’s phone number and told him that they want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. Then he runs away as per the advice of the driver. He found out he was in Byrapur village, He informed the villagers who caught hold of the abductors and handed them over to the police. Judgement: The court held that V.S. has been abducted through deceitful means. And it was held that in this case, the demand for ransom had been conveyed to the victim and the offence was completed. The court further said that it cannot be a straight jacket rule that the demand for abduction must always be made to the person who is required to ultimately pay it.

AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION : 1.

Kidnapping or maiming a minor for purposes of begging. (Section 363A of I.P.C)— (1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine. (3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. (4) In this section,— (a) ‘begging’ means— (i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise;

(ii) entering on any private premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;

(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms; (b) ‘minor’ means — (i) in the case of a male, a person under sixteen years of age; and (ii) in the case of a female, a person under eighteen years of age.

Ingredients (1) The person kidnapped is a minor; (2) The Kidnapper is not the lawful guardian; (3) Such kidnapper obtains the custody of the minor; (4) Such kidnapped person is employed or used for purposes of begging; (5) The kidnapper has maimed the minor kidnapped.

The offense under section 363A of the Indian Penal Code is cognizable and non-bailable and non-compoundable and tribal by a magistrate of first class if the punishment is imprisonment for 10 years. If the punishment is imprisonment for life and fine then by Court of session.

2. Kidnapping or abducting in order to murder (Section 364)

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations (a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offense defined in this section. (b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offense defined in this section. Ingredients To invoke Section 364 of the Indian Penal Code following Ingredients are to be satisfied 1) A person kidnaps or abducts another person, 2) the act is done in order that such person may be a) murdered, or b) so disposed of as to be put in danger of being murdered. 3. Kidnapping for ransom, etc (Section 364A) Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

Ingredients The offense has the following ingredients 1) Kidnapping or abducting a person 2) Keeping such person in detention after kidnapping or abduction; 3) (a) Threating to cause death or hurt to that person, or

(b) Give rise to a reasonable apprehension that such person may be put to death or hurt causes hurt or death to such person, 4) Compel a) The Government or b) Any foreign State, or c) Inernational, internal government orgnization or d) Any other persons to do or to abstain from doing any act or pay any ransom.

The offense under this Section is Cognizable, non-bailable, and triable by Court of Session.

4. Kidnapping or abducting with intent secretly and wrongfully to confine person (Section 365) Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The offense under this Section is Cognizable, non-bailable, and triable by Magistrate of the first class.

5. Kidnapping, abducting or inducing woman to compel her marriage, etc (Section 366) Whoever kidnaps or abducts any woman with 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 of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of 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 she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid.

Ingredients 1) A person kidnap or abduct any woman, 2) This Act is done a) with intend that she may be compelled to marry any person against her will, or b) knowing it to be likely that she will be so compelled, or c) in order that she may be forced or seduced to illicit intercourse, or d) Knowing it to be likely that she will be so forced or seduced. The offense under this Section is Cognizable, non-bailable, and triable by Court of Session. 6. Procuration of minor girl procreation of minor girl (Section 366A) 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 intent that such girl may be, 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 also be liable to fine.

Ingredients To invoke Section 366A of the Indian Penal Code following ingredient to be satisfied(1)The accused must have induced a girl (2) The said girl must be below 18 years of age and...