Section 120A

This article is written by Monesh Mehndiratta, a student of BA LLB, Graphic Era Hill University, Dehradun. This article explains the two major types of kidnapping as mentioned in the Indian Penal Code, 1860 along with the punishment given under Section 363 IPC. Further, it differentiates the offence of kidnapping from abduction and explains in detail the major judgments. 

This article has been published by Sneha Mahawar.

Introduction 

Section 359 to Section 369 of the Indian Penal Code, 1860 deal with the offence of kidnapping and abduction. The main objective of enacting these provisions is to maintain the personal liberty of citizens, protect children from being abducted for illegal and immoral purposes and preserve the rights of guardians and parents of custody of their children. The offence of kidnapping is punished under Section 363 of IPC. The word kidnapping consists of two words: ‘kid’ means child and ‘napping’ means taking away or stealing. Thus, it means stealing a child from the parents or taking away the child forcefully or by inducement from the possession of the parents. To understand Section 363 it is necessary to understand the concept of kidnapping and its types under the Indian Penal Code, 1860. The article explains the provisions of kidnapping along with its punishment and the differences between abduction and kidnapping. 

Types of kidnapping 

The two types of kidnapping as classified under Section 359 in the Indian Penal Code, 1860 are:

  1. Kidnapping from India (Section 360)
  2. Kidnapping from lawful guardian (Section 361)

Kidnapping from India 

Section 360, IPC deals with the offence of kidnapping from India which means taking a person beyond the boundaries of the country. To establish this offence, the following ingredients must be fulfilled:

  1. Convey any person outside the limits or territories of India.
  2. It must be without the consent of the person or the person legally permitted to give consent on his behalf. 

Illustration: ‘X’ is a person living in Mumbai. ‘Y’ takes him forcefully without his consent to Canada. Y committed the offence of kidnapping from India. 

Kidnapping from lawful guardian

Section 361 deals with the kidnapping of a male under the age of 16 years and a female under the age of 18 years from their lawful guardians. Another purpose of this Section is to protect the person with an unsound mind. This provision is somewhat similar to Section 55 of the Offences Against the Person Act, 1861.  

The ingredients for this offence according to this Section are:

  1. Taking or enticing of minor or person with unsound mind
  2. The person must be under the age of 16 years. 
  3. It must be done out of the keeping of lawful guardians. 
  4. Without the consent of the guardian. 

Illustration: ‘A’ is a girl of 11 years of age and lives with her father who is her lawful guardian. One day ‘B’ induces her to come with him without the consent of her father. Here, ‘B’ has committed the offence of kidnapping from a lawful guardian. 

The State of Haryana v. Raja Ram (1972)

Facts of the case 

In this case, A person ‘J’ tried to seduce a girl with an unsound mind to leave the house of her father and come to his house. When the father got to know he denied the person from entering his house as a result of which he started texting the girl. Respondent helped him by asking the girl to come to his house and he will take her to ‘J’. One night, the girl went to the respondent’s house and he took her to ‘J’. 

Issue involved in the case

Whether the respondent is guilty of committing the offence of kidnapping under Section 361 of IPC?

Judgement of the Court

The respondent was held guilty by the trial court but was acquitted when he appealed to the High Court. In the same case, the Supreme Court of India held that the Section protects the minor and person with an unsound mind from being induced or seduced by anyone. It also protects the right of custody of their guardians. It further said that the fact of whether the girl gave the consent or not is immaterial and irrelevant while deciding whether the offence of kidnapping has been committed under Section 361 of the Code. With this, the respondent was held liable for the offence.  

Taking away or enticing away

The concept and difference between ‘taking away’ and ‘enticing’ was made clear in the case of Biswanath Mallick v. State of Orissa (1995) whereby a girl was kidnapped by the accused and taken to different places. The girl was finally found in the relative’s house of the accused. The Court while deciding the matter held that ‘taking away’ means taking out of possession of the guardian where the consent of the person kidnapped is not necessary. On the other hand, ‘enticing’ means the person kidnapped is induced by the accused so that he/she goes with the will. The mental element or mens rea is missing in ‘taking away’ and is not important while it has much significance in ‘enticing’.

When the offence of kidnapping is said to be complete

The offence is said to be completed when the person with an unsound mind or minor is taken away from the lawful guardian without consent and is not a continuing offence. 

Illustration: A minor girl was enticed by ‘X’ to leave her house and promised to take her off in a car, it was held that the offence was completed when the person drove the car. (Sayyed Abdul Satar v. Emperor, 1928)

Lawful guardian 

The Section talks about lawful guardians and not legal guardians. A lawful guardian and a legal guardian don’t need to be the same. For example, a schoolmaster is a lawful guardian but parents are the legal guardians. A lawful guardian includes a natural guardian, testamentary guardian (appointed by the court) or a person to whom the minor or person of unsound mind is entrusted to take care. The minor must be in the custody of a lawful guardian or else the section will not be applied. 

Section 363 IPC : punishment for the offence of kidnapping 

The punishment for the offence of kidnapping mentioned under Sections 360 and 361 is given under Section 363 of the Code. The punishment includes imprisonment which is up to seven years and can be either simple or rigorous depending upon the gravity of the crime along with fine. The offence is cognizable, bailable and triable by the Magistrate of First Class. 

Basis Bailable offence Non-bailable offence 
Provision Defined in Section 2(a) CrPC, offences are categorised in the first schedule.  Defined in Section 2(a) CrPC, offences are categorised in the first schedule. 
Nature of crime Less grave. Serious and grave. 
Punishment Usually 3 years or less than 3 years. More than 3 years and may extend to imprisonment for life. 
Bail It is a matter of right. Left at the discretion of the court. 
Examples Cheating, bribery, unlawful assembly, etc. Dowry death, murder, rape, etc. 

Difference between compoundable and non-compoundable offence 

Basis Compoundable offence Non-compoundable offence 
Nature Less serious. Grave and serious. 
Withdrawal Charges can be withdrawn. Charges cannot be withdrawn. 
Impact on parties Affects private persons.  Affects both private persons and society. 
Compoundability Settlement can be easily done with or without the permission of the court. These offences cannot be compounded but are quashed. 
Filing of case Filed by a private person. Filed by the state. 

Rasiklal v. Kishori (2009)

In this case, it was held by the Hon’ble Supreme Court of India that the right to bail of an accused is an absolute and indefeasible in a bailable offence and the court or police are under an obligation to grant him bail. 

Remedies available in case of kidnapping 

As per the subject list given in the Constitution, ‘police’ is a matter of state list. Thus, every state will have its procedure to deal with the police and investigatory matters. In case a person is missing or is kidnapped, usually, an FIR is lodged in the police station followed by an investigation under Section 156 of the Criminal Procedure Code, 1973. After this, the whole process of the trial will begin according to the Code. However, in Delhi, the SHO personally attends such cases. It is mandatory to file the missing complaint of a child under the age of 16 years immediately but in the case of an adult, the FIR is lodged after 24 hrs from the time the person goes missing. A copy of the FIR is sent to Delhi State Legal Services Authority so that they could contribute to searching for the missing person. The Zonal Integrated Police Network also comes into the picture and if the person is found he is questioned as to whether he was kidnapped or not and then the authorities proceed with the investigation further. This is the general remedy available in this case. The other remedies are as follows:

  • In case a child is missing, there is another remedy in the form of the website ‘Track Missing Child’ created by the Ministry of Women and Child Development where the complaint can be filed and also if a child is found his information is made available on the website so that the family could match and revert. 
  • Another remedy is to reach out to the child welfare committees in a state. 

Bachpan Bachao Andolan v. Union of India (2012)

The Supreme Court, in this case, gave certain guidelines concerning kidnapping and missing complaints:

  • The FIR in such cases should be taken seriously and the officers must act quickly as soon as they receive any such information. 
  • The police officers will initially presume that it is a case of trafficking and will act accordingly. 
  • The investigation will be done followed by recording the information receipt under Section 155 CrPC.
  • The officers will opt for standard operating procedures in case of human trafficking. 
  • Every police station will have one trained Juvenile Welfare Officer mandatorily as per Section 63 of the Juvenile Justice Act, 2000 along with one paralegal volunteer. 
  • If the missing person is found, his information must be recorded in the police station and such information will be put up on the official website as well so that the parents can keep a check. 
  • The court ordered the anti-human trafficking unit to submit a report on missing persons quarterly. 
  • All the states must arrange shelters for the missing persons who have been found but not recognised by anyone.  

Landmark judgements on kidnapping 

Thakori Lal D. Vadgama v. State of Gujarat (1973)

Facts of case

In this case, a girl named Mohini who was 15 years of age was kidnapped and taken out of the lawful guardianship of her father. The accused in his previous conduct encouraged her to leave her father on the promise that he would protect her and give her shelter.

The issue involved in the case

Whether the accused or his conduct amounts to the offence of kidnapping?

Judgement of the Court

The Hon’ble Supreme Court held that the girl’s action of leaving her father’s house was a result of inducement by the accused. Though, it was not his immediate conduct but previous actions which forced the girl to do so. Thus, it was observed that he cannot take any defence and was held liable for the offence of kidnapping. 

Nemai Chattoraj v. Queen Empress (1900)

Facts of the case

In this case, ‘X’ took a girl from her husband’s house and kept her in his own house for 2 days. Another person, ‘M’ took her to his own house for 20 days and then changed the place to ‘Y s’ house and finally landed her in Calcutta.

Issue involved in the case

Whether the offence of kidnapping has been committed?

Judgement of the Court

In this case, ‘Y’ was not held liable for kidnapping the girl. The Calcutta High Court here laid down the facts as to when the act of taking away is completed. The act in this case, was completed when the girl was taken out of the custody of her husband who is her lawful guardian and Y had no role to play in this situation. It was also held that “taking away” is not a continuous act. 

S. Varadarajan v. State of Madras (1964)

Facts of the case

In this case, a 2nd year B.Sc. student named Savitri, and the accused became good friends because they were neighbours. However, one day Savitri left her father’s house and called the accused to meet her at a particular place at a specific time. On reaching the place, the accused took her shopping and other places and finally to the registrar’s office for court marriage. They married there and lived as husband and wife thereafter. The girl was not induced but the proposal of marriage came from her side. The father on the other hand lodged an FIR against the accused for kidnapping his daughter who is a minor. When the accused was arrested he contended that he did not kidnap the girl but she accompanied him out of her own will and desire. 

Issue involved in the case

Is the accused guilty of kidnapping the minor girl?

Judgement of the Court

The Supreme Court observed that there is a difference between ‘taking’ and  ‘allowing a minor to accompany’. It was held in this case that when a girl is about to reach the age of majority some sense of maturity and understanding of her acts and conduct is known to her. She is not of such a tender age that she cannot understand the consequences of leaving her father’s house. It must also be proved that the accused had actively participated in inducing the girl to leave her house and accompany him which was missing in this case. The accused cannot be held guilty only on the ground that after going at her own will, he took her to different places and married her. 

Queen v. Prince (1875)

Facts of the case

In this case, a girl lied about her age to the accused and he bona fide believed her age to be above 16 years and took her out of possession of her father. 

Issue involved in the case

Whether the accused is liable for the offence of kidnapping.

Judgement of the Court

It was held that the bonafide belief of the accused that a girl is a major is no defence to the offence of taking a minor person out of possession of a lawful guardian under Section 55 of Offences Against Person Act, 1861 until and unless she is old enough to give valid consent. Thus, the accused was held guilty of taking an unmarried girl out of possession of her father and the conviction was upheld. 

R. v. Hibbert (1869)

Facts of the case

In this case, a person was charged under Section 55 of the Offences Against Persons Act, 1861 for taking a girl out of possession of her father. He took the girl to a place, seduced her and left her somewhere else. The fact that he did not know that the girl was under the possession of her father was not known to the accused, which shows that he did not intend to kidnap her as he had no constructive knowledge about the lawful guardian. 

Issue involved in the case

  • Whether the act of the accused amounts to kidnapping? 
  • Whether he knew about lawful guardians? 

Judgement of the Court

The court held that the person did not inquire about the guardianship and thus must be held liable. The fact that he did not have any constructive knowledge about the lawful guardian is no defence and is a mistake on his part and so he cannot escape from being guilty. 

Other forms of kidnapping

S.no. Offence Section 
Kidnapping for the purpose of beggingSection 363A
Kidnapping to murderSection 364
Kidnapping for ransomSection 364A
Kidnapping or abducting with intent to secretly or wrongfully confine a person Section 365
Kidnapping a woman to force/compel her to marriage Section 366
Procuration of a minor girlSection 366A
Kidnapping to subject a person to grievous hurt Section 367
Wrongfully keeping a kidnapped person in confinementSection 368
Kidnapping a child under ten years of age to steal from its personSection 369
Importation of girls from foreign countries.  Section 366B

Abduction (Section 362 IPC)

  • It means taking away a person using fraud or force. Section 362 in The Indian Penal Code deals with abduction. 
  • It is an auxiliary act and is not punishable unless accompanied by any other act or offence. 
  • A person abducted may be murdered and then the Section is applied. 
  • No force or deceit on the person abducted means no abduction. 

Difference between kidnapping and abduction 

Differentiating point Kidnapping Abduction 
Provision Section 361 IPC Section 362 IPC 
Meaning Taking a person (minor or person with an unsound mind) out of reach or keeping a lawful guardian. Taking away a person using force. 
Means The means used are irrelevant.Force, fraud, deceit, misrepresentation, etc. 
Consent ImmaterialThe free and voluntary consent of the person abducted is accepted. 
Intention of accused Immaterial Important and determines guilt.
Type of offence Substantive offence and punished under Section 363 IPC.Auxiliary offence and is not punished until and unless there is an intention to commit any other offence as well. 
Continuation It is not a continuing offence. Continues until the person abducted is taken to another place. 
Taking or enticing away Necessary The question of taking or enticing does not arise. 

Conclusion 

The offence of kidnapping and its aggravated forms have been clearly defined in the Indian Penal Code, 1860 along with its punishment. Section 363 of the Code deals with the punishment of kidnapping defined under Section 360 and 361 of the Code, i.e., kidnapping from India and kidnapping from a lawful guardian. It is a bailable, cognizable and non-compoundable offence, triable by a Magistrate of First Class. The punishment includes imprisonment upto 7 years which can either be simple or rigorous along with a fine. In simple imprisonment, the person is not subjected to hard work, unlike rigorous imprisonment where a person is subjected and expected to do a lot of rigorous and hard work. However, the offence of kidnapping differs from that of abduction based only on the means used to commit the crime. In abduction force or deceit is used to take away a person whereas means are irrelevant in a kidnapping. Abduction is an auxiliary offence which means that it is not punished unless another crime is committed in furtherance. For example, a person is abducted to commit the crime of rape. 

Frequently Asked Questions (FAQs)

What are the two types of kidnapping?

The 2 types of kidnapping are kidnapping from India and kidnapping from lawful guardians as given under Section 360 and 361 respectively of IPC. 

What are the ingredients of Section 360 IPC?

The ingredients are as follows:

  • Convey any person outside the limits or territories of India
  • It must be without the consent of the person or the person legally permitted to give consent on his behalf. 

What are the ingredients of Section 361 IPC?

The ingredients are:

  • Taking or enticing a minor or person with an unsound mind.
  • The person must be under the age of 16 years. 
  • It must be done out of the keeping of lawful guardians. 
  • Without the consent of the guardian. 

What is the punishment of kidnapping?

The punishment for the offence of kidnapping is given under Section 363 IPC. It includes imprisonment upto 7 years which can be either simple or rigorous along with fine. 

Is the offence of kidnapping bailable or non-bailable?

The offence of kidnapping is cognizable, bailable and triable by a Magistrate of First Class.

References 


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