KIDNAPPING :

The word kidnapping has been derived from the word ‘kid’ meaning ‘child’ and
napping meaning to steal1. Thus kidnapping literally means child child stealing.
It can also be defined as to take a person away illegally by force, usually in
order to demand money in exchange for releasing them.2 Also under criminal
law, kidnapping is the unlawful carrying away and confinement of a person
against his or her will.3

In certain cases we can also see that two forms of kidnapping may overlap each
other. For eg – If a minor is kidnapped from India may as well as at the same
time be kidnapped from his lawful guardianship also. There can also be many
purposes of kidnapping. Kidnapping may be done for ransom in exchange for
releasing the victim, or for other illegal purposes too. Also it can be
accompanied by bodily injury which elevates the crime to aggravated
kidnapping. Section 359 of the Indian Penal Code defines kidnapping from
India and kidnapping from lawful guardianship.

Webster dictionary defines kidnapping as to seize and detain or carry away by

unlawful force or fraud and often demand for ransom.4 The purpose or motive
behind kidnapping includes gaining a ransom or reward; facilitating the
commission of a felony or terrorizing the victim or a third person. Even
unlawful restraint of a person amounts to kidnapping if such restraint is
substantial enough to interfere with the victim’s liberty.

The two key elements of kidnapping are unlawful taking away of the victim and
a nefarious motive like obtaining a ransom. The intent of the kidnapper is a
decisive element in the crime of kidnapping

LAWFUL GUARDIAN AND LEGAL GUARDIAN

There is a difference between ‘lawful guardian’ and ‘legal guardian’. A
guardian can be lawful without being legal. Lawful guardian is one to whom the
care and custody of a child is ‘lawfully entrusted’. For example – when father of

1
S.N.Mishra
2
Taken from Cambridge dictionary.
3
Taken from Wikipedia.
4
Taken from Webster dictionary.

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a girl send her to school with his servant, the servant is the lawful guardian of
the girl while the father is the legal guardian.

KIDNAPPING FROM LAWFUL GUARDIANSHIP :

The essential ingredients of the offence of kidnapping from the lawful

guardianship are :

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

 Such minor must be under 16 years of age if a male, or under 18 years of
age if female.
 Such minor or person of unsound mind must be in the keeping of a lawful
guardian.
 The taking or enticing must be out of the keeping of the lawful guardian
of such minor or person of unsound mind.
 Such taking or enticing must be without the consent of such guardian.

Here ‘takes’ means “causes to go, to escort to get in possession5”. The word
take implies the absence of the desire of the person taken. Many factors are
also taken into consideration while deciding that whether there has been
taking or not. They are as follows :

The conduct of the parties particularly of the accused at the time and before
their going away together, the maturity of the child and the intellectual capacity
to think about himself and to make up his own mind, and the circumstances
under which and the object for which he/ she felt is necessary or worthwhile to
leave her guardian’s protection.

In Varadarajan v. State of Madras 6a minor girl, who had left the protection of
her knowing and having capacity to know the full import of what she was doing
voluntarily joined the accused. The Supreme Court observed that there is
distinction between taking and allowing a minor to accompany a person. In the
present case the accused was held not to have taken her away from the keeping
of her lawful guardian. Something more has to be shown, that is some kind of
inducement held out by the accused person or an active participation by him in
the formation of the intention of the minor to leave the house of the guardian is
necessary.

5
S.N.Mishra
6
A.I.R (1965) S.C. 942

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 In Rekha Rai7, B enticed a minor girl G to come out of the terrace to the
road and then to the motor car in which K was sitting, so that K may drive
away with her. It was held that the offence of kidnapping was complete only
when he drove away with her.

ABDUCTION :
Abduction in common language means the carrying away of a person by fraud
or force.8 Abduction takes place when a person by force compels or by any
deceitful means induces another person, to go from any place. Oxford
dictionary defines abduction as the action of forcibly taking someone against
their will.9 The unlawful or forcible carrying away of a person is also known as
Abduction10 . Abduction pure and simple is not an offence It is an auxiliary act
not punishable in itself, but when it is accompanied by a certain intention to
commit another offence , it per se becomes punishable as an offence. For
instance we can see :

 If the intention is that the person abducted maybe murdered or so

disposed of as to be put in danger of being murdered. Here Section 364 of
the IPC applies.
 If the abducted person is a woman and the intention is that she maybe
compelled, or is likely to be compelled, to marry any person against her
will, or maybe forced or seduced to illicit intercourse , or is likely to be so
forced or seduced, then Section 366 of the IPC applies.
 If the intention is to cause grevious hurt, or to dispose of the person
abducted as to put him in danger of being subjected to grevious hurt, or
slavery, or to the unnatural lust of any person, Section 367 of IPC applies
then.
 If the person abducted is a child under the age of ten years and the
intention is to take dishonestly any movable property from its person the
here, Section 369 of IPC applies.

INGREDIENTS : THE FOLLOWING ARE THE ESSENTIALS:

 Forcible compulsion or inducement by deceitful means.

7
(1927) 6 Pat. 471.
8
Chambers Twentieth Century Dictionary
9
Oxford dictionary
10
Webster dictionary

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  The object of such compulsion or inducement must be the going of a
person from any place.

When no force or deceit is practised on the person abducted , there can be no

offence of abduction. For instance, if a minor girl voluntarily goes out of her
guardian’s protection and meets a person, who treats her well with no
compulsion or fraud, such person will not be guilty of abduction. Nor can any
offence be committed when the woman is a willing party. In view of the
definition embodied in Section 362 IPC the word ‘force’ used therein connotes
the actual force and not merely a show or threat of force. It would be an offence
to carry away a grown-up woman by force against her own will even with the
object of restoring her to her husband.

In Mahbub11, an orphan girl aged about 17 years was brought up by M as his

own daughter. M’s neighbour ‘A’ induced her to leave home on the assurance
that either he himself would marry her or get her married. He did neither,
instead debauched her himself and handed her over to one of his friends who
also proceeded to have connection with her. A was held guilty of his offence. It
was held that the expression ‘deceitful means’ is wide enough to include the
inducing of a girl to leave her guardian’s house by means of a representation
that the person to whom show went would either marry her himself o0r arrange
for her marriage.

In Allu v. Emperor12the accused came on the roof of a house where W, a

woman was sleeping. They woke her up and asked her to accompany. She
refused to accompany, therefore, they lifted her up in order to carry her away.
She then raised an alarm and the accused dropped her on the roof and ran away.
The offence of abduction was not committed in this case because the woman
was not compelled to go from the place where she was put merely lifted up and
dropped down again. Here the accused were though not liable for abduction but
were guilty of attempting to abduct under sections 366 and 511 of the code.
Where was unwilling to follow the accused and accused compelled her by force
follow, he would be guilty of abduction.

11
(1907) 4 A.L.J.R. 482; (1905) 6 Cri. L.J.9.
12
AIR 1925 Lah 512

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 PUNISHMENT OF KIDNAPPING AND ABDUCTION :

a. Under Section 363 of The Indian Penal Code punishment of

kidnapping is given. Anyone who is kidnapped from the lawful
guardianship shall be punished with imprisonment for a term which
may extend upto seven years and fine too.
b. Under Section 363A of The Indian Penal Code if any minor is
kidnapped for the purpose of begging shall be punishable with
imprisonment which may extend to ten years and fine too.
c. If anyone maims any minor for the purpose of begging shall be
punished with imprisonment for life and will be liable for fine too.
d. Under Section 364 of The Indian Penal Code if any person is
kidnapped or abducted for the purpose of murder, or is put in the
danger of being murdered shall be punished with imprisonment for
life or rigorous punishment for a term extending ten years and would
be liable for fine too.

IILUSTRATIONS:

 A kidnaps Z from(India), intending or knowing it to be likely that Z

maybe sacrificed to an idol. A has committed the offence defined in
this section.
 A forcibly carries or entices B away from his home in order that B
maybe murdered. A has committed the offence defined in this section.

e. Under Section 364A of The Indian Penal Code whoever kidnaps or

abducts a person or even threatens to cause death or hurt for the purpose
of ransom shall be punishable with death or imprisonment for life and
shall also be liable for fine too.

f. Under Section 366 of The Indian Penal Code whoever kidnaps or

abducts any woman with intent that she maybe compelled, or knowing it
to be likely that she will be likely compelled, to marry any person against
her will, or in order that she maybe 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 of a term which may extend to 10 years, and shall also be
liable to fine.

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 DIFFERENCES BETWEEN KIDNAPPING AND ABDUCTION

 The offence of kidnapping is committed only in respect of a minor under

16 years of age if a male and under 18 years if a female or a person of
unsound mind. Abduction maybe committed in respect of a person of any
age.
 In ‘kidnapping’ the person kidnapped is removed out of lawful
guardianship. Therefore, a child without guardian cannot be kidnapped.
There can be no kidnapping of an orphan. Abduction refers to the person
kidnapped. The person abducted need not be in the keeping of any body.
 Simple taking or enticing away a minor or a person of unsound mind
constitutes kidnapping. In abduction means used are material and
therefore, force, compulsion or deceitful means must have been used.
Kidnapping may even be innocent.
 In kidnapping consent of the person taken or enticed is immaterial
because they are not competent to signify a valid consent. In abduction,
consent of a person moved, if freely and voluntarily given condones the
offence.
 In kidnapping the intent of the kidnapper is a wholly irrelevant
consideration but in abduction intent of the offender is an important
factor to constitute the offence because abduction by itself is not an
offence unless committed with certain intent as specified in section 364
and onwards.
 Kidnapping is not a continuing offence, because it is complete the
moment a person is deprived of his lawful guardianship ; whereas
abduction is a continuing offence, and the offence of abduction continues
so long as a person is moved from one place to another.
 Kidnapping is a substantive offence, while abduction is only an auxiliary
act, not punishable by itself, but made criminal when it is done with one
or the other of the intents specified in section 364 and the following ones.

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 ASSIGNMENT ON

KIDNAPPING AND ABDUCTION

SUBMITTED TO: KAVERI MA’AM

SIGNATURE OF THE TEACHER :

SUBMITTED BY : ANNU KUMARI

ROLL NO. : 1705230014
COURSE : LLB HONS. { 1ST YEAR}

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 ACKNOWLEDGEMENT
I would like to express my sincere gratitude towards my teacher
KAVERI MA’AM who gave me this golden opportunity to do this
wonderful assignment on "KIDNAPPING AND ABDUCTION”. This
assignment not only enhanced my research skills , but also taught me
a lot about my subject.
Secondly, I would also like to thank you ma’am as you have guided
me in every possible way and helped me through out with the
assignment. Lastly, I would like to thank my parents for motivating
me in completing my assignment on time and, always standing at my
back and supporting me. Thank you one and all.

ANNU KUMARI
LL.B (HONS.)

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 BIBLIOGRAPHY
 www.indiankanoon.org
 www.lexisnexis.co.in
 The Indian Penal Code 1860 (bareact)
 The Indian Penal Code : S.N.MISHRA
 The Indian Penal Code : K.D.GAUR

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 CONTENTS
 ACKNOWLEDGEMENT
 KIDNAPPING
 LAWFUL GUARDIAN AND LEGAL GUARDIAN
 KIDNAPPING FROM INDIA
 KIDNAPPING FROM LAWFUL GUARDIAN
 ABDUCTION
 ESSENTIALS OF ABDUCTION
 PUNISHMENTS OF KIDNAPPING AND ABDUCTION
 DIFFERENCES BETWEEN KIDNAPPING AND
ABDUCTION
 CONCLUSION
 BIBLIOGRAPHY

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 CONCLUSION
To conclude we can say that kidnapping and abduction remains to be two
different things. While kidnapping from lawful guardianship is defined under
section 361, it talks about simply taking away of a minor or a person of unsound
mind. In respect of a male kidnapping is done under 16 years while in respect of
a female kidnapping is done under 18 years and of a person of unsound mind
he/she can be of any age. Whoever kidnaps any person from India or from
lawful guardianship, is granted punishment with imprisonment of either
description for a term which may extend to seven years, and shall also be liable
to fine.

While abduction may take place against a person of any age. In abduction force,
compulsion or deceitful means are used. Abduction is not a substantive offence.
It is an offence only when done with some other intent as given in sections
363A, 364, 364A to 369 of The Indian Penal Code.

Section 124:

The requisites of this privilege are that there should be a public officer; a
communication has been made to him in official confidence and that he has the
discretion to refuse its disclosure on the ground that public interest would suffer
by the disclosure. State secerets, or matters which govern the administration of
government should not be disclosed, since to reveal them might be highly
prejudicial to public interest. Therefore, communications relating to affairs of
state are generally held to be privileged, and officers may refuse to disclose the.

In the case of Dilbagh Rai Jarry v. Union of India the Supreme court ridiculed
the action of the state in trying to defend the suit of railway employee, “a small
man , by urging a mere technical plea which has been pursued right upto the
summit court which has been negatived.

In the case of Watch Tower Bible and Tract Society of India v. Union of India
the Bombay High court explained the scope of the privilege by saying that when
a public officer declines to produce certain documents and claims privilege
under section 124, it is for the court at the first instance to satisfy itself that the

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documents relates to any affairs of the state and that there production is likely to
create prejudice against the state is not a sufficient reason for non-production.

Section 125 : Information as to commission of offences

This section here is intended to encourage people to give information about

offences by protecting the source of information, for otherwise, no one would
like to give such information. This section also enables police officers, etc. to
maintain secrecy about the sources of their information. No magistrate or police
officer can be compelled to disclose how and from whom he got information
about commission of an offence. Similarly, no revenue officer, can be
compelled to disclose how and from whom he got information about the
commission of an offence against a public revenue. This is called public interest
immunity from disclosure which is very much necessary for promoting
detection of crime. It is, therefore, well established that the police may supress
the identity of informants in the interest of combating crime. Accordingly,
where a person was prosecuted for selling controlled drugs and the police were
able to nag him by posting its secret agents in the home of coorperative private
residents, the prosecution was allowed to maintain the secrecy of such
observation post. It is as important to secure the coorperation of the public in
providing suitable observation post as it is necessary to encourage the public to
come forward with information .

Section :126 Professional Communications

Communications made by a client to his vakil for the purposes of his

professional employment are not permitted to be disclosed. The prohibition
extends to all communications made in confidence pertaining to any pending or
contemplated case or for the purpose of soliciting professional advice.

The reason for this prohibition on disclosure is to encourage litigants to

communicate fully and frankly with their lawyers without any fear that the
information given by them can be passed on to the opponent or to the court. In
the absence of this prohibition it would have been difficult for anybody to get
the best professional advice.

This privilege is available subject to a few conditions. In the first place, the
communication should have been made to a “barrister, attorney, pleader or
vakil”. This means that the communication should have been made to an
advocate.

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The scope of the protection is that it will apply only to such communications as
have been made for the purpose of professional employment and also to the
advice given by the vakil.

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