This Article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala. In this article, she discusses the provisions regarding kidnapping and abduction, enshrined in Section 359 to 374 of the Indian Penal Code, 1860.
Though, Indian laws prohibit abduction and kidnapping, since 2005, more than 100,000 kidnapping and abduction cases have come up in India. People have continued to take advantage of the tender age of minors to kidnap them and exploit and force them to perform horrendous acts. Such offences are an attack on the liberty and freedom of citizens and must be prevented.
Section 359 to 374 of Indian Penal Code, 1860 provides for punishments for these offences. In this article, we will discuss these provisions in detail, understand the essentials of kidnapping and abduction, discuss the difference between kidnapping and abduction and also discuss the provisions regarding forced slavery, labour and sale and purchase of minors for illegal purposes.
Kidnapping means taking away a person against his/her will by force, threat or deceit. Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes etc. Kidnapping is classified into two categories in Section 359 of the Indian Penal Code and defined in Section 360 and 361 of the Indian Penal Code. Let’s understand these sections better.
As per Section 359 of the Indian Penal Code, Kidnapping is of two types:
- Kidnapping from India,
- Kidnapping from lawful guardianship.
These two types are explained in Section 360 and 361. Let’s look into them in detail.
Kidnapping from India
Section 360 explains kidnapping from India. According to section 360, if any person takes a person beyond the limits of India against the consent of that person or against the consent of someone who is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India is committed.
Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.
Kidnapping from lawful guardian
Section 361 explains kidnapping from lawful guardianship. According to this section, if a person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then that person commits the offence of kidnapping from lawful guardianship.
Thus, the essentials of kidnapping from lawful guardianship are:
Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother, ‘Z’. ‘B’ ‘convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘B’ has committed the offence of Kidnapping from lawful guardianship.
Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the person who is committing the offence is ‘B’ as he is taking A away from ‘Z’ against Z’s consent.
This section also mentions an exception. It says that it does not result in the crime of kidnapping from lawful guardianship, if the person in good faith, i.e, honestly with reason, believes that:
- He is entitled to the lawful custody of the child; or
- He is the father of an illegitimate child.
Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate son, then his act of convincing him to come to his house without his mother’s consent would not result in kidnapping from lawful guardianship.
State of Haryana v. Raja Ram, AIR 1973 SC 819
To understand this better let’s look at the case of State of Haryana v. Raja Ram.
‘J’ had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl’s father forbade ‘J’ from coming to their house and in response, ‘J’ started sending her messages through the respondent.
- One day, the respondent went to the girl and asked him to come to his house and later sent his daughter to bring her. At his house, the respondent told her to come to his house at midnight so that she can be taken to ‘J’.
- That night when she went to his house, the respondent took her to ‘J’.
Whether the respondent was guilty of the offence under section 361 of IPC?
The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:
- Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.
- The consent of a child is completely immaterial and only the guardian’s consent is relevant to decide whether the offence was committed or not.
- ‘Taking’ as mentioned in the Section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of minor to be taken away from his/her lawful guardian.
- In this case, the respondent was held guilty under section 361 as it was the respondent’s action which persuaded the prosecutrix from going out of her father’s keeping, against her father’s wishes.
Age of the Minor
Section 361 of the Indian Penal Code clearly states that minor is:
- A male under the age of 16 years,
- A female under the age of 18 years.
However, it must be highlighted here that in Manipur, the age of 18 years of females in section 361 is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians in Manipur, it would not result in kidnapping from lawful guardianship.
Moreover, the Allahabad High Court in Smt Suman and another. V. State of Uttar Pradesh gave a peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature enough to understand the consequences and rationale behind her action, leaves the guardianship of her parents to live with a boy who has in no way subjected her to any kind of pressure, inducement etc, i.t cannot result in an offence under section 361 of IPC and is not punishable.
Taking and Enticing
Section 361 mentions whoever ‘takes or entices’ a minor away from his/her guardian against the guardian’s will, is punishable with the offence of kidnapping from lawful guardianship.
Let’s understand the meaning of taking and enticing by looking at a few case laws.
Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416
The first case we will be looking into is Biswant Mallick v. State of Orissa
- Kalyani, had been kidnapped by the accused/petitioner Biswant Mallick when she had gone out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to Jeypore.
- Her father lodged a complaint at the police station. During the investigation, she was found and rescued from the house of a relative of the accused.
- The petitioner was held guilty and sentenced to two years rigorous imprisonment and a fine of Rs. 100.
- On the petition, the counsel for the accused argued that the girl had attained the age of discretion (age to take decisions for herself and understand the consequences of her act) as she was 17 years, 8 months and 7 days old and thus kidnapping did not take place.
Clarity of Section 361 and explanation of taking and enticing as given in the section.
Court clarified the difference between take and entice as given in section 361 of the Indian Penal Code.
- The court said that the word ‘take’ means cause to go or to escort or to get into possession. This means that in taking, the desire of the person being taken to be taken is missing.
(To understand this better let’s look at an illustration. If ‘A’ is taken away against her own consent, it is taking)
- Enticing, on the other hand, is the act of the accused which induces the person kidnapped to go to the kidnapper, by his/her own wish. It is exciting hope or desire in a person to be taken away. Enticement is completely dependant upon the mental state of the person when the inducement happens. It is not confined to a single form of allurement and any act which is enough to allure a minor girl is enough to constitute allurement.
- The court further clarified that mental attitude is immaterial ( minor’s willingness or unwillingness) is not relevant for taking. However, in enticement, the kidnapper convinces the minor, through allurement, to do something he/she would otherwise not do.
- It was also held that force or fraud is not necessary to constitute enticement or taking away.
S Varadarajan v. State of Madras, AIR 1965 SC 942
The meaning of taking was further clarified by the court in the case S Varadarjan v. The State of Madras.
- Varadarajan, the appellant was living next to Savitri’s (a minor girl) house. They talked every day and became good friends. One day, Savitri’s sister, Rama caught them talking and asked her about it. Savitri told her that she wanted to marry him. Rama told her father about this who inquired Savitri. She started crying but didn’t reply to her father’s question. Consequently, he decided to send her to a relative’s house, away from Varadarajan.
- Next morning, Savitri called the appellant and told him to meet her on a certain road. They met and she sat in his car. They both went to the house of P.T. Sami with a view to take him as a witness to their marriage. They went to the Registrar’s office where they both got their marriage registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.
- On the morning of the day she went away, her father, Natraj realised she was missing and tried to find her around the area where they lived. However, all his attempts were futile and he filed a complaint at the police station. The police took up the investigation and ultimately apprehended the appellant at Tanjore.
Whether the essential of ‘taking’ of Savitri was fulfilled or not?
- The court held that where a minor girl leaves the protection of her father to join the accused, knowing and completely understanding the consequences of her act, it cannot be said that the accused has taken her away from the keeping of legal guardian.
- In such case, for the accused to be held guilty, it must be established that the accused induced the minor or actively participated in developing such intention in her mind, either immediately prior or at some prior stage of her leaving her father’s protection.
- The accused cannot be held guilty simply because after leaving her guardian’s house willingly she joined the accused and the accused encouraged her to not return to her guardian’s house by taking her to different places.
Punishment for Kidnapping
Section 363 of the Indian Penal Code lays down the punishment for both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship).
The punishment prescribed in this section is :
- Imprisonment of either description which can extend up to seven years, and
Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal Code:
- Simple Imprisonment: This means that during the imprisonment, the prisoner is idle and is not required to do any hard labour.
- Rigorous Imprisonment: This means that during the imprisonment, the prisoner must engage in hard labour.
Before we move forward, it is important to mention an exception laid down in the case of Chadrakala Menon and another v. Vipin Menon. In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated. While Vipin Menon filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that Vipin Menon was the natural guardian of the child
Section 362 of the Indian Penal Code defines abduction. It says that if a person compels another person to go from one place, or induces some person to go from one place, then the offence of abduction is committed.
Thus, Abduction is an offence in which a person is moved from one place, against his/her will by forceful compulsion or by use of deceitful means. Clearly, the essentials of abduction are:
‘I’llustration: ‘B’ slaps and hurts ‘A’ and tells her that if she would not leave with him, he would kill her. In this case, ‘B’ commits the offence of abduction as he uses forceful means to take ‘A’ away from her house.
Here, ‘A’ is the person abducted and ‘B’ is the criminal; threatening ‘A’ to kill her and slapping and hurting her amounts to use of force, and taking her away from her house established the essentials of taking a person away from a particular place.
Let’s understand all these essentials in depth.
Section 362 says that abduction can happen in two ways. One of these is force. In abduction, a person is forced to go from one place to another, against his/her will. The use of force, as mentioned in this section, must be actual, and not just a threat of force to constitute abduction.
In this reference, we can look at the case State of West Bengal v. Mir Mohammad Omar.
- The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do his business without any hindrance or obstructions. But Mahesh did not agree to their demands which led to a fight.
- A few nights later, when Mahesh returned to his house, his sister told him that a few assailants had come before looking for him, and were threatening to hurt him. Scared, Mahesh left to take asylum at his friend’s house for the night.
- Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar is waiting outside for him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a neighbour’s house where he took asylum.
- At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went and lodged a police complaint that very night.
The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.
According to Section 362, the other way abduction can take place is by inducing someone to go from someplace by misleading him/her to do something he/she would not normally do. The scope of inducement here is very wide.
Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offence of abduction.
Let’s look at case law to understand how abductions happen through deceitful means.
To go from any place
For abduction to be completed, it is essential that the person is compelled to go from one place to some other place, either forcefully or by using deceitful means. It cannot be called abduction if the person is not taken to someplace.
Now let’s discuss an important judgement given in the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67. It was held that mere abduction is no offence at all. The guilty and wrongful intention must be present for the offence to be punishable.
For this very reason, IPC provides for different punishments for abduction with different intentions. Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years, abduction with the intention of murder is punishable with life imprisonment etc. Now let’s discuss these specific provisions in detail.
Aggravated forms of Kidnapping or Abduction
Kidnapping or Maiming for Begging
Section 363A of the Indian Penal Code talks about the offence of kidnapping or maiming a minor for begging. It states that:
- If a person kidnaps a minor or obtains custody of a minor, even though he is not his/her lawful guardian, so as to employ the minor in begging, he/she would be liable for this offence. The punishment prescribed in Section 363A of the Indian Penal Code for this is imprisonment up to 10 years and fine.
- Maim means to wound or injure a part of the body so that it is permanently damaged. As per this section, If a person maims a minor so that the minor can be employed in begging, he/she is liable for imprisonment for life and fine.
- The section also states that if a person, not being the minor’s lawful guardian, employs a minor in begging, it will be assumed by the court that such person kidnapped the minor. The person would have the burden of proof to prove that he is innocent.
Section 363 A, itself, defines what begging constitutes as per this provision. It means:
- Asking or receiving alms (money was given to poor people) in a public place for singing, dancing, fortune-telling, performing tricks, selling goods, etc.
- Entering someone’s private place to ask or receive alms.
- Exposing any wound, injury, deformity or disease of oneself, some other person or some animal, for obtaining or extorting alms.
- Using a minor as an exhibit to receive or solicit alms.
Illustration: ‘A’ took away ‘B’, a 12-year-old boy, from his father, without his consent, so as to make him beg on the streets of Delhi. In this case, ‘A’ completed the kidnapping from lawful gu’a’rdianship as soon as he took ‘B’ away from his father. And because it was for the purpose of making him beg on the streets of Delhi, ‘A’ is guilty of the offence under section 363 A of IPC.
Abducting or Kidnapping to Murder
As per Section 364 of Indian Penal Code, if a person is kidnapped or abducted by a person with the intention or knowledge that the person is going to be murdered or is going to be put in danger of being murder, such person is punishable with imprisonment for life or rigorous imprisonment for a term up to 10 years and a fine.
Illustration: ‘A’ takes away ‘B’ from his house to a forest, against B’s consent with the knowledge that ‘B’ would be sacrificed to a deity. ‘A’ is guilty of abduction for murder.
To understand this section better, let’s look at the case of Shri Moni Neog and others v. the State of Assam.
- Sanjay Ghose was the General Secretary of an NGO, working for the welfare of people at Maijuli. As their work started to spread, the members of a banned militant group, United Liberated Front of Assam (ULFA), started to feel unhappy and scared of people losing faith in them, because of their growing dedication for Sanjay Ghose’s NGO. They suspected Sanjay Ghose to be a RAW Agent and developed hostility towards him.
- One afternoon, he was stopped by two of the accused and taken to a house despite his protest. He was taken to a house where some more militants joined him. He was then taken on a boat to another house, along with more militants, all of whom were armed. At night, some people near that house heard gunshots.
- When he didn’t return home for a couple of days, his wife filed a police report. Upon investigation, it was found that he is dead. It was accused that these militants had murdered him.
- The court held that the abductors of Sanjay Ghose had abducted him with the intention to murder him, or at least had the knowledge that he may be murdered or had put him in danger of being murdered,
- It further said whether he was murdered or not is immaterial. What is important is that the abductors did not at any stage gave an indication that they would spare his life.
- As a result, the court convicted the accused and awarded them life imprisonment and a fine of Rs. 2000 each.
Kidnapping for Ransom
Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to that person who he has kidnapped or abducted or detained after kidnapping or abducting in order to compel either the government or some foreign state or any other person to do or abstain from doing an act or pay a certain sum of money. The punishment is death or imprisonment for life, and fine, as mentioned in Section 364A IPC. The essentials of the offence under Section 364A are:
Netra Pal v. State (National Capital Territory of Delhi), 2001
The first case we will discuss is Netra Pal v. State (National Capital Territory of Delhi), in which the court discusses one essential of the offence.
- The appellant Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he had taken the boy along with other boys on a joy ride in a Rickshaw. While he dropped the other boys, he did not drop off Tanu. His mother had thought that Netra Pal would come back with her son in a while. When he didn’t come back, she told his father. He tried to find him around the area where they live, but failed to locate them and filed a police report.
- The police went to the appellant’s village and found him there along with the child. He was apprehended and a letter asking for Rs. 50,000 in ransom was found in his possession.
- What do the words “To pay ransom” stand for – is it enough to show that kidnapping or abduction was done with an intention to extract ransom or is it necessary that such demand must be communicated?
- Whether the letter recovered from the appellant would constitute as demand for ransom?
The court held that mere recovery of the letter assumed to have been written by the appellant demanding Rs. 50000 for the safety and return of the child is not enough to cover “ to pay the ransom” by itself. Demand by a kidnapper is an essential ingredient of the offence because, for the purpose of getting paid ransom, demand must be communicated.
Malleshi v. State of Karnataka (2004)
The next case which we must discuss in this reference is Malleshi v. the State of Karnataka.
- Vijaybhaskar was studying in college and living at his uncle’s place. He used to go to Chitradurga, where his college was, through a bus, along with another friend. One day when he was waiting to board the bus to go back to his house, he was called by a man who told him he knew his father. He further inquired about the college’s fees saying he wanted to enrol his son here. He then led Vijaybhasker to a jeep informing him that his son is there and made him sit in the jeep.
- Then two other men joined him and treated him well till they crossed Chitradurga. Once they did, they enquired about his father’s phone number and told him that they want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver of the jeep told him to run off. He listened to his advice and found out he was in Byrapur village. He informed the villagers who caught hold of the abductors and handed them over to the police.
Whether the alleged demand for ransom was established or not?
The court held that Vijaybhasker has been abducted through deceitful means. They further referred to the case of Netra Pal v. State and said that the difference of fact that the abducted person, in that case, was a child and in the present case is an adult who can look after himself must be mentioned. It was held that in this case, the demand for ransom had been conveyed to the victim and the offence was completed. The court further said that it cannot be a straight jacket rule that the demand for abduction must always be made to the person who is required to ultimately pay it.
Vikram Singh v. Union of India, (2015)
The next case, we will be looking at is Vikram Singh v. Union of India, in which the punishment prescribed in Section 354A IPC was evaluated.
Facts and Issue: The appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in ransom. They had then killed this boy. In this case, the appellants filed a writ petition in the Supreme Court to declare Section 364A inserted in the Indian Penal Code as ultra vires (beyond the legal power) of the Constitution to the extent that the same prescribes death sentence for anyone found guilty. He also said that section 364 A was added only to deal with terrorist-related ransom since kidnapping/ abduction has already been dealt with in the previous section. He further prayed for quashing death sentence given to him under this section.
- The court held that section 364A is very wide. There is nothing which suggests that this section is limited to offences against a foreign state or international governmental organisation, and covers all the “any other person” as well.
- Court also emphasised upon various Indian and foreign judgements to highlight the importance of proportionality of punishment. It held that the job of giving punishment is the job of the legislature, and the court can only intervene when it feels that the punishment is outrageously disproportionate. In section 364A however, when death is concerned the courts do reserve the right to give death penalty or if not required, a lesser punishment of life imprisonment. Hence, it is not ultra vires with the constitution.
Kidnapping or abduction with intent to secret and wrongful confinement
Section 365 of IPC provides for punishing a person who kidnaps or abducts someone with the intention of wrongfully and secretly confining them with imprisonment up to 7 years and fine.
Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such guardian, with the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with the intent of secret confinement, and thus, he is punishable under section 365 of IPC.
Kidnapping or Abduction a woman to compel her for marriage, etc
Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the intention to force her into a marriage or with the knowledge that she would be forced into marriage. It also provides punishment for a person who kidnaps or abducts a person to force her into illicit intercourse or has the knowledge that because of such kidnap or abduction, she would be forced into illicit intercourse.
The punishment prescribed in this section is imprisonment for up to 10 years and fine.
Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to. ‘A’ asked ‘B’ to abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offence under section 366 as he abducted a woman, ‘C’ with the knowledge that would be compelled into marriage.
Minor’s consent to marry her Kidnapper: Is it valid?
To look at if minor’s consent to marry her kidnapper or engage in sexual intercourse with him is enough or not, let’s look at the case of Thakorlal D. Vadgama v. State of Gujarat.
Thakorlal D. Vadgama v. State of Gujarat, 1973
- Mohini’s parents got to know that she had been having sexual intercourse with the appellant and reprimanded her. They also sent a letter to him telling him to stay away from Mohini. She, however, met him again when she had gone to Ahmedabad on a school trip and for two months after that, they kept sending each other letters in which Mohini had complained about her parents ill-treating her and expressed her desire to leave her house.
- Next month, the appellant asked her to meet him at his house and she met him there. He made her write three letters to her father, the appellant and the police superintendent. These letters contained complaints of ill-treatment by her parents and also said that she had taken Rs. 250 from the appellant and was leaving to Bombay..
- He then made her sit in a cars’ dicky and took her away to someplace. Then he had sexual intercourse with her against her wishes. Meanwhile, her father filed a case. Next morning, while investigating police came to his house to search it for Mohini. The appellant hid Mohini in his garage and later told her to run out in the street, where the police found him. On medical examination, no evidence of forced intercourse was found.
Whether or not consent from Mohini absolves the appellant from his crime?
- The court held that in the present case, the appellant got close to the minor girl in the manner of making promises and giving her gifts, like new clothes, etc. He took advantage of this closeness to entice her out of her parent’s guardianship and thus kidnapped her.
- The court further, clarified the legal position with respect to an offence under section 366 of IPC and said that law seeks to protect the minor children from being seduced into illicit activities and also the rights of the guardians towards their children. It clarified that kidnapping can be done by enticing or inducing minor out of the keeping of their guardians. Hence, it was held that Mohini’s acceptance to go with him and have intercourse with him is not enough to absolve him from the offence.
Procuration of Minor Girl
Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl under the age of 18, to go from someplace or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such inducement must be done intentionally or with the knowledge that she will be forced to engage in such acts.
The punishment prescribed for the same is imprisonment for up to ten years and fine.
Kidnapping or Abducting to subject a person to Grievous Hurt
Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person, must be punished with either rigorous or simple imprisonment up to 10 years and fine.
Grievous hurt has been defined in section 320 of IPC. It includes:
- Emasculation (Removal of male reproductive organs),
- Permanently damaging eyesight in any eye,
- Permanently damaging hearing in any ear,
- Causing permanent loss of some joint,
- Permanent disfigurement of face or the head
- Fracture and dislocation of teeth or bone(s)
- Any hurt which endangers the life of a person and causing the sufferer to suffer severe body pain within twenty days of the causation of hurt.
Wrongfully Concealing or Keeping in Confinement a kidnapped or abducted person
Section 368 of the Indian Penal Code provides that if a person knows that a person has been kidnapped or abducted, and wrongfully confides such kidnapped person, would be punished as if he had kidnapped or abducted the person with the intention to keep or confide in him/her.
This section can be better understood by looking at the following case:
Smt. Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201
- The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just born a few hours ago. She took him away by saying that the staff nurse wanted to do the cord dressing of the child.
- When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told the sister-in-charge. She searched the premises for the accused and the child. When she failed to find them the doctor and superintendent of the hospital was informed and they further told the police.
- On investigation, police found the child at the house of Ram Das, who was the tenant of the appellant. At the time of the seizure of child, appellant was lying next to the child and the accused kidnapper was sitting in the same room.The appellant was charged with a punishment of rigorous imprisonment for 5 years under Section 368 of IPC and the accused was charged under Section 363 (kidnapping for murder).
Is the appellant guilty under section 368 of IPC?
- The court dismissed the appeal petition. It explained that to constitute an offence under Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in question must be kidnapped; (2) The accused must know that the person has been kidnapped (3) The accused having such knowledge wrongfully conceals or confines the person.
- In the present case, the first essential was fulfilled when the accused took the 15 hours old child away from his mother, the lawful guardian. The second essential was an inference drawn from the facts of the case and the third essential was evidenced as the appellant made it appear that the child was hers.
Kidnapping or Abducting Child under ten years with the intent to steal from its person
According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to steal any movable property from him/her, will be punished with imprisonment up to 7 years and also fine.
Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal that phone. Here, A is guilty under section 369 of IPC.
Difference between Kidnapping and Abduction
Now that we have understood what kidnapping and abduction are let’s understand the difference between them.
|Provision of law||Section 359 of IPC states the two types of kidnapping. Section 360 defines kidnapping from India, Section 361 defines kidnapping from lawful guardianship.||The definition of abduction is given in Section 362 of IPC.|
|Age of the victim||As per section 360 and 361, the female kidnapped should be under 18 years of age and male kidnapped should be under 16 years of age.||There is no provision which puts a bar on the age of the person abducted, since being a minor is not essential to constitute this offence.|
|Means||In kidnapping, the person is taken away or enticed. The means of doing these is irrelevant to constitute the crime.||In abduction. force, deceit or compulsion is used to take a person from a place.|
|Removal from lawful guardianship||Here lawful guardian refers to a person who is legally authorised to take care of a minor or a person of unsound mind. For kidnapping, it is essential that the victim is taken away from their lawful guardian||In abduction, there is no concept of taking a person away from his/her lawful guardian.|
|Consent of the victim||Consent of the person kidnapped is immaterial, however, the consent of the guardian can be material.||In case the person abducted gives his/her consent, it is considered that there is no offence.|
|The intention of the accused||In kidnapping the intention of the person kidnapping the minor or person of unsound mind is immaterial.||In abduction, intention is essential to determine the guilt of the accused.|
|Nature and Punishment||Since kidnapping is a substantive offence, it’s general punishment is prescribed in section 363 of IPC as imprisonment for a term up to seven years and a fine.||Since abduction is an auxiliary offence, it does not have a general punishment prescribed in the IPC. Rather, the punishment of specific types of abduction is given in different sections of IPC. (As discussed above)|
|Continuity of the offence||Kidnapping is not a continuing offence.||Abduction is a continuing offence because it does not end when a person is moved from a particular place, rather continues with every movement from one place to the other.|
|Completion of the offence||The offence is completed as soon as a person is taken away from the country or from his/her lawful guardianship.||It is a continuing offence and involves forcibly or deceitfully taking a person from one place to another|
Trafficking and Slavery
Section 370 of the Indian Penal Code was recently amended after the Delhi rape case in 2013. Now, it states the definition and punishments of trafficking.
As per this section, if anyone recruits, transports, harbours, transfers or receives a person for the purpose of exploitation commits the offence of trafficking. This is done by :
- Using fraud, deception or abuse of power, or
- Using threats, or
- Using force or coercion, or
- Abduction, or
- Inducement of the person extorted himself or someone who has authority over him.
Exploitation, as mentioned in this section has a very wide ambit, and refers to sexual exploitation, slavery or practices similar to it, servitude or forced removal of organs.
It must also be mentioned that the consent of the victim is completely immaterial for the offence of trafficking.
The punishment for this offence has been given in depth in this Section. These are as follow:
|Trafficking of more than one person||
|Trafficking of a minor||
|Trafficking of more than one minor||
|Trafficking of minor on more than one occasion||
|Trafficking where a police officer or a public servant is involved in trafficking||
Sale or Purchase of Minors for Immoral Purposes
Section 372 of the Indian Penal Code provides that if a person sells or allows hiring of any person under the age of 18 years, with the intention or knowledge that such a person would be used for prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.
Illicit purposes, as mentioned in the section, means sexual intercourse between people who are not married or united by any union recognised in a personal law or custom.
Illustration: ‘A’ is a brothel owner. ‘B’ sells ‘C’ to A for Rs. 1,00,000 so that she (C) can be used as a prostitute. Here, ‘B’ has committed an offence under Section 372 of IPC.
Similarly, Section 373 of Indian Penal Code provides the punishment for a person who buys a minor for immoral purposes. It states that if a person buys or hires or in some other way obtains a person under the age of 18 years, with the intention of using or knowledge that such person would be used for purposes like prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.
Continuing with the above illustration: In that case, ‘A’, the brothel owner would be liable for the offence under Section 363 of IPC as he purchased ‘C’ for Rs. 1,00,000 with the intention of engaging her in prostitution.
Section 374 of Indian Penal Code states the offence of unlawful compulsory labour. As per this section, if a person unlawfully forces some person to provide labour against his will, then he is punished with either simple or rigorous imprisonment for a period of up to one year, or with fine, or with both imprisonment and fine.
Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to 369 go a long way in securing the liberty of people. They give protection to children against kidnapping and abduction. Moreover, they reinforce the rights of guardians to have control over the children who are easily moved and convinced by the words of conspiring adults. The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.
To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.
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