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Kidnapping and Abduction

CRIMINAL LAW
FACULTY OF LAW
JAMIA MILLIA ISLAMIA
SUBMITTED BY:
Najaf Hussain
B. A. LL.B. (Hons.)
Class: 2nd yr

SUBMITTED TO:
Dr. Samia Khan

INDIAN PENAL CODE PROJECT SUBMISSION Page 1


Table of Contents
1. Introduction

2. Kidnapping

3. Abduction

4. Difference between kidnapping and abduction

5. Aggravated forms of kidnapping and abduction

6. Conclusion

7. Bibliography
KIDNAPPING, ABDUCTION AND DIFFERENCE BETWEEN
KIDNAPPING & ABDUCTION DISCUSSED WITH RECENT
CASE LAWS AND STATISTICS

1. INTRODUCTION
In the terminology of the common law in many jurisdictions
(according to Black’s Law Dictionary), the crime of kidnapping
is labeled abduction when the victim is a woman. In modern
usage, kidnapping or abduction of a child is often called child
stealing, particularly when done not to collect a ransom, but
rather with the intention of keeping the child permanently (often
in a case where the child’s parents are divorced or legally
separated, whereupon the parent who does not have legal
custody will commit the act; then also known as “child
napping”). The word “kidnapping” was originally “kid nabbing”,
in other words slang for “child stealing”, but is no longer
restricted to the case of a child victim.1

Chapter XVI of the Indian Penal Code - which deals with offences
affecting human development, covers Kidnapping and Abduction.
 Kidnapping from India

(c) Ingredients -
(i) To Convey any person
(ii) Beyond the limits of India
1
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt,
(iii) Without the consent of that person or his/her
guardian

 Kidnapping from Lawful Guardianship


1.1 Child Abduction
Child abduction can refer to children being taken away without
their parents’ consent, but with the child’s consent. In England
and Wales it is child abduction to take away a child under the
age of 16 without parental consent. Abduction is the crime in
English law of taking a) a girl under 16 from possession of her
parent, or guardian, or b) a girl of 18 or defective woman of any
age from such possession of unlawful sexual intercourse, or c) a
girl under 21 to marry or have sexual intercourse, or d) taking
away and detaining any woman with the intention that she shall
marry or have unlawful sexual intercourse with a person, by
force, or for the sake of her property. Abduction or kidnapping
any child is also an offence. Abduction of voters is also a criminal
act.2
1.2. Kidnapping
Kidnapping, according to Walker,3 is the common name for the
common law offence of carrying away, or secreting, of any
person against his will, or against the will of his lawful
guardians. It may be constituted by false imprisonment, which is
total restraint of a person and his confinement without lawful
authority or justification.

1.3. Ten Conditions, Of Kidnapping In IPC:


2
Walker, “Oxford Companion to Law”, Oxford Publications, New Delhi, 20th Edition, 1980, pg. 701
3
Ibid, pg.3
India has comprehensive legislation to counter kidnapping, with
the Indian Penal Code outlining 10 specific offences related to
the purpose of the kidnapping. These 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;
 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;
 Stealing or buying a minor for the purpose of prostitution. 4

2. KIDNAPPING
Meaning of kidnapping in the local language include the
abduction as synonym but the real difference in the
understanding is following:
2.1 Section 359- Kidnapping: Kidnapping is of two kinds:
kidnapping from India, and kidnapping from lawful
guardianship.
The literal meaning of kidnapping is child stealing.
The draftsmen of the code said:
“the crime of kidnapping consists, according to our definition of
it, in conveying a person without his consent or the consent of
some person legally authorized to consent on his behalf, or with
such consent obtained by deception, out of the protection of the
law, or of those whom the law has appointed his guardians.”
4
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt.,
“This offence may be committed on a child by removing that
child out of the keeping of its lawful guardian or guardians. On a
grown-up man it can be committed only by conveying him
beyond the limits of the Company’s territories, or by receiving
him on board of a ship for that purpose.”

“The carrying of a grown up person by force from one place


within the Company’s territories to another, and the enslaving
him within the Company’s territories, are offences sufficiently
provided for under the heads of restraint and confinement. The
enticing of a grown-up person by false promises to go from place
, may be a subject for a civil action, and , under circumstances,
for a criminal prosecution; but it does not appear to us to come
properly under the head of kidnapping.”5
In Badlu Shah v Emperor6 it was held that Kidnapping and
abduction do not include the offence of wrongful confinement or
keeping, in confinement, a kidnapped person.7

The words ‘kidnapping’ and ‘abduction’ do not include the


offence of wrongful confinement or keeping in confinement a
kidnapped person.

2.2 Section 360- Kidnapping from India:


Essential ingredients: The following are the essential
ingredients of the offence under this section:
5
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.2.
6
AIR 1929 All 454
7
Sarvaria SK, “RA Nelson’s Indian Penal Code” ed. 9th , Vol. 3, LexisNexis Butterworths Publications,
New Delhi pg. 3512
1) Conveyance of a person: To convey means to carry from
one place to another. The conveyance or carrying is a
continuous process until the destination is reached. In the
case of any offence under this section, the destination must
be some foreign territory.
2) Beyond the limits of India: these words in the section
indicate that for an offence under it must be to some
foreign territory.
3) Without the consent of that person or of some person
legally authorized to consent on behalf of that person: A
consent given under a misapprehension of fact, is not true
consent.8
2.3 Section 361:
Kidnapping from lawful guardianship: Whoever takes or
entices any minor under sixteen years of age if a male, or under
eighteen years of age if a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such minor or
person of unsound mind, without the consent of such guardian,
is said to kidnap such minor or person from lawful guardianship

The offence under this section may be committed in respect of


either a minor or a person of unsound mind. To kidnap a grown-
up person, therefore would not amount to an offence under it. 9
The object of this section is at least as much to protect children
of tender age from being abducted or seduced for improper
purposes, as for the protection of the rights of parents and

8
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.3.
9
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 649.
guardians having the lawful charge or custody of minors or
insane persons.
Ingredients: This section has four main essentials10:
1. Taking or enticing away a minor person or a person of
unsound mind.
2. Such minor must be under the age of sixteen years, if male,
or under the age of eighteen years, if a female.
3. The taking away or enticing must be out of the keeping of
the lawful guardian of such minor or person of unsound
mind.
4. Such enticing away must be without the consent of the
lawful guardian.

The taking need not be by force, actual or constructive, and it is


immaterial whether the girl consents or not. There must be a
taking of the child out of the possession of the parent. If a child
leaves its parent’s house for a particular purpose with their
consent, it cannot be said to be out of the parent’s keeping. 11

The offence of kidnapping from lawful guardianship is complete


when the minor is actually taken from lawful guardianship; it is
not an offence continuing so long as the minor is kept out of
such guardianship. In determining whether a person takes a
minor out of the lawful guardian, the distance to which the
minor is taken away is immaterial. The act of taking is not, in the
proper sense of the term, a continuous act: when once the boy or
girl has been actually taken out of the keeping, the act is a
10
Restated in Biswanath Mallick v. State of Orissa, 1995 CrLj 1416 (Ori).
11
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008 at pg. 650.
completed one. If continuous, it would be difficult to say when
the continuous taking ceased; it could only be when the boy or
girl was actually restored to the keeping of the guardian. 12

Enticing is an act of the accused by which the person


kidnapped is induced of his own accord to go to the kidnapper.
The word ‘entice’ involves an idea of inducement or allurement
by exciting hope or desire in the other. It may take many forms
difficult to visualize. The word Taking in this section means
nothing but physical taking.13

The word “keeping’ implies neither apprehension nor detention


but rather maintenance, protection and control, manifested not
by continual action but as available on necessity arising and this
relation between the minor and the guardian is certainly not
dissolved so long as the minor can at will take advantage of it
and place herself within the sphere of its operation. 14

The guardianship of the mother does not cease while a minor is


in the possession of another person who has been lawfully
entrusted with the care and custody of such minor by the
mother.15If the minor is not in the custody of a lawful guardian,
the offence cannot be committed, whatever the belief of the
taker may be. The taking or enticing of the minor out of the
keeping of the legal guardian must be without his consent. The
consent of the minor is immaterial. If a man by false and
12
Ibid.
13
Basu N.D., “Commentary on Indian Penal Code” ed. 10th, vol. 2, Ashoka Law House, New Delhi, 2007
pg. 1900
14
Vishnu v. State, 1997 Cr LJ 1724
15
K.K Ali, (1936) 15 Pat 817
fraudulent representation induce the parents of a girl to allow
him to take her away, such taking will amount to kidnapping. In
case of Parkash v. State of Haryana16 it was said that the two
words ‘takes’ and ‘entices’ as used in Section 361, IPC are
intended to be read together so that each takes to some extent
its colour and content from the other. If the minor leaves her
paternal home completely uninfluenced by any promise, offer or
inducement emanating from the guilty party, then the latter
cannot be considered to have committed the offence as defined
in Section 361, IPC. Consent given by the guardian after the
commission of the offence would not cure it. 17

The word ‘lawful’ must be literally construed so as to distinguish


it from “legal guardian” as a guardian maybe lawful without
being legal. The expression “lawfully entrusted” signifies that
the care and custody of a minor. Entrustment means the giving,
handing over, or confiding of something by one person to
another.

2.4 Section 363:


Punishment for Kidnapping:
This section must be read with Section 361. The offence of
kidnapping from lawful guardianship penalized by this section is
the offence which is defined by Section 361. 18 The person against
whom the offence is committed must be under the age of
sixteen, if a male, and under the age of eighteen years if a
female. Where a girl of 23 years of age left her parents of her

16
2004 Cr.L.J. 595 SC
17
Ganesh, (1909) 31 All 448
18
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 651
own will and married a man, section 363 or 366 was not
attracted. 19
Where in a case of kidnapping the girl deposed that
she had gone with the accused voluntarily, his conviction u/s 363
was set aside.20
3. ABDUCTION

As expand kidnapping, abduction is also a crime under Indian


Penal Code it is mentioned in following sections.

3.1 Section 362:


Abduction: “Whoever by force compels, or by any deceitful
means induces, any person to go from any place, is said to
abduct that person”

This section merely gives a definition of the word “abduction”


which occurs in some of the penal provisions which follow. There
is no such offence as abduction under the Code, but abduction
with certain intent is an offence. Force or fraud is essential.
Ingredients- this section requires two things21:
1. Forceful compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the
going of a person from any place.

Force in Section 362 means actual force and not merely a show
or threat of force. Deceitful means signifies anything intended
to mislead another. It includes inducement and its scope is very
19
Oroos Fatima v Sr. Supdt of Police, Aligarh, 1993 CrLJ 1 (All)
20
Bhajan Lal v. State of U.P, 1996 CrLJ 460 (All)
21
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 657
wide. The intention of the accused, one may say, is a gravamen
of the charge.

DIFFERENCE BETWEEN KIDNAPPING AND


ABDUCTION
The difference can be understood by the mentioned definition in
a definitive way but to go into dept, when we put the practical
and theoretical implication the following difference comesout in
point

1. ‘Kidnapping’ is committed only in respect of a minor


under sixteen years of age if male and under eighteen
years if a male or a person of unsound; ‘abduction’, in
respect of a person of any age.
2. In ‘Kidnapping’, the person kidnapped is removed out of
lawful guardianship. A child without a guardian cannot be
kidnapped. ‘Abduction’ has reference exclusively to the
person abducted.
3. In Kidnapping, the minor is simply taken away. The means
used may be innocent. In ‘Abduction’, force, compulsion, or
deceitful means are used.
4. 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.
5. In ‘kidnapping’ the intent of the offender is a wholly
irrelevant consideration: in abduction, it is the important
factor.
6. Kidnapping from guardianship is a substantive offence
under the Code; but 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. 22
 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.

4.1 . Section 363A- Kidnapping or maiming a minor for


purposes of begging:
This Section was inserted in 1959 to put down effectively the evil
of kidnapping children for exploiting them for begging. There
are cases wherein minors are kidnapped are kidnapped and
castrated with a view to make them eunuchs who could be
useful as professional beggars. The offence under Section 363-A
is triable by a Magistrate of the first class while under 363 –A(2)
is triable by a Court of Sessions. Barring this the offence under
363-A is cognizable, not bailable and not compoundable. 23

Although men are also victimized, the overwhelming majority of


those trafficked are women and children. According to official
estimates, between 1 and 2 million women and children are
trafficked each year worldwide for forced labour, domestic

22
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 658
23
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd Edition, 2006, p. 529
servitude, or sexual exploitation. An estimated 50,000 persons
are trafficked each year to the United States. Trafficking is now
considered the third largest source of profits for organized
crime, behind only drugs and guns, generating billions of dollars
annually.

Child Trafficking24 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.”
25

Despite being in existence for centuries, Child Trafficking has


only in recent years emerged as an issue of global concern due
to the worldwide consensus and co-operation to join hands in
fighting this heinous crime; With the amplification of
international and national legal apparatus, the trafficking of
human beings is perceived to be more than a crime – it is a
24
Van Bueren ,“The International Law on the Rights of a Child,” Kluwer 1989 – “Trafficking” in children
is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of
exploitation.
25
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
serious violation of human rights, children’s rights, labour rights
and basic fundamental freedoms. Child Trafficking has become
highly lucrative and increasingly worthwhile as women and
children are considered commodities which can be “sold”
several times over. With the permeable borders and the
advancement of technology child trafficking has expanded
around the Globe where the routes for trafficking children alter
according to local conditions or supply and demand factors. It is
no longer adequate to say that victims are trafficked from poor
to the wealthier ones.

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. 26

4.2 . Section 364- Kidnapping or abducting in order to


murder
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.27 If no evidence is available on the score, the accused
cannot be convicted under this section. Where the witnesses
saw the party of the accused persons forcibly taking away a
woman, who was found dead a week later, and though there was

26
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
27
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 660
nothing to connect them with the murder, there was evidence of
the body being destroyed by them, they were convicted not of
murder but only under this section and s. 201 for destroying
evidence.28 In another case the two accused and the third person
were seen disappearing together. They had drinks and moved
away. The one who did not return home, his moustache, torn
kurta and a few drops of blood were found by the side of a
swollen river. Whether he was pushed, or he slipped could not
be known. His companions were not convicted under this
section.29 Where the accused persons, on false pretext of
repaying the money to the deceased, induced him to accompany
them to a distant place and after killing him, threw the body in a
private ravine, their conviction under s. 364 along with sections
300 and 201 was upheld.30

In Sacha Singh v. State of Punjab31, 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.32
28
Pati Ram v. State of U.P., 1990 Cr LJ 447 (All.).
29
Mahavir v. State of U.P, 1990 Cr LJ 1605 (All).
30
Valiyaveetil Ashraf v State, 1994 Cr LJ 555 (Ker).
31
2001 Cr LJ 1734 (SC).
32
S.N. Mishra, “Indian Penal Code”, Central Law Publications, Allahabad, 14th Edition, 2006 at pg. 583.
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. 33

4.3 . Section 364-A


Kidnapping for ransom, etc.
The kidnapped child was recovered from the custody of the
accused by the raiding party. The letter demanding ransom was
recovered from the pocket of the accused. He had neither posted
it nor contacted any body for the purpose for three days till his
arrest. The court said that there was no demand for ransom. An
offence under this section was not made out. Conviction under
section 363 and 365 was held proper. 34
Hence the ingredients of this section are35:
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.

5.4. Section 365- Kidnapping or abducting with intent


secretly and wrongfully to confine person: Section 365
requires an intention to confine a person secretly and

33
Sacha Singh v. State of Punjab, 2001 Cr LJ 1734 (SC).
34
Netra Pal v. State (NCT) of Delhi, 2001 Cr LJ 1669 (Del)
35
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 661.
wrongfully. Holding a person to ransom by his abductors is an
offence under this section. 36

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. 37

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.365.38
5.5 Section 366- Kidnapping, abducting or inducing
woman to compel her marriage, etc: Where a woman has no
intention of marriage or lawful intercourse when kidnapped, this
section applies.39
Ingredients: this section requires:

1. Kidnapping or abducting of any woman


2. Such Kidnapping or abducting must be-
i) 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

36
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.530
37
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.
38
Shaik Ramjan v State, 1999 Cr LJ 2161.
39
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 664.
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.40
It is immaterial whether the woman kidnapped is a married
woman or not.

5.5 Section 366 A- Procuration of minor girl


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.41

Ingredients:
This section requires two things: 1. inducing a girl under
eighteen years to go from any place to do an act, 2. 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

40
Ibid.
41
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 667.
offer the girl to several persons a fresh offence is not committed
at every fresh offer for sale.

5.7. Section 366B- Importation of girl from foreign


country:

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. 42 After the coming
into force of the Constitution of India this section was amended
to bring it in accord with the changed circumstances. 43

5.8 Section 367:


Kidnapping or abducting in order to subject person to
grievous hurt, slavery, etc: 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 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

42
Gazette of India, dated February 10, 1923, Part V, p.79
43
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.536
term which may extend to ten years, and shall also be liable to
fine.

5.9 Section 368:


Wrongfully concealing or keeping in confinement,
kidnapped or abducted person: 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. 44
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.45 In Saroj Kumari
case46 the appellant was found in possession of a newborn child.
On asking, no explanation was given by her. She pretended to
44
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241
45
Saroj Kumari, 1973 Cr LJ 267
46
(1973) 3 SCC 669
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.47

5.10 Section 369- Kidnapping or abducting child less than


ten years with intent to steal from its person:
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. 48 The offence is cognizable,
non bailable, not compoundable and triable by a first class
Magistrate.

47
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
48
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
CONCLUSION
Essential to combating trafficking of children is the co-operation
between the legal systems, the government bodies and the non-
government bodies around the globe. The passing of deterrent
laws for the trafficker, as opposed to the victim is a step towards
reducing the occurrence of trafficking in children, however one
must bear in mind that the criminal mind will always find its
ways to circumvent the laws passed.

Most societies are plagued by the malady of child trafficking,


making it today a “global phenomenon” yet it remains somewhat
“unknown”. The exact magnitude of the offence is not
represented in terms of data and statistics and the exact modes
of perpetration are still oblivion. There is lack of awareness
amongst citizens – possibly due to the chauvinism of state
authorities to disclose ills that affect national dignity and
recklessness.

Co-operation amongst countries need to be fostered to counter


this phenomenon, for instance by uniformity in penal provisions
between countries which would be a welcome consideration to
reciprocal enforcement of protection and prevention in
trafficking which is mainly a “cross-border” crime. This
uniformity can be achieved through ratification of international
instruments and national implementation of these international
humanitarian instruments relating to trafficking of children.
BIBLIOGRAPHY

BOOKS REFERRED:

1. Gandhi B.M, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd

Edition, 2006.

2. DhirajLal Ratanlal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa,

Nagpur, 13th Edition (Reprint 2004 Edition), 2008.

3. Singh K.K and Bagga R., “Indian Penal Code”, The Law Book Company,

Allahabad, 2nd edition, 1994

4. Mishra S.N., “Indian Penal Code”, Central Law Publications, Allahabad,14th

Edition. 2006.

ONLINE SOURCES:

1. http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-

Ranendra%20Man.ppt.

2. http://www.indiatogether.org/2006/oct/law-immoral.htm.