INTRODUCTION

The word kidnapping have been derived from the word kid‘meaning child and napping‘to steal.

Thus kidnapping literally means child- stealing. And the word kidnapper originally (during the

17th Century) meant to signify one who stole children and others to provide servants and

labourers for American plantation.1

At common law the term kidnapping consists of stealing and carrying away, or secreting any

persons, whether in the same country, or by sending him away from his own country into some

other, or to parts beyond the seas whereby he is deprived of the friendly assistance of the laws

to redeem from such captivity.

The offence of kidnapping is an aggravated form of wrongful confinement and is

therefore, an offence in which all the elements of that offence are necessarily present. It is

however, confinement of such a serious form that the code treats it as distinct offence. But

kidnapping does not include the offence of wrongful confinement or keeping in confinement

of a kidnapped person.2

1
Law Commission of India, 42nd Report on IPC, 1971, p. 266
2
Adhik V. Emperor, AIR 1947 poat 17

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 KIDNAPPING

The Indian Penal Code recognizes two kinds of kidnapping:

1. Kidnapping from India

2. Kidnapping from lawful guardianship

KIDNAPPING FROM INDIA

Section 360 of the Indian Penal Code makes the provision for kidnapping from India and

Section 363 defines the punishment for the offence. Under this section the offence is complete,

the moment a person is taken outside the geographical territory of India without that person’s

consent or his guardian’s consent. But the offence would not be complete until the person

actually reaches not only a foreign territory but to the destination as well. The act becomes

criminal only when the person is conveyed without his consent. It is that which gives to the act

its essential element of criminality. The taking away of a person outside the territory of India

is made a separate offence because it has the effect of removing a person from the jurisdiction

of the Indian law enforcing agencies.

To attract this section there must be

1. Conveying of any person beyond the limits of India,

2. Without the consent of that person or of someone legally authorize to consent on behalf

of that person.

The offence under the section may be committed in respect of any person male or female,

major or minor and irrespective of his nationality.

Conveying without consent- The word convey literally means simply going on a journey but

in popular parlance, it now means carrying a person to his destination. Thus the offence would

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not be complete until the person actually reaches not only a foreign territory but to his

destination as well. Mere conveying of a person from one place to another is not criminal. The

act becomes criminal if he conveyed without his consent. It is that which gives to the act the

essential element of criminality. A person may be so conveyed as much by using force as by

including him to give his consent by fraud or deception, similarly a consent loses its essential

element if it is given under fear or duress in which case it is submission and not consent.

KIDNAPPING FROM LAWFUL GUARDIANSHIP

Section 361 of IPC makes kidnapping from lawful guardianship of a minor under sixteen years

of age, if a male, and under eighteen years of age, if a female, an offence. The section also

protects a person of unsound mind from being kidnapped from the lawful curator.

INGREDIENTS:

To constitute an offence under this section, some conditions must be fulfilled:

1) There must be taking or enticing of a minor, or a person of unsound mind;

The consent of the minor, who is taken or enticed is wholly immaterial, it is only the guardian’s

consent which takes the case out of its purview. Nor it is 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 taken out of the keeping of lawful guardian

would be sufficient to attract the section.

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In the case of Thakori Lal D. Vadgama v. State of Gujarat, the accused was charged for

kidnapping a minor girl, Mohini, below 15 years of age from the lawful guardianship of her

father under Section 361, IPC. It was established that the accused had at an earlier stage

solicited, or induced Mohini to leave her father’s protection by conveying or indicating an

encouraging suggestion, that he would give her shelter. Holding the accused liable for

kidnapping under section 363, IPC the Supreme Court said, that the mere circumstances that

his act was not the immediate cause of her leaving her parental home or guardian’s custody

would constitute no valid defence and would not absolve him from the offence of kidnapping.

In S. Varadarajan v. State of Madras, a girl who was 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.

2) Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female;

3) Taking or enticing must be out of the keeping of the lawful guardian of such minor or person

of unsound mind;

Section 361 makes the taking or enticing of any minor person or person of unsound mind ‘out

of the keeping of the lawful guardian’, an offence.

“Keeping” as observed in the case of State of Haryana v. Raja Ram, in the context, connotes

the idea of charge, protection, maintenance and control; further the guardian’s charge and

control appear to be compatible with the independence of action and movement in the minor,

the guardian’s protection and control of the minor being available, whenever necessity arises.
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4) Taking or enticing must be without the consent of such guardian.

The term used in the IPC is ‘lawful guardian’ and not ‘legal guardian’. The term ‘lawful

guardian’ is much wider and general. It includes not only legal guardians but also such person

like a teacher, relatives etc., who are lawfully entrusted with the care and custody of a minor.

In the case of Chandrakala v. Vipin Menon, the Supreme Court 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.

R v. Hibbert , the accused was charged under section 55 of the Offence Against the Person Act,

1861. The accused met a girl of 14 in the street, took her to another place where he seduced her

and left her where he had found her The girl was the custody of her father, but it was held that

in the absence of finding by the jury, that the prisoner was aware of this fact or had wilfully

abstained from inquiring about the guardianship of the girl, he must be acquitted.

R v. Prince was distinguished from R v. Hibbert on the ground that Hibbert did not Intend to

take the girl, nor did he abduct her out of anybody's possession, because he did not have actual

or constructive knowledge that she was under anybody's guardianship.

PUNISHMENT: The punishment for Kidnapping is prescribed under section 363 of the IPC

which calls for imprisonment which may extend to seven years along with a fine if the accused

is found guilty.

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 CONCLUSION

Kidnapping as the word suggest is the act of stealing a child. Under section 360 of Indian penal

code, 1860 there are two types of kidnapping i.e. Kidnapping from India and Kidnapping from

lawful guardianship. But there may be cases when both the kinds can overlap each other.

Kidnapping may be done to demand for ransom in exchange for releasing the victim, or for

other illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the

crime to aggravated kidnapping.

REFERENCE

 www.legalserviceindia.com

 www.advocatekhoj.com

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