This article is written by Shefali Chitkara. This article gives a brief overview of kidnapping and its essential ingredients, with a focus on the punishment for such an offence as mentioned in Section 363 IPC, by covering important landmark and recent judgements and illustrations to explain the same.
It has been published by Rachit Garg.
Table of Contents
Introduction
Every person has a right to life and personal liberty under Article 21 of the Constitution, and no one can forcefully and without that person’s consent be made subject to or in control of some other person. This will be considered an offence affecting the human body and the same is mentioned under Chapter XXVI of the Indian Penal Code, 1860. The offence of kidnapping is given under Sections 360 and 361 of the IPC, and the same is made punishable under Section 363 IPC. The same, when done along with other offences has also been mentioned and made punishable under Sections 363A, 364, 364A, 365, 366, 366A, 366B, 367, 368, and 369 of the IPC.
As per Schedule 1 of CrPC, this offence has been classified as cognizable, bailable, and triable by First class magistrate. The main purpose of including these provisions in the IPC is to protect the personal liberty of the citizens, primarily for the protection of children from being used in illegal or immoral activities. The word “kid” stands for a child, and “napping” means stealing.
Essentials of crime under Section 363 IPC
Section 359 states that there are two kinds of kidnapping that have been recognised by our Indian legal system, i.e., kidnapping from India (Section 360) and kidnapping from lawful guardianship (Section 361). Section 18 of the IPC defines “India” as the territory of the whole of India, excluding Jammu and Kashmir. The question of punishment under Section 363, IPC, arises when the following ingredients of Sections 360 and 361 are fulfilled:
Kidnapping from India- 360 IPC
- Victim to be residing in India when an offence has been committed,
- Taking the victim outside India,
- Kidnapping has been done without the consent of the person kidnapped or the one who was legally authorised to consent on behalf of the victim.
Kidnapping from lawful guardianship- 361 IPC
- Victim is a boy below 16 years of age or a female below 18 years of age or any other person of unsound mind,
- The victim was in the custody of a lawful guardian,
- There must be a taking or enticing of such a minor or a person of unsound mind.
- Kidnapping is to be done without the consent of such guardian of a minor or the person of unsound mind.
The explanation to this Section clarifies the scope of a “lawful guardian,” i.e., who can be considered a lawful guardian of a child or a person of unsound mind. It is the one who is lawfully entrusted for care and custody of such a child or any other person of unsound mind.
Nature of crime under Section 363 IPC
The crime that is made punishable under Section 363 is a type of crime committed against the body or person of an individual who is taken against his/her will outside India or anywhere from the lawful guardian if he/she is a child or person of unsound mind. The act is made punishable in order to protect the rights of the people under Article 21 of the Constitution.
As per the First Schedule of the CrPC, the offence of kidnapping is cognizable, and if the police come to know about such an offence, they can arrest the accused person without a warrant. The same is true for a bailable offence i.e., bail can be granted, but kidnapping, when done in an aggravated form, has been made non-bailable.
Further, the offence of kidnapping is triable by any magistrate, and the punishment prescribed for it under Section 363 is expandable up to 7 years and with a fine.
Importance of consent under kidnapping
The offence of kidnapping becomes punishable under Section 363 IPC only when such an act is done without the consent of that person or any lawful guardian. The act becomes an offence when it involves mens rea and has been done after fulfilling the essential elements, as have been mentioned above. It should be noted that in Section 360, the consent of the victim matters, whereas in Section 361, the consent of the child who is the victim does not matter, and his consent will make no sense, thereby making the act liable under Section 363 when the consent is not taken from the lawful guardian of the child.
To make the word “consent” more clear, an exception has also been added to Section 361, which says that if an act has been done in good faith by any person who believes himself to be the father of an illegitimate child or to be a lawful guardian of a child, then it will not be covered under this Section. However, it does not cover situations wherein an act is committed with an immoral or unlawful purpose.
Punishment for kidnapping under Section 363 IPC
If an offence has been committed under Section 360, Kidnapping from India, or Section 361, Kidnapping from a lawful guardian, it can be made punishable under Section 363. The person who has been kidnapped shall be punished with simple or rigorous imprisonment, which may extend to seven years, and will also be made liable for a fine.
Various other strict punishments are mentioned for aggravated forms of kidnapping, which may even extend to the death penalty as given under Section 364A when kidnapping is done for ransom. The aggravated forms of kidnapping as given under Sections 363A to 369 of the IPC have been enumerated below:
Aggravated forms of kidnapping
| Section | Title | Punishment |
| 363A | Kidnapping or maiming a minor for begging | Imprisonment may extend to ten years and a fine |
| 364 | Kidnapping or abduction with the object to murder | Imprisonment for life or rigorous imprisonment may extend to ten years and a fine |
| 364A | Kidnapping and abduction of a person for ransom | Death or imprisonment for life and a fine |
| 365 | Kidnapping and abduction of a person with the intention of secretly and wrongfully confining him | Imprisonment may extend to seven years and a fine |
| 366 | Kidnapping or abduction of a woman with the intention of forcing her and compelling her to marry | Imprisonment may extend to ten years and a fine |
| 366A | Procuring by inducing any girl below 18 years of age for illicit intercourse | Imprisonment may extend to ten years and a fine |
| 366B | Importing a girl below 21 years of age from a foreign country to India with the intention of compelling her to illicit intercourse | Imprisonment may extend to ten years and a fine |
| 367 | Kidnapping or abducting someone with the intention of subjecting that person to grievous hurt or to subject that person to slavery | Imprisonment may extend to ten years and a fine |
| 368 | Wrongfully concealing or keeping a person in confinement after kidnapping or abduction of that person | Imprisonment may extend to seven years and a fine |
| 369 | Kidnapping and abduction of a child under the age of ten in order to steal the property of that child | Imprisonment may extend to seven years and a fine |
Important case laws
S. Varadarajan v. State of Madras (1965)
Facts of the case
In this case, the girl who was about to reach the age of majority and the accused were neighbours and became good friends. The girl used to call the accused person to meet her, and she was the one who proposed to the accused for marriage. They got married, but the father of the girl registered an FIR against the accused.
Issue involved
Whether the accused can be made liable for kidnapping from lawful guardianship?
Judgement
The Supreme Court has laid down the meaning of “taking” or “enticing” in this case. By looking at the facts of the case, it cannot be said that the accused in any way has encouraged the girl to leave her father’s home or has enticed or taken her away, as the girl has a sufficient sense of maturity and is not of such a tender age that she cannot understand the consequences of her act. It could not be proved that the accused had actively participated in inducing the girl, and therefore, he cannot be made liable for kidnapping.
R v. Prince (1875)
Facts of the case
In this case, a minor girl told the accused that she was a major, and thereby believing it to be true, he took her out of her father’s possession with a bonafide belief.
Issue involved
Whether the accused is liable for kidnapping from lawful guardianship?
Judgement
The Court has held that bonafide belief can be no defence to the offence of kidnapping and that the consent of the minor does not matter in the case of kidnapping from lawful guardianship; therefore, the Court upheld the conviction of the accused for kidnapping.
State of Haryana v. Raja Ram (1973)
Facts of the case
In this case, the victim was a girl of an unsound mind. Her father acted in the capacity of her lawful guardian. A man induced her to leave her father’s house and asked her to stay with him. He also started texting that girl after some time. The respondent helped that person and asked the girl to come to his house first. When the girl came to him, he took her to that person.
Issue Involved
Whether the respondent is guilty of an offence under Section 361 IPC?
Judgement
The Hon’ble Supreme Court has held that the provisions of kidnapping have been made for the protection of children and persons of unsound mind. The consent of the girl in such cases is immaterial, and thus, the respondent was made liable for kidnapping from lawful guardianship.
Thakorlal D Vadgama v. State of Gujarat (1973)
Facts of the case
In this case, there was a minor girl named Mohini, and she was under 18 years of age. The accused encouraged her to leave his father’s home and even promised to provide her with shelter and protect her always. He was successful in taking her away from her father’s lawful guardianship.
Issue involved
Whether the conduct of the accused and the act done in consequence amount to kidnapping?
Judgement
The Hon’ble Supreme Court has held that the act resulted from the inducement of the accused, and he was the one who forced the girl to do the same. Therefore, the accused was made liable for kidnapping.
Recent Case law
Issub Khan v. State, Thr. P.P. and Another (2023)
Facts of the case
In this case, the victim was a girl who was seventeen and a half years old and had accompanied the accused of her own free volition since their parents did not like their friendly relations. The girl eloped with the accused to Mumbai, where the accused was arrested. The accused was convicted by the trial court for the offence of Kidnapping from Lawful Guardianship with rigorous imprisonment of three years and a fine of Rs. 50,000. Subsequently, this application was filed to suspend the sentence and grant him bail.
Issue involved
Whether the sentence granted by the trial court for kidnapping can be suspended and the accused be granted bail?
Judgement
The High Court of Bombay observed that the trial court had failed to consider the essentials of the offence of kidnapping. The aspect of enticing or taking away the victim has been overlooked by the Trial Court in the impugned order. It could not be proved that the accused had either enticed or taken away the victim; therefore, the sentence was suspended and the accused was released on bail.
Conclusion
It can be said that the scope of the offence of “kidnapping” has been kept wide enough to cover various other menaces or acts in order to make them punishable, protect the liberty of citizens, and preserve the spirit of the Constitution. It was essential to recognise and specifically add the offences of kidnapping and abduction in order to preserve the aim with which Article 14 of the Constitution has been inserted.
With the realisation of the reasons for kidnapping and abduction, the drafters have added the aggravated forms and made them punishable as well, like kidnapping for murder, ransom, begging, etc. With the growth of society, the amendments should be considered to increase the scope of this offence and include other acts of restraint within its ambit, whether in marriage or other recognised relationships. Further, the age should also be reconsidered, considering the developing minds of the children.
Frequently Asked Questions (FAQs)
What are the two types of kidnapping?
The two different types of kidnapping mentioned under Sections 360 and 361 of the IPC are Kidnapping from India and Kidnapping from Lawful Guardianship.
Which report has suggested amendments to the definitions of kidnapping and abduction?
The 42nd Report of the Fifth Law Commission has suggested amendments in the definitions of kidnapping and abduction.
Which Section deals with kidnapping under IPC?
Section 359 tells about the two different kinds of kidnapping, and Sections 360 and 361 further talk about those two kidnappings, i.e., Kidnapping from India and Kidnapping from Lawful Guardianship.
What is the maximum punishment for kidnapping under Section 363 IPC?
The maximum punishment that can be given under Section 363 of the IPC is seven years of imprisonment.
What is the difference between kidnapping and abduction?
In the offence of kidnapping, an age limit for children has been prescribed, whereas no such age limit is mentioned for abduction. Punishment for kidnapping is mentioned in the IPC, whereas abduction is not punishable unless done with the intent to commit some other offence.
References
- https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-363-punishment-for-kidnapping
- https://www.livelaw.in/tags/section-363-ipc
- https://www.barandbench.com/topic/section-363-ipc
- https://www.myadvo.in/bare-acts/indian-penal-code-1860/ipc-section-363/
- https://blog.ipleaders.in/all-about-section-363-ipc/
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