This article has been written by Ms, Riddhi khanna , a 1st year BA LLB student from new law college ,Bhartiye Vidya Peeth New Law College , Pune.
In this article, we will discusses the provisions regarding kidnapping enshrined in Section 359 to 369 of the Indian Penal Code, 1860.
These sections define and provide punishments for various types of kidnapping offenses.
Though, Indian laws prohibit abduction and kidnapping, since 2005, According to the National Crime Records Bureau (NCRB), in 2019, a total of 105,734 kidnapping and abduction cases were reported in India, which is an increase from 2018. Out of these cases, 43,536 were related to the kidnapping of women, and 19,165 cases were related to the kidnapping of children.
Kidnapping for ransom is a prevalent type of kidnapping offense in India, where the perpetrators demand money in exchange for the release of the victim. In some cases, the kidnappers may also subject the victim to physical or sexual abuse or force them into labor or prostitution.
KIDNAPPING
Kidnapping generally refers to the act of taking or enticing away a person by force, deception, or other unlawful means, with the intention of depriving them of their liberty or holding them against their will. Kidnapping can occur in various contexts, such as for ransom, extortion, forced marriage, human trafficking, or other illicit purposes.
The word kidnapping has been derived from the word; “kid” which in English means “a child”, and “napping” which means “to steal”. Therefore, the literal meaning of kidnapping stands to be stealing a child.
kidnapping is classified into two categories under Section 359 of the Indian Penal Code (IPC), and it is further defined under Section 360 and 361 of the IPC.
Let’s understand these sections better.
DEFINITION
Section 359 of the IPC defines kidnapping, as the act of taking or confining a person against their will, with the intention of causing harm, ransom, or other illegal purposes.
The section categorizes kidnapping into two types – kidnapping from India ( section 360 )and kidnapping from lawful guardianship.( Section 361)
Let’s look into them in detail.
KIDNAPPING FROM INDIA
Section 360 of the Indian Penal Code (IPC) deals with the offense of “kidnapping from India.” According to this section 360 , if any person takes or entices away another person from
India without their consent or the consent of a person legally authorized to consent on their behalf, then it amounts to the offense of kidnapping from India.
In simpler terms, if someone takes or carries away a person from India without their consent or the consent of a person authorized to consent on their behalf, then it amounts to kidnapping from India under Section 360 of the IPC.
ILLUSTRATION
Suppose a young woman named Priya was offered a job in Dubai by a recruitment agency. However, when she arrived in Dubai, she was taken to an isolated place and forced into prostitution against her will. Her passport was taken away, and she was not allowed to leave. In this case, the recruitment agency and anyone involved in taking Priya out of India without her consent have committed the offense of kidnapping from India under Section 360 of the IPC.
KIDNAPPING FROM LAWFUL GUARDIAN
Section 361 of the IPC defines “kidnapping from lawful guardianship” as the act of taking or enticing a minor or a person of unsound mind out of the keeping of a lawful guardian without the consent of such guardian.
section 361 of the IPC defines a minor as a person below the age of 16 years (for males) and 18 years (for females),
INGREDIENTS
The following are the ingredients of Section 361:
- Taking away or enticing of a minor or a person of unsound mind
- Such minor must be under 16 years of age if a male and under 18 years of age if a female
- The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
- The taking or enticing must also be without the consent of the guardian
ILLUSTRATION
A man takes a six-year-old girl from her grandmother’s house without the permission of her parents. He convinces the child to come with him by offering her candy. Later, when the parents come to know about the incident and lodge a complaint with the police, it is revealed that the man took the girl away with the intention of keeping her away from her lawful guardians.
According to Section 361, ‘Man ’ has committed the offence of Kidnapping from lawful guardianship.
EXCEPTION
There is an exception to Section 361 of the Indian Penal Code. According to the exception, the person who takes or entices the minor away may be able to prove that they did so in good faith, for the purpose of protecting the minor’s person from imminent danger.
In such cases, the accused will not be guilty of kidnapping from lawful guardianship. However, the burden of proving such good faith lies with the accused. It is important to note that this exception is applicable only in cases where the person taking the minor away does not have the legal authority to do so. If the person taking the minor away has the legal authority, then the exception does not apply.
Age Of The Minor
The age of minority under Section 361 of the Indian Penal Code is uniform across all states in India,that is
A male under the age of 16 years, A female under the age of 18 years.
except for Manipur, where it has beenamended by the state legislative assembly.
The age of minority for females has been reduced to 15 years under Section 361, as per the Manipur Legislative Assembly’s amendment in 2012. Therefore, taking away a female below the age of 15 years from the lawful guardianship without consent would be considered as kidnapping from lawful guardianship under Section 361 of the IPC in Manipur.
Moreover, in Lata Singh v. State of U.P. (2006) . In this case, a 17-year-old girl, Lata Singh, had eloped with a man of her own choice and refused to return to her parents’ house. Her father filed a complaint with the police under Section 361 of the IPC, alleging that his daughter had been kidnapped from lawful guardianship.
The Supreme Court of India, in its judgment, held that if a minor girl, who is 17 years old, is mature enough to understand the consequences and rationale behind her action, and if she leaves the guardianship of her parents to live with a boy who has not subjected her to any kind of pressure, inducement, or coercion, then it cannot result in an offense under Section 361 of the IPC and is not punishable.
OBJECTIVE
The primary objective of this section is to safeguard minors and individuals with unsound mind from being exploited or harmed. It aims to protect the rights of lawful guardians who are entrusted with the responsibility of caring for and having custody of their wards.
Therefore, a key element of this section is the absence of consent from the parent or guardian, indicating that the offense involves taking or enticing away a minor or person of unsound mind without proper authorization. The purpose of this section is to uphold the legal authority of guardians and prevent any unauthorized actions that could jeopardize the well-being and safety of minors or individuals with unsound mind.
TAKING AND ENTICING
Section 361 of the Indian Penal Code (IPC) stipulates that an individual who takes or entices a minor who is under the age of sixteen or a person of unsound mind away from their lawful guardian without the guardian’s consent will be guilty of the offense of kidnapping from lawful guardianship.
The term “taking” refers to physically removing the minor or person of unsound mind from the lawful guardian’s custody, while “enticing” refers to luring or persuading the minor or person of unsound mind to leave their guardian’s care.
Section 362: Abduction
This section deals with the offense of abduction, which involves taking away a person by deceit or force, intending to compel them or any other person to marry against their will or to be subjected to unlawful restraint.
Section 363: Kidnapping for ransom, etc.
This section deals with the offense of kidnapping a person for ransom or to extort property or any other valuable security.
Section 366: Kidnapping, abducting, or inducing woman to compel her marriage, etc.
This section deals with the offense of kidnapping, abducting, or inducing a woman to marry against her will, to be forced into illicit intercourse, or to be compelled to do any illegal act.
Section 369: Kidnapping or abducting child under ten years with intent to steal from its person
This section deals with the offense of kidnapping or abducting a child under ten years of age with the intention of stealing from their person.
It’s important to note that these sections have various provisions and punishments depending on the severity and circumstances of the offense, and legal advice should be sought for accurate interpretation and application of the law.
Kind of offence
Kidnapping from guardianship is a substantive offence, punishable u/s 363, IPC.
PUNISHMENT FOR KIDNAPPING
Section 363 of the Indian Penal Code (IPC) deals with the punishment for the offense of kidnapping. It states that whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Kidnapping is a substantive .Some specific punishments as provided for kidnapping under the Indian Penal Code are:
- Kidnapping for purpose of begging- section-363A, punishment- 10 years + Fine
- Kidnapping in order to murder- section 364, punishment- 10 years + Fine
- Kidnapping for ransom- section 364A, punishment 10 years + Fine
- Kidnapping with intent to wrongfully confine a person- section 365, punishment 7 years + Fine
- Kidnapping so as to compel a woman to marry- section 366, punishment 10 years + Fine
- Kidnapping so as to subject a person to grievous hurt- section 367, punishment 10 years + Fine
- Kidnapping a child under 10 years of age in order to steal from a person- section 369, punishment 7 years + Fine
“When a punishment of “imprisonment of either description” is prescribed in the Indian Penal Code, ” it means that the offender may be subjected to either of the two types of imprisonment: simple imprisonment or rigorous imprisonment.
*.Simple imprisonment means that the offender will be confined to a prison cell and will not be required to perform any hard labor during the term of imprisonment. The offender will be allowed to remain idle and will only be required to serve out the term of imprisonment.
- Rigorous imprisonment, on the other hand, means that the offender will be required to engage in hard labor during the term of imprisonment. This type of imprisonment is more severe than simple imprisonment and is typically reserved for more serious crimes. During the term of imprisonment, the offender will be required to work hard and perform tasks such as breaking rocks, making handicraps, or engaging in other physically demanding activities.
Case Laws
There have been several landmark cases in the history of India related to kidnapping under the Indian Penal Code. Here are a few notable ones:
- R vs Brij Nandan Singh (AIR 1957 SC 686): This case is significant because it established that the act of kidnapping does not require any physical confinement of the victim. It held that the act of forcibly carrying away a person from one place to another without that person’s consent amounts to kidnapping, even if the person is not physically confined.
- State of U.P. vs Ramesh Prasad Misra (1996): In this case, the Supreme Court of India held that kidnapping with the intent to force a woman to marry against her will constitutes an offense under the Indian Penal Code. It established that the consent of the victim is essential in such cases, and the offense of kidnapping is committed even if the victim is above the age of 18 years.
CONCLUSION
The Indian Penal Code recognizes the gravity of the crimes of kidnapping and abduction and has put in place strict provisions to protect the freedom and rights of individuals, especially children, against these heinous acts. The sections 359 to 369 provide a comprehensive legal framework for dealing with such crimes, and their strict enforcement is essential to prevent them from spreading and endangering more lives. It is also critical to provide the necessary support to the victims of such crimes, including safe release, medical care, psychological counseling, and legal assistance, to help them recover and move on from the traumatic experience. As a society, we must work together to prevent these crimes and ensure that the children and vulnerable members of our society are safe and protected.