Kidnapping and abduction PDF

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KIDNAPPING AND ABDUCTION KIDNAPPING 

Section 359 states that under the Indian Penal Code, 1860 (IPC) kidnapping is of two types: Kidnapping from India and Kidnapping from Lawful Guardianship. Section 360 defines Kidnapping from India and Section 361 defines Kidnapping from Lawful Guardianship. Section 363 lays down imprisonment of either description for a term which may extend to seven years and fine as punishment for the offence of Kidnapping.

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Section 360 provides for kidnapping from India. It states that 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. o “Beyond the limits of India” means that the offence is complete, the moment a person is taken outside the geographical territory of India. o It is not necessary that the persons should reach their destination in some other foreign territory. o The term “India” is defined in S. 18, IPC as the territory of India excluding the state of Jammu and Kashmir.

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Section 361 provides for kidnapping from lawful guardianship. It 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 of 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 states that ‘lawful guardian’ in this section include any person lawfully entrusted with the care or custody of such minor or other person. It also provides an exception provides 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. o It is equivalent to what is termed as ‘child stealing’ in England. o Essential ingredients are:

i.

Taking or enticing away a minor or a person of unsound mind.

ii.

Minor must be under the age of sixteen years, if a male or under eighteen years, if female.

iii.

Out of the keeping of lawful guardian of such minor or person of unsound mind.

iv.

Without the consent of such guardian.

o Taking and enticing i.

Taking implies no active or constructive force. It means to go, to escort.

ii.

The consent given by a minor or a person of unsound mind is no consent.

iii.

There must be active part played by the accused for ‘taking’ the minor. Simply permitting or allowing a minor to accompany one will not amount to an offence.

iv.

S. Vandarajan v. S.O.Madras:  Girl on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub-registrar’s office where the accused and the girl registered an agreement to marry.  There was no evidence whatsoever that the accused had ‘taken’ her out of the lawful guardianship of her parents.  As there was no active part played by the accused to persuade her to leave the house, it was held that no offence under this section was made out.

v.

S.O. Haryana v. Raja Ram:  Prosecutrix was a girl of 14 years who became friendly with a person called Jai Narain, aged 32, who was a frequent visitor.  When Jai Narain was forbidden by prosecutrix’s father from coming home, he sent messages through Raja Ram.  She was constantly persuaded to leave the house.  One night she went to meet Jai Narain who seduced her.  Jai Narain was convicted under S.376 for rape of minor and Raja Ram under S.366.

 Issue- whether R could be said to have taken the minor girl, since she willfully accompanied him.  SC- held that it was not 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. vi.

Taking away is distinct from ‘allowing’ a minor to accompany.

vii.

The word ‘entice’ connotes the idea of inducement or pursuance by offer of pleasure or some other form of allurement.

viii.

Inducing a minor girl by promise of marriage to leave the house of her guardian

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enticement

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section( Motiram Hazarika v. State of Assam) o Keeping of lawful guardianship i.

In State of Haryana v. Raja Ram, the Supreme Court observed that the word ‘keeping’ in the context, connotes the idea of charge, protection, maintenance and control. It is not necessary that the minor should be under physical possession of the guardian. It suffices for the purpose of the section if it is under a continuous control of the guardian.

ii.

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

o Age of minor i.

It is for the prosecution to prove that the minor at the time of kidnapping was below the age stipulated under the section.

ii.

A person of unsound mind is different from an unconscious (because of poisoning or anesthetic drug) person. Taking away the latter does not amount to kidnapping.

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Section 363 provides punishment for kidnapping which is imprisonment up to 7 years and fine. o In Chandrakala v. Vipin Menon, the SC declined to convict the father, who was accused of kidnapping his minor daughter who was living with her maternal grandfather due to strained relationship between her parents, on the ground that the accused was the natural guardian of the child.

ABDUCTION 

Section 362 defines Abduction and points out that there are two essential elements necessary to complete Abduction, i.e. (a) Compelling an individual by force or inducing by deceitful means and (b) thereby causing such person to go from any place.

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Abduction is not an offence per se but becomes punishable when it is done with an intention to commit another offence.

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Abduction is an offence only if it is done with intent to: o Murder (S.364) o Secretly and wrongfully confining a person ( S. 365) o Induce woman to compel her marriage (S.366) o Subject person to grievous hurt, slavery, etc (S.367) o Steal from a person under ten years( S.369)

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The term ‘by force’ suggests that there should be actual use of force and not a mere show/threat of force.

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The term ‘deceitful’ means misleading a person by making false representations and thereby persuading the person to leave any place.

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Unlike kidnapping, abduction is a continuing offence. The offence of kidnapping is complete the moment a person is removed from India or from the keeping of lawful custody of guardian. But, the offence of abduction is committed as many times as the person is moved from one place to another. o Bahadur Ali v. King Emperor  Kidnapped girl escaped from the kidnappers where she met the accused.

 The accused misrepresented to her that he was a police constable and would take her to the police station.  Instead, he took her to his house, kept her there, demanded a ransom from her mother before he handed her back.  It was held that his act amounted to abduction. o Nanhua Dhimar v. King Emperor- where a woman is passed from hand to hand in several places, each of the persons would be guilty of the offence of abduction.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION 1. In kidnapping, the offence is committed against a minor only whereas abduction may be in respect of a person of any age. 2. A minor’s consent is not relevant for exonerating the accused from liability for Kidnapping. But in case of abduction, the victim’s consent will negate liability. 3. In kidnapping a person is taken out of the keeping of a lawful guardian. However, in abduction no such thing is necessary. It has reference exclusively to the person abducted. 4. In kidnapping, the means used for taking away or enticing are irrelevant whereas in abduction force, compulsion, deceitful means are used. 5. Kidnapping is not a continuing offence. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship. Abduction is a continuing offence and it continues as long as the person abducted is removed from one place to another.

AGGRAVATED FORMS OF KIDNAPPING Section 363A talks about kidnapping or maiming a minor for the purpose of begging and makes it a punishable offence. The punishment may extend to ten years and shall also include fine. Section 364 makes abduction or kidnapping for the purpose of committing murder a penal offence. Under this section it is sufficient to show that abduction/kidnapping was done with the

intention to commit murder. Actual commission of murder is not necessary.

Punishment

prescribed under this section may extend to ten years along with fine. Section 364A penalizes kidnapping for the purpose of ransom with death or life imprisonment and fine. Section 365 prescribes punishment for up to seven years for the offence of kidnapping or abduction with intent to secretly and wrongfully confine a person. Section 366 distinctly deals with the offence of kidnapping, abducting or inducing a woman to compel her marriage and prescribes imprisonment that may extend to ten years and fine. Section 366A penalizes procuring a girl below eighteen years of age with the knowledge that she will be either forced or seduced to illicit intercourse with another person. Imprisonment may extend to ten years along with fine. Section 366B penalizes import of a girl from foreign country with imprisonment extending up to ten years and fine. Section 367 makes it an offence to kidnap or abduct a person with the object of subjecting him/her to grievous hurt, slavery etc. The penalty prescribed under this section is imprisonment for a term that may extend to ten years and fine. Section 368 penalizes a person who wrongfully conceals or confines a kidnapped or abducted person, knowing that such person has been kidnapped. It is to be noted that this section penalizes an aide/accomplice and not the perpetrator. Section 369 penalizes kidnapping or abduction of a child below ten years of age if such kidnapping/abduction is with the intention of stealing movable property from the person of the child. Punishment under this section may extend to seven years along with fine. Sections 370 to 374 penalize buying or disposing of any person as slave, habitual dealing in slaves and unlawful compulsory labour.

The content of sections 370 to 374 has also been reflected in anti-trafficking laws of India. The Immoral Traffic (Prevention) Act, 1956 makes a provision for stringent punishment if kidnapping of a minor or child takes place for the purpose of prostitution....