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PURSUABLENESS OF DEFRACTION AND RETENTION

TABLE OF CONTENTS:

Introduction
Kidnapping
Abduction
Aggravated forms of kidnapping and abduction
Distinction between Kidnapping and Abduction
Conclusion
Bibliography

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ABSTRACT
This project deals with Kidnapping and Abduction. The crime of unlawfully seizing and
carrying away a person by force or Fraud, or seizing and detaining a person against his or her
will with intent to carry that person away at a later time is called kidnapping. It is difficult to
define kidnapping accurately because it varies from jurisdiction to jurisdiction. IPC defines two
kinds of kidnapping, one is kidnapping from India and another one is kidnapping from lawful
guardianship. The ten conditions of kidnapping which are defined under IPC will be explained in
this project. What is the punishment given to a person if he commits this offence will be clearly
explained in the project. Abduction is defined under IPC as Whoever by force compels, or by
any deceitful means induces, any person to go from any place, is said to abduct that person. The
ingredients which are essential for the commission of the offence abduction will be clearly
explained in the project. This project also clearly explains all the aggravated forms of kidnapping
and abduction and all the sections of IPC dealing with kidnapping and abduction. The meaning
of kidnapping in the local language includes abduction as synonym but the real difference
between them will be clearly explained in the project. This project draws the clear picture of
what is kidnapping, what is abduction and the distinction between kidnapping and abduction
with the help of related provisions under IPC and with the help of case laws and well published
law articles.

AIMS & OBJECTIVES OF THE STUDY

Over the course of this project the researcher aims to analyze and interpret the legal
concept of kidnapping and abduction.

SIGNIFICANCE & BENEFIT OF THE STUDY

The main significance of the project is that it draws a clear picture about Kidnapping and
Abduction under the IPC provisions and with the related case laws.

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SCOPE OF THE STUDY

The study will be focused on the Kidnapping and Abduction under the application of IPC.
The researcher formulated the scope and limitations of the study to identify the boundaries of
this study. Scope and limitation of the project will be under IPC and it also undergoes the
application of criminal law.

RESEARCH METHODOLOGY
The process used to collect information and data for the purpose of making decisions.
The methodology may include publication research, surveys and other research techniques, and
could include both present and historical information. In this project the researcher is using
doctrinal type methodology.

RESEARCH QUESTIONS

What is kidnapping and what are the different forms of kidnapping under IPC?
What is abduction and what are the different forms of abduction under IPC?
What is the difference between Kidnapping and Abduction?
What are the punishments for kidnapping and abduction under IPC?

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INTRODUCTION:
Section 359 to 369 of the Indian Penal 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.
According to Blacks law dictionary at common law kidnapping means the forcible
abduction or stealing away of a person from own country to another. 1 In America to constitute
an offence of kidnapping it is only necessary that there is deprivation of liberty and carrying
away from the place where the victim was there.
Persons are kidnapped & abducted by criminals for various reasons and intentions viz. for
adoption, begging, camel racing, illicit intercourse, marriage, prostitution, ransom, revenge, sale,
selling body parts, slavery, unlawful activity, murder and for other purposes. Kidnapping is an
offense related to children, whereas in abduction age of the victim is immaterial. Kidnapping for
Ransom is a crime that has been utilized as a tactic by a vast array of criminal and terrorist
organizations for centuries.
If a person who is a natural guardian of the child takes away the child without the consent of the
lawful guardian it doesnot amount to kidnapping unless it the same was prohibited by the court.
The same was given by the court in Ashok Kumar Seth v. State of Orissa.

1 http://thelawdictionary.org/kidnapping/,29/09/2016,4:00pm

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KIDNAPPING:
The literal meaning of kidnapping is child stealing. The word kidnapping is derived from
the Dutch word kid means child and nap which means to steal.
In Section 359 of the IPC it is explained that Kidnapping is of two kinds: kidnapping from India
and kidnapping from lawful guardianship.
In this section it is given that there are two kinds of kidnapping but there is a chance of
overlapping between the two i.e., for example A may kidnap B a minor boy of 13 yearsfrom
India who was under the guardianship of his uncle X.

Kidnapping when completes:

Kidnapping is not a continuing offence and it is completed as soon as a child is taken
away from the custody of the lawful guardian and it shall not continue till he returns back to his
lawful guardian.
In Damodar v. State of Rajasthan2 case the accused kidnapped Bachi a minor girl of 10
years age from her house on 18th July, 1950 on allurement give her to ladoos and puris if she
accompanied him. Two days he confined her in his house and took her along with his daughter to
Chandera and tried to sell her for marriage. Sheonath who was another accused in this case was
later called to Chandera and he joined Damodar. The girls father lodged a report after 20 days of
its occurrence at the police station of Ramganj and she was recovered by the police on 7 th
September. The trail court convicted both the accused under section 366 of IPC. The two accused
made two different appeals. The appeal of Damodar was dismissed. The appeal of Sheonath was
allowed and he was acquitted on the ground that he was not part of kidnapping he joined him on
the way. The offence was completed when the person has taken the girl out of his fathers
custody and it is not a continuing one.

2 AIR 1953 Raj 127

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In Jeewan v. Rex3casethe accused Jeewan and Mukhram have taken forcefully Shanti
from her house and Baru another accused joined them in the way and Jeewan then returned back
to the village. They have taken her to their village and village people held a Panchayat and they
called her father the next morning. After discussing the matter they finally sent Mukhram, Baru
and Shanti to the police station. Shanti lodged a report on the incident. The medical reports
proved that she was used to sexual intercourse and there are no sign of injury on her private parts
and therefore it is clear that Shanti was an immoral girl. There is also nothing to show that it is
against her will and in the period she was in their custody she did not try to escape from their
custody. The trail court sentenced Mukhram, Baru and Jeewan with 5 years of punishment for
each. As kidnapping is not a continuing offence there is no evidence to show that Baru knows
that Shanti was a kidnapped girl and the court acquitted him. The court held that the offence
committed by Jeewan and Mukhram comes under section 363 of IPC and they did not find any
intention which is necessary under section 366 of IPC under which they were sentenced. The
court allowed the appeals Jeewan and Mukhram and altered their conviction from section 366 to
363 of IPC and reduced their sentence from five years to two years.

Consent and Movement of the victim:

In Section 360 of the IPC it is explained 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.
In this section it is clearly given that the offence may be committed on a grown up person or a
minor by carrying away the person beyond the territory of India.This section requires two
ingredients. One is carrying away any person from the territory of India and the second one is
that taking away is without the consent of the person.4
The word convey in this section means taking a person to his destination and the offence is
complete when he reaches his destination and not only any foreign territory. The taking away of
a person itself is not criminal unless it is against the consent of the person.
31949 CriLJ 884
4 K. D. Gaur, Indian Penal Code, 5th edition, 2016, Universal law publishing, pg no 661

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Model Penal Code's approach suggests that the essential issue is whether the victim is kept in
substantial isolation from his normal environment; a requirement which the Code indicates can
be satisfied by either substantial time or asportation
Section 361 of IPC speaks mainly about the consent of the guardian. If the girl comes out of her
guardians supervision with her will without anything done on part of the other person then he
cannot be made liable for kidnapping.
This section clearly lays down that it is an offence even if the accused in good faith believed the
girl to be of 18 years of age. A girl cannot be necessarily in the physical possession of the
guardian. It is enough to show that she is under his continuous control. Only when she leaves the
guardian with no intention to return back to him on her own will then she can be said to be not in
the guardians protection.
Even if the person taking away the girl obtains the consent of the guardian but he obtains the
consent though fraudulent or misrepresentation it amounts to kidnapping
Prakash vs. State of Haryana5
In this case the accused called and took the girl out of the lawful possession of the childs parents
to some other house which was nearby the house of the victim and raped with her brutally and in
an inhumane way.
The girl child was of only of 5 yrs. of age at the time of the commission of the crime by the
defendant. He was charged under section 361 of IPC read with section 363 and 368 of IPC
The court has clearly interpreted that for the motion of the section on kidnapping in the Indian
penal code the basic thing which is required to be proved is that the defendant has taken the
plaintiff out of the lawful possession of the guardian without his/her consent. The distinction
between the terms of the provision has been clearly understood by the court in the present case.
The accused was made liable for the same in this case.

Age limit and Guardianship:

5 2004 CRI.L.J 595

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The age limit for giving consent under Act XLII of 1949 is 16 years for boys and 18 years
for girls.
In Section 361 of the IPC it is explained 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.6
The lawful guardianship includes any person who was lawfully given the duty to take care or
custody of a minor or other person and this section is not applicable to that person who in good
faith believes that he is the father of an illegitimate child or was allowed for lawful custody of
the child unless he is doing the act for an immoral or unlawful purpose.
This section talks about only the offences committed against a minor or an unsound mind person.
The essentials to be fulfilled under this section are
a) Taking or enticing away a minor or a person of unsound mind.
In S. Varadarajan v. State of Madras7 case S who is a minor girl less than 18 years
have groswn up some infatuation towards the accused staying in the neighbour house and her
elder sister came to know about this and she told her sister that he wants to marry him. Her father
who was a high ranking officer in Madras sent her to their relatives house. She contacted the
accused from there and they met at a place and they made a contract to marry each other and it
was registered. Then they moved from one place to another. The Supreme Court held that he was
not liable for kidnapping because he has done nothing which made the girl to leave her home. He
just helped her to stay away from her guardians house.
b) The age limit for such a minor is 16 years for boys and 18 years for girls.

6 Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 34th Edition
Edition) 2014, pg. 822

7 AIR 1965 SC 942

(Reprint 2014

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R v Prince8
The defendant who ran off with an under-age girl and he was charged with an offense under s55
of the Offences Against the Person Act 1861 for the offence of taking a girl under the age of 16
out of the possession of her parents. The defendant knew that the girl was in the custody of her
father but he believed on reasonable grounds that the girl was aged 18. It was held that
knowledge that the girl was under the age of 16 was not required in order to establish the
offence. It was sufficient to show that the defendant intended to take the girl out of the
possession of her father and he was made liable.
R v Hibbert9
The defendant met a girl under sixteen years of age in a street . He induced her to go with him to
a place at some distance and there he seduced her and detained her for some hours. He then took
her back to the place where he met her and she returned home to her father. The defendant was
charged under s55 Offences Against the Person Act 1861. It was held that in the absence of any
evidence that the defendant knew or that he believed that the girl was under the care of her father
at the time the time of commission of the offense the conviction under s55 Offences Against the
Person Act 1861 could not be sustained.
c) That taking or enticing must be out of the keeping of the lawful guardian
Baldeos case10
The accused met a girl aged about 14 years who was living with a Brahmin woman in Sarai
village. There they maintained themselves on begging. Ghasi who was a gold smith persuaded
the girl to marry his son. But they did not give her sufficient food to eat. By the persuasion of the
accused she left the Ghasis house and went along with him. He was charged for the same. The
8 (1875) LR 2 CCR 154.

9 (1869) LR 1 CCR 184.

10 (1870) 2 NWPH Cr 286

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trail court convicted him and the High Court quashed his conviction and held that she was not
abducted from his lawful guardian as he was not lawfully entrusted the care and custody of the
girl and he was not made liable to kidnapping.
d) That taking or enticing must be done without the consent of the lawful guardian.
In Ashok Kumar Seth v. State of Orissa11case the accused forcibly entered into the house of his
father in law and had taken away his child from the custody of his wife. The trail court held him
liable under sections 363 and 452 of IPC. The accused made an appeal against this and however
prima facie established that he was liable under section 452 of IPC for house trespass. Under the
provisions of Hindu Minority and Guardianship Act, 1956 father is the natural guardian of the
child and unless the court prohibits the father from the custody of the children he cannot be
charged for the offence under section 363 of IPC. In this case he was not prohibited by the court
to take the custody of his child so he cannot be made liable for kidnapping.
This section explains that the taking away of the girl may not include actual or constructive force
and that mere proof that the accused has done something which made the girl to leave her
guardian irrespective of the consent of the girl.
Under the Hindu law the father and mother are the absolute guardians of the minor child and if
the couple have taken divorce and if the court has ordered the mother to take care of the minor
child and if father takes away the child forcibly it also amounts to kidnapping.
Under the Mohammadan law mother is entitled to the custody of male child until he attains the
age of seven years and of female child until she attains puberty if she does not remarry after the
divorce. If both mother and father are not alive the custody of children is given to the relatives of
the wife. In the absence of natural guardians the judge will delegate the custody to their relatives.
A person who is kidnapped is of sound mind and is made unconscious by poisoning he cannot be
called as a person of unsound mind.

11 2003 CrLJ 642 (Ori)

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When a person kidnaps a child in good faith believing himself to be entitled of the lawful
custody of the childwithout any unlawful or immoral purpose he is said to have committed no
offence. Kidnapping under common law is similar to that of the Indian laws.

Punishment for kidnapping:

In Section 363 of IPC it is explained that what the punishment is for a person who
kidnaps a person from India or from lawful guardianship. The punishment may extend to a
period of seven years and shall also be liable to fine. This section has to be read along with the
section 360 and section 361 of IPC as it provides punishment for both types of kidnapping which
are kidnapping from India and also from the lawful guardian.12
Sridhar Pandurang Hedge v. State of Karnataka13
In this case the accused person has kidnapped a school going boy and demanded a ransom of
three lakh rupees from the father of that boy. He was charged for the same and the trail court
acquitted him due to minor discrepancies. High court sentenced them under section 363 of IPC
setting aside the acquittal ordered by the trail court. The Supreme Court has confirmed the same.
A.N. Vyankatesh v. State of Tamilnadu14
In this case a boy was kidnapped and the accused asked the father of the buy for ransom. The
police arrested the accused from the place of settlement of ransom and the dead body of the
missing boy was recovered. First an FIR of missing case of a boy was lodged and later it was
amended as a case of demand of ransom from the accused. The trail court convicted the accused
under section 363 of IPC and he appealed further and the some eye witnesses also deposed that
they have seen the boy playing with the accused a few days ago and the accused also tried to run
away from the place by seeing the police officers and all the evidence were against him and the
court confirmed the conviction and sentence of the accused under the section 363 of IPC.
12 v. n. parange, Indian penal code, 1st edition, 2010 , central law publications, pg no 533
13 2004 Cr LJ 4667 (SC)
14 2005 Cr LJ 3732 (SC)

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AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION

Sections 363A to 369 are aggravated form of kidnapping and abduction. Kidnapping is an
offence in itself but abduction is not so the aggravated form not only offence but they are only
liability clause in the statute.
Kidnapping or maiming a minor for purposes of begging:
As defined under section 363A:
(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 can 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 minor, employs or uses such minor for
the purpose of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or

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otherwise obtained the custody of that minor in order that the minor might be employed or used
for the purposes of begging.15
(4) In this section
(a) Begging means;
(i) Soliciting or receiving alms in a public place, whether under the pretence of singing, dancing,
fortune-telling, 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 e extorting alms, any sore, wound,
injury, deformity or disease, whether of himself or of nay 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.
Child Trafficking is an inhumane offence against defenseless and innocent children. Millions of
children are forcibly trafficked or coerced across borders only to be sold in the sex trade, for
illegal adoption, for criminal activities, for work as domestic servants, beggars, soldiers, or for
other purposes. The urgency to combat trafficking in children is understandable considering the
heinous nature of the phenomenon it is an affront to principles of human dignity and morality
and a severe violation of basic human rights. Principle 9 of the Geneva Declaration of Rights of
the Child of 1924 states explicitly that the The child shall be protected against all forms of
neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.

15 Puan Sri Datin Seri N. Saraswathy Devi, Child Trafficking :The Recent emergence of the global issue,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc

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Violence is not the necessary mode for child trafficking, as has been often misconceived, as the
victims are tricked, deceived, forced, sold by their parents or otherwise coerced into situations,
which they later cannot escape from.16
Kidnapping or abducting in order to murder:
As defined under section 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.
To establish an offence under this section it must be proved that the person charged with the
offence had the intention at the time of the kidnapping or abduction that the person will be
murdered or so disposed of as to be put in danger of being murdered. If no evidence is available
on the score, the accused cannot be convicted under this section.
In Sacha Singh v. State of Punjab17, during the period of insurgency, two young Sikh boys were
abducted by armed assailants from their house on a dark night in the sight of their parents. They
were killed within a short while by the abductors. The abductors were charged with murder. It
was held that when more persons than one have abducted the victim, who was later murdered is
within the legal province of the court to justifiably draw a presumption depending on the factual
situation that all the abductors are responsible for murder. Section 34 of the Penal code could be
invoked for the aid to meet the ends of justice.
An abducted victim was murdered later on. It was held that the court can, depending on the
factual situation, draw the presumption that the abductors are responsible for the murder. It is
their responsibility to explain to the court what they had done with the victim.
Kidnapping for ransom, etc:
16 Puan Sri Datin Seri N. Saraswathy Devi, Child Trafficking :The Recent emergence of the global
issue, retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc
17 2001 Cr LJ 1734 (SC).

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As defined under Section 364-A

Whoever kidnaps or abducts any person or keeps a person in detention of the 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 death or hurt, or causes hurt
or death to such person in order to compel the Government or any foreign State or international
inter-governmental 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:
1.

Kidnapping or abducting any person

2.

Threatens to cause death or hurt to such person

3.

Compelling the Government or any person to pay ransom.

P. Liaquat Ali Khan v. State of Andhra Pradesh
A girl named Kearthi aged about 3 years was studying Nursery class in Sri Lakshmi
English Medium School. PW-5 was her class teacher and PW- 6 the principal of school. PW-1 is
grandfather and PW-2 is father of the said victim minor girl Kearthi. PW-7 is their driver and
PW- 3 is maid servant. On 3-7-2001, PW-7, the driver dropped the girl at the school at about 830 am. At about 8-45 am one person came to her class, informed the PW-5 her class teacher that
parents of the child forgot to give syrup to her and on his request the girl was sent with him to
administer the same. After noticing that the child has been carried away by him, the class teacher
instructed PW-3 the maid servant to stop him. The said person did not stop though cautioned by
PW-3 and so, she asked PW-8 who was coming by scooter to stop that person. When PW-8
stopped him and enquired about the matter, the said person informed that he was taking the child
for administering syrup and saying so, he boarded a bus and went away. Thereafter, PW-3 went
to shop of PW-4 and enquired from him who also informed her about the taking away of the
child by said person. Later PW-3 and PW-5 went to PW-6 and informed about the incident to her,
who in turn informed about the incident to the parents of the child. Parents came to the school,
searched for the child in N.R. Peta area of Krnool and surrounding places. PW-3 and PW-5

P a g e | 16

narrated the physical features of the kidnapper. PW-12 registered the case on the basis of report
and PW-13 took up further investigation.18
Later on 4-7-2001 a letter demanding Rs. 1 crore for releasing the child was received by PW-1,
who handed over the same of PW-13, the investigation officer. On 9-7-2001 another letter
addressed in the name of PW-2 was dropped in the house of PW-9 a neighbor of PW-1
demanding Rs.75 Lakhs with instruction to keep the amount in a bag and place it under a culvert
which letter was also handed over to PW-13. On 10-7-2001 at about 12-30 pm on instruction of
PW-13 a bag containing paper was placed at the place desired. Some persons were hiding in a
nearby thorny bushes around the culvert. At about 1 pm the accused came to that place by a
scooter picked up the bag and when he reached the road constables surrounded and caught hold
of him and on enquiry the accused furnished his particulars. Thereafter the accused, took the
police to a house which was locked from outsides. The accused opened the doors and led them to
rear side bathroom where the child was found. PW-2 identified the child. Trial court held him
guilty and passed the sentence of life imprisonment. It was held by the Supreme Court in appeal
that section 364-a deals with separate type of offence where a ransom is distinguishing feature.
In this case demand of ransom has clearly established and the role played by the accused has
been analysed by the Courts below. The child was recovered on disclosure made by the accused
ho had kept him locked in a house. Therefore the accused was held liable to be convicted under
section 364-A, IPC.
Kidnapping or abducting with intent secretly and wrongfully to confine person:
As defined under 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.
Section 365 requires an intention to confine a person secretly and wrongfully. Holding a person
to ransom by his abductors is an offence under this section.

18 (2009) 3 Cr. L.J. 3736 (S.C.)

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Where there was sufficient evidence to show that the victim woman abducted from her house and
then taken to different places which included confinement to one place until she was recovered
by the police, it was held that the accused could be convicted under this section and S. 368 but
not section 366.
There was ample evidence to show that the victim was taken away under deceit and then sold to
a brothel house. She was not a minor at the time of the incident. Therefore, the accused could not
be convicted under S. 366 or 372. They could be convicted under S.365.19
Kidnapping, abducting or inducing woman to compel her marriage, etc:
As defined under 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.
Where a woman has no intention of marriage or lawful intercourse when kidnapped, this section
applies.20
Ingredients:
This section requires:
1. Kidnapping or abducting of any woman
19 Shaik Ramjan v State, 1999 Cr LJ 2161.
20 Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 34th Edition
2014 Edition) 2014, pg. 844.

(Reprint

P a g e | 18

2. Such Kidnapping or abducting must bei)

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

ii)

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; or

iii)

by means of criminal intimidation or otherwise by inducing any woman to go from

place with the intent that she may be, or knowing that she will be, forced or seduced
to illicit intercourse.

It is immaterial whether the woman kidnapped is a married woman or not.

KIDNAPS OR ABDUCTS ANY WOMAN:
If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was
under eighteen she could be kidnapped as well as abducted if the taking was by force or the
taking or enticing was by deceitful means.

21

Voluntarily going away for marriage is not an

offence under this section. Doubts about age, if not resolved satisfactorily, would go in favor of
the accused.22
WITH THE INTENT THAT SHE MAY BE COMPELLED TO MARRY ANY PERSON
AGAINST HER WILL :
The intention of the accused is the basis and the gravamen of the offence under this section. The
volition, the intention and the conduct of the woman do not determine the offence; they can only
bear upon the intent with which the accused kidnapped or abducted the woman. Where only
confinement was established, the Supreme Court held that the conviction was possible under S.
365 and 368 and not 366. Once the necessary intent of the accused is established the offence is
complete, whether or not the accused succeeded in effecting his purpose, and whether or not in
the event the woman consented to the marriage or the illicit intercourse.
FORCED OR SEDUCED TO ILLICIT INTERCOURSE:
The word forced is used in its ordinary dictionary sense and includes force by stress of
circumstances. The expression seduced, used in this section and section 366-A, means inducing
21 1990 Cr LJ 1179 (MP)
22 1988 Cr LJ 565 (Del)

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a woman to submit to illicit intercourse at any time. 23 Where a girl under eighteen years of age is
taken away from the keeping of her father by the accused with the object of marriage and
section, he is guilty of an offence under this section, notwithstanding the fact that the girl
accompanied him if her own accord and not as a result of force or misrepresentation. Mere
abduction does not bring an accused under the ambit of Section 366 of the Indian Penal Code
Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366,
IPC, the Court cannot hold the accused guilty and punish him under the section.
The Supreme Court made these observations while hearing an appeal challenging a conviction
under Section 366 of the IPC.
Gabbu was tried for committing offences under Section 366. The Session Court convicted the
accused-appellant under Sections 366 and sentenced him to undergo two years rigorous
imprisonment. The High Court in the appeal preferred by the accused appellant confirmed the
order of the Session Court following which the Supreme Court was moved.
A Division Bench comprising Justices S B Sinha and P P Naolekar, while setting aside the
conviction and allowing the appeal observed that that a mere finding that a mere finding that a
woman was abducted is not enough. It must be further proved that the accused abducted the
woman with an intent that she may be compelled, or knowing it to be likely that she will be
compelled to marry any person 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. Further, the
Bench observed that is necessary for the prosecution to prove that the accused induced the
complainant-woman or compelled by force to go from any place that such inducement was by
deceitful means.
While dealing with the instant case the Bench observed that the prosecutrix had nowhere alleged
that she was abducted with the intention to commit an offence. In overall consideration of the
material placed on record by the prosecution, we do not find that the prosecution has proved that
the accused-appellant has committed an offence under Section 366, IPC. There is a doubt as to
the place of incident and the motive of the accused in taking away the prosecutrix. We find it
23 Ramesh, (1962) 64 Bom LR 780 (SC)

P a g e | 20

difficult to believe in the story put up by the prosecutrix that she was forced to leave her place of
residence under a threat by showing a knife to her, the court also observed. In order to constitute
an offence a person must be carried off.
Procuration of minor girl:
As defined under Section 366 A:
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.
Sections 366 and 366 B are intended to punish the export and import of girls for prostitution.
Section 366 A deals with procuration of minor girls from one part of India to another part.
Section 366B makes it an offence to import into India from any country outside India below the
age of twenty one years for the purpose of prostitution.24
Ingredients:
This section requires two things:
Inducing a girl under eighteen years to go from any place to do an act and intention or
knowledge that such girl will be forced or seduced to illicit intercourse with a person.
An offence under this section is one of inducement with a particular object, and when after the
inducement the offenders offer the girl to several persons a fresh offence is not committed at
every fresh offer for sale.
1. Seduced: The word seduced is used in the ordinary sense of enticing or
tempting irrespective of whether the minor girl has been previously compelled
or has submitted to illicit intercourse.

24 Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 34th Edition
2014 Edition)2014, pg. 847.

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P a g e | 21

2.

Age: It is necessary to prove the age of the prosecutrix to be below 18 years.

In this case, the school certificate was considered to be the best evidence.

Predominantly, women and children are trafficked in for the sexual trade.
The lack of employment in their native countries, force women and children into illegal
migration, through migrant traffickers who offer package deals. Deceptive means such as false
promises of careers in business, factories and households, are used to lure the women and
children to being trafficked. They are inevitably then found imprisoned in brothels. In many
cases, the women are lured to foreign countries in the hope of obtaining legitimate work, where
they are then paid salaries and the poverty eventually forces them to resort to prostitution or to
prostitute themselves under duress.
The trafficking of children is usually by way of kidnapping or abduction, once abducted, threats
and acts of violence are used to hold on to the victims. In Thailand for instance, brothel
managers employ agents to collect photos of young girls as they go to school. The girls are then
selected by the managers and upon selection the girls are ordered by them for the agents to
kidnap.
Manjappa v. State of Karnataka25,
On 03.04.1997, Hanumanthappa, father of the victim, lodged a complaint alleging that his
daughter Shilpa, aged 13 years, was kidnapped by the appellants i.e. Vijay M.S.Balakrishna
Madiwalar and Manjappa herein on 24.01.1997 at about 11.00 a.m. from his house and they had
taken her to Bombay with an intention to force her to have illicit intercourse and thereafter, had
sold the victim to Shanta at Bombay for Rs.5000/- for the purpose of prostitution and for
immoral purposes. On the strength of the said complaint, Kumarapatnam Police registered a case
in Crime No. 41 of 1997 and started investigation. On 24.04.1997, on receiving information
about the victim, the Investigation Officer had gone to Bombay along with the panch witnesses
and the complainant, traced out the girl and the appellants herein and returned to Kumarapatnam
Police Station on 27.04.1997. The same day, the statement of the victim Shilpa was recorded and
she was sent to the C.G. Hospital Davanagere for medical examination. The appellants herein
and Shanta were arrested on 27.04.1997 and charged for the commission of the offences
25 (2010) IV Cr.L.J. 4729 (s.c.)

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punishable under Sections 366A, 372, 373 read with 34 I.P.C. The prosecution examined six
witnesses in support of its case and marked several documents. The session judge convicted the
Shanta and Madiwalar but acquitted the Manjappa for section 366-A, 372 and 373 r/w 34 of IPC.
In appeal by state in high court the sentence of Shanta and Madiwalar was increased to 7 year
imprisonment and fine of Rs. 50,000/- and convicted Manjappa with same. The supreme court
confirmed the sentence of high court and rejected the appeal of Madiwalar And Manjappa for
reduction of sentence.
Importation of girl from foreign country:
As defined under Section 366B:
Whoever imports into India from any country outside India 3or from the State of Jammu and
Kashmir any girl under the age of twenty-one years with intent that she may be, or knowing it to
be 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.26
The Select Committee in their Report observed: the case of girls imported from a foreign
country we propose to deal with by the insertion of a new section 366 B in the Code. We are
unanimously of opinion that the requirements of the Convention will be substantially met by
penalizing the importation of girls from a foreign country. At the same time we have so worded
the clause as to prevent its being made a dead-letter by the adoption of the course of
importing the girl first into an Indian State. After the coming into force of the Constitution of
India this section was amended to bring it in accord with the changed circumstances.
Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc:
As defined under Section 367:
Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so
disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to unnatural
26 Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 34th Edition
2014 Edition)2014, pg. 847.

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P a g e | 23

lust of any person, or knowing it to be likely that such person will be so subjected or disposed of,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Wrongfully concealing or keeping in confinement, kidnapped or abducted person:
As defined under Section 368:
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully
conceals or confines such person, shall be punished in the same manner as if he dad kidnapped or
abducted such person with the same intention or knowledge, or for the same purpose as that with
or for which he conceals or detains such person in confinement.
This section does not apply to the principal offender but to those persons who assist him in
concealing any person who has been kidnapped. A kidnapper cannot be convicted under this
section.27
Ingredients of this section:
1. The person in question has been kidnapped
2. The accused knew that the said person had been kidnapped.
3. The accused having such knowledge wrongfully conceals or confines the person
concerned.
Apart from direct evidence these ingredients can be proved by facts and circumstances of a
particular case. In Saroj Kumari case28 the appellant was found in possession of a newborn
child. On asking, no explanation was given by her. She pretended to conceal the child and claim
it to be hers. It was a fact that she had not delivered in the recent past. Since all the ingredients
were established she was held to be guilty of the offence. Knowledge of the assailant is the most
important factor here. For all practical and legal purposes, knowledge means the state of mind
entertained by a person with regard to existing facts which he has himself observed, or the
existence of which has been communicated to him by a person he has no reason to doubt.
Kidnapping or abducting child less than ten years with intent to steal from its person:
27 1990 Cr LJ 2241
28 (1973) 3 SCC 669

P a g e | 24

As defined under Section 369:

Whoever kidnaps or abducts any child under the age of ten years with the intention of taking
dishonestly any movable property from the person of such child, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
This section is intended to protect enticing away of children from their parents in order to steal
ornaments from the children. The offence being a serious one, punishment is 7 years
imprisonment and fine. It may however be noted that the offence under 363 is included in this
section. The offence is cognizable, non bailable, not compoundable and triable by a first class
Magistrate.

Difference between Kidnapping & Abduction

Kidnapping:

P a g e | 25

As defined by Blackstone, kidnapping is the forcible abduction or stealing away of a

man, woman or child from their own country and sending them into another. It has been said to
be a false imprisonment aggravated by conveying the imprisoned person to some other place.
As defined by some courts it is said to be an aggravated species of false imprisonment.
As defined by some statutes and followed by decisions of some courts, it is a forcible or
fraudulent carrying away from his place of residence or the arresting or imprisonment of any
person with intent to have such person carried away from his residence or secret confinement
within the state or detention against the will, all wilfully and without authority of law.
As defined under section 359 of IPC, kidnapping is of two kinds: kidnapping from India, and
kidnapping from lawful guardianship. The literal meaning of kidnapping is child stealing.

Abduction:
It is an offence at common law to take children from their parents or guardians, or others
entrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy or
any corrupt or improper practices (as by intoxication), for the purpose of marrying them, though
the parties themselves may be consenting to the marriage, but it is stated to be the better opinion,
that if a man marry a woman under age, without the consent of her father or guardian simpliciter,
that act is not indictable at common law.29
As under section 362 of IPC, abduction is, whoever by force compels, or by any deceitful
means induces, any person to go from any place, is said to abduct that person.
R. v. Robins:
A went in the night to the house of B. and placed a ladder against a window and held it
for C., the daughter of B., and under 16 years of age, to descend, which she did, and then eloped
with A, this was held to be a taking of C out of the possession of her father, although C had
herself proposed to A to bring the ladder and elope with him. It was held also that it was no
defence for A that he did not know that C was under 16, or that from her appearance he might
have thought she was of a greater age.30
R. v. Timmins:

29 1 John Ebsworth A Handy Book on the Law of Infants 52

30 R. v. Robins,1 C. &K. 456

P a g e | 26

In this case the defendant had kept the girl from home three nights and debauched her. It
was held not necessary that the defendant should take the girl with a view of keeping her from
home permanently.31

KIDNAPPING

In kidnapping the injured person is

ABDUCTION

taken away against his will and

sufficient and there is no matter of

without his consent.

Injured person is forcibly taken away

excuse that the woman was taken

from his residence or lawful authority

refuses afterwards to continue with the

and that person is imprisoned.

A person can be secretly confined in a

offender and if she is forced against

away by her own consent and if she

her will, from that time it is said that

state or sent out of the state against his

will.
Kidnapping is committed only in

her father, or mother, or any lawful

of age if male, and under eighteen

guardian of the girl against their will,

years if a female or a person of

unsound.
To kidnap someone is to take them
against their will and hold them as
hostage to be used as a negotiating
tool.

she is taken against her will.

If any person takes an unmarried girl
under 16 years of age unlawfully, from

respect of a minor under sixteen years

In abduction taking a woman away is

shall be guilty of abduction.

The taking away of an unmarried girl
may be by force, fraud, or by
obtaining the consent of the girl by
making promises or giving gifts or
marrying secretly.

Abducted person may be minor or major:

Biswanath Mallick v State of Orissa32

31 Reg. v. Timmins, 30 L. J. 45, M. C.

32 1995 CriLJ 1416

P a g e | 27

A minor girl was kidnapped by accused, and after kidnap victim was married by accused.
Victim's father lodged complaint against accused under section 363 and 366 of IPC. Accused was
found after five years of kidnap. Accused convicted in trial court under section 363 and 366 of
IPC. Accused appealed. Appellate court held that minor no where mentioned that marriage was
caused against her will and there was no compulsion. So, in the absence of purposes mentioned
in section 366, IPC charge fails. The conviction under section 366 is set aside by HC. Trial court
after analyzing mentioned that victim was minor and medical evidence shown that she may be
18 years. So, ingredients required to constitute offence under 361 satisfy and the accused
sentence was reduced.

Rameshwar Singh Vs. Emperor33

Facts of the case:
Musammat Chhatia was kidnapped by Khubal Singh, her father Gajinder Rai complained
to Sub-Divisional Magistrate and they issued a search warrant for her recovery. Later, they girl
was recovered by her father and an application was filed before the Sub-Divisional Magistrate
and they ordered to produce the girl on 20 May, 1936 but they didnt produce. So they ordered to
produce on May 29, 1936. Gajinder Rais case was that the accused Rameshwar Singh went to
his house in his absence on May 20, 1936 and said to his wife, Moti Jhari that the girl has to be
produced before Magistrate and took her and he never produced her and he took her to his house.
When Gajinder Rai came to his house, he got to know that his daughter was taken away by the
accused. He suspected the intentions of the accused and went to his house and demanded for the
restoration of her daughter, but accused refused and said that he intended to marry her. On May
22, 1936 complaint was filed by Gajinder Rai and a search warrant was issued by Magistrate but
it was not executed for two months and on June 22, 1936 the accused surrendered before the
magistrate. On July 22, 1936 girl was produced before magistrate.

Contentions:
Accused contended that the girl was made over to him by her parents was for marriage
for a consideration of Rs. 400 out of which Rs. 300 was paid by him and the marriage was

33 AIR1937Pat440

P a g e | 28

performed by her father and due to balance amount of Rs. 100 her father made a false complaint
against him.

Distinction laid down between kidnapping and abduction was made under
this case
The accused was tried for two charges under section 366 IPC, i.e. for kidnapping and
abduction.
Offence is kidnapping if the the victim was below 16 years and abduction if she was above 16
years, and if she was taken away by deceitful means.

Held: Accused were acquitted and convictions were set aside.

Kidnapping is punishable per se whereas abduction is not

punishable per se:
Abhaya Jena and Anr. Vs. State34
Facts of the case:
Manjula Pani & Nandana Bebarta were returning from jungle carrying firewood.
Appellants caught Manjula Pani and she requested them to leave by saying her marriage was
already settled but appellants dragged her, in this process one of the appellants tore her blouse.
Israel Singh & Rebika Jena saw appellants taking her in motor cycle to Bhaliatota. After some
time Manjula Panis brother & father came there and rescued her. A charge sheet was filed
against appellants under section 363 and 366.

Contention:
Appellants contended that they are acquitted for the charge under section 363 of IPC due
to victim was not a minor, so, charge under section 366 of IPC for kidnapping the minor with the
intent to have illicit intercourse must also fail because they were charged for kidnapping a minor
and they

Distinction laid down between kidnapping and abduction was made under
this case

Ingredients of both offences are different.

34 1997(2)ALT(Cri)7

P a g e | 29

Kidnapping except kidnapping from India is an offence against guardianship. According

to section 361 of IPC kidnapping is enticing or removing a minor from his lawful

guardian without his consent.

According to section 362 of IPC when a person is by force compelled or by any deceitful

means induced to go from any place.

In abduction the abducted person may be a minor or major.
Kidnapping is punishable per se under section 363 of IPC whereas abduction is not
punishable per se and it should be accompanied by a purpose under section 364 to 366 of
IPC.

Held:The appeal allowed and the order of conviction passed against appellants in trial court was
set aside and the appellants were acquitted for the charge under section 366 of IPC.

Bhagaban Mahakud and Ors. Vs. State35

Facts of the case:
There was a marriage ceremony of Tubi Debi sister of Kuni Debi at their fathers
residence. Kuni Debi with her brother and his wife and her first cousin and also the accused
attended the marriage. On afternoon they all started to leave newly married couple at village
Hindola. When they were at a distance from Gagarbeda Busti the accused with some others came
from the opposite direction and forcibly took away Kuni Debi after assaulting her brother and
putting Tubi Debi inside the house of accused and they didnt allow her brother to take her on the
ground to marry her.

Contention:
Appellants contended that they were charged for kidnapping but convicted for abduction
under section 366 of IPC and they were not charged for the abduction but convicted.

Distinction laid down between kidnapping and abduction was made under
this case

Kidnapping and abduction are two distinct offences and the ingredients are entirely

different.
Kidnapping except kidnapping from India is an offence against guardianship.

35 23(1957)CLT81

P a g e | 30

According to section 362 of IPC when a person is by force compelled or by any deceitful

means induced to go from any place.

In abduction the abducted person may be a minor or major.
Kidnapping is punishable per se under section 363 of IPC whereas abduction is not
punishable per se and it should be accompanied by a purpose under section 364 to 366 of
IPC.

Held:The revision petition is allowed. The convictions and sentence are set aside and the
accused are acquitted.

Difference between Kidnapping and Abduction under IPC36

KIDNAPPING

ABDUCTION

Kidnapping is committed only in

respect of a minor under sixteen years

Abduction, in respect of a person of

any age.

of age if male, and under eighteen years

if a female or a person of unsound.

In Kidnapping, the person kidnapped

is removed out of lawful guardianship.

Abduction has reference exclusively

to the person abducted.

A child without a guardian cannot be

kidnapped.
In Kidnapping, the minor is simply

taken away. The means used may be

In Abduction, force, compulsion, or

deceitful means are used.

innocent.

In kidnapping, consent of the person

taken or enticed is immaterial.

In abduction, consent of the person

moved, if freely and voluntarily given,
condones abduction.

In kidnapping the intent of the

offender

is

wholly

irrelevant

In abduction, the intent of the offender

is an important factor.

consideration.

36 Ratanlal & DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 34 th Edition,
2014, p.831

P a g e | 31

Kidnapping from guardianship is a

substantive offence under the Code.

Abduction is an auxiliary offence, not

punishable by itself, but made criminal
only when it is done with one or other
of the intents specified in S.364.

CONCLUSION:
Indian Penal Code specifies certain offences related to the purpose of the kidnapping.
They are Kidnapping a minor for purposes of begging, Kidnapping in order to murder,
Kidnapping for ransom, Kidnapping with the intent to secretly and wrongfully confine a person,
Kidnapping a woman to compel her into marriage, Procuration of a minor girl, The importation
of a girl from a foreign country, Kidnapping in order to subject a person to grievous harm,
including slavery kidnapping a child under 10 years old and Stealing or buying a minor for the
purpose of prostitution.

BIBLIOGRAPHY:

The Indian Penal Code, Ratanlal & Dhirajlal, 32nd edition, Lexis Nexis, 2014.
Commentaries on the Indian Penal Code, K.D.Gaur, with a foreword by Justice

P.V.Reddi, 2nd edition, 2013.

Indian penal code, Dr. V.N. Paranjape, 1st edition, Central law publications, 2010.