This article has been written by Ms Arundhathi G, a 3rd year BA LLB Student from Bharati Vidyapeeth Deemed to be University, New Law College, Pune.

Introduction 

 Kidnapping, as the word suggests, is the stealing of a child. According to Section 360 of the Indian Penal Code, 1860, there are two types of kidnapping viz. kidnappings from India and kidnappings under legal guardianship. But both species can overlap. Kidnapping can be done to demand a ransom for the release of the victim or other illegal purposes. Robbery may involve bodily harm, leading to the crime of aggravated robbery. 

Scope

 According to the Criminal Code, the crime of kidnapping is broad. According to Sections 359 and 361 of the IPC, there is no territorial jurisdiction for the commission of the offence. In addition, this provision is gender-neutral, ensuring protection for both male and female children. The severity of the law is parish/destination-related and any person involved in aborting or acquiring a minor girl at any time would also come under the ambit of the kidnapping provisions. 

Provisions under the Code

 Section 359: Kidnapping 

 There are two types of kidnapping: kidnapping from India and kidnapping by legal guardianship. But the two types can overlap. For example, “B” abducted the minor son of “A” from the legal custody of “C” (without his consent) and took “A” outside the borders of India. Therefore, in this law, there are 2  provisions- IPC 360 and 361. 

Section 360: Kidnapping from India 

 A person who transports someone outside the borders of India without the consent of that person or someone legally authorized to do so is said to be kidnapping. 

Essentials of sec. 360  

• Transportation of any person beyond the borders of India: The person kidnapped may be an adult or a minor to attract the provisions of this section. The age limit for minors is 16 for boys and 18 for girls. Further, India means the territory of India excluding the State of Jammu and Kashmir in Secs. 18 IPC.  
• Such a transfer must take place without the consent of the person concerned: – The age of the person is decisive when determining the crime, but consent is also important in the case of a serious person. For example, the crime is not committed if the person is of age and voluntarily agrees to the transfer. Consent is irrelevant if it is a minor.  

 Section 361: Deprivation of legal custody 

 Who takes or induces a person under 16 years, if male, or under 18 years, if female, or any other weak person, to the care of the legal guardian of such minor or weak person, without his consent. such guardian abducts a minor or legal guardian. Explanation. — The words “legal guardian” in this section include any person legally entrusted with the care or guardianship of a minor or other person. An exception. This section does not extend to the act of a person who believes in good faith that he is the father of an illegitimate child or who believes in good faith that he is entitled to the legal custody of such child unless he does so. it is done for an immoral or illegal purpose. 

Essential: – 

• To take or attract: – the word “to take” means to force away, to accompany or to take possession of; it means no violence, real or imagined. The word “encourages” carries with it the idea of ​​encouraging hope or desire. One does not attract the other unless the latter tries to do something he would not do otherwise. This is the main difference between take and attract. For example, persuasion of the defendant that induces a willingness to remove the art of a minor in the possession of a legal guardian would be sufficient to attract the [i] provisions of that section. Duration doesn’t matter in this section either. 
• Minor or mentally ill: – the abductee must be minor, ie. A boy under  16 and a girl under  18 or mentally ill. Mental health must be permanent and not a temporary mental disorder caused by excessive alcohol or other causes. For example, when a 20-year-old girl was taken unconscious due to dhatura poisoning, the accused was found not guilty of kidnapping because the girl could not be said to be healthy. 
• Beyond the control of the legal guardian: -The word “Keep” simply means that the minor is under the proper care and protection of the guardian. The minor must not be in the physical possession of the guardian. It is enough if the minor is under supervision, which is terminated with the criminal in the first instance. There is also a difference between a legal guardian and a statutory guardian. If a father sends his son to school, here the legal guardian is the father and the legal guardian is the servant or friend.
• Without the consent of such guardian: – Taking a minor with you or encouraging him to stay away from his guardians must be done with free consent by Section 90 of the Criminal Code. The consent of the minor is irrelevant. Consent may be implied and need not be expressed. Furthermore, if consent is obtained after the crime has been committed, it cannot be used as a good defence. Therefore, it is pointless. 

Punishment 

 The provision for the punishment of kidnapping is laid down in Section 363, which provides that any person who kidnaps a person or ward of Indian origin shall be punished with imprisonment which may extend to seven years or with a fine or both.  

Difference Between Kidnapping and Abduction 

 Kidnapping and abduction differ in the following ways: 

• Kidnapping targets a minor only if the male is 16  and the female is 18  or insane, while abduction can be done at any age. In kidnapping, the person is removed from custody, while the abducted must not be in anyone’s possession. In the case of kidnapping, consent is not important, but if the abducted agrees to move, the crime is not committed. Kidnapping is not a continuing crime, but abduction is a continuing crime. Intent to kidnap is unimportant while intent to abduct is very important. 

Conclusion 

 Abductions and kidnappings violate the fundamental right to life and liberty enshrined in Article 14 of the Constitution of India. With the constant increase in the number of victims of these heinous crimes, the need to prevent kidnappings and abductions, especially for begging, mutilation and sex, has become especially important. 

 The joint tasks of the legal framework, state bodies and non-governmental bodies are very important to combat child trafficking. To combat this phenomenon, cooperation between countries should also be developed through the continuity of the penal system. This coherence can be achieved through the adoption of international instruments and the  implementation of these international humanitarian instruments.  Kidnapping and abducting are risky actions that harm a person’s chances. Sections 359 to 369 help ensure the freedom of individuals. They provide security to children against robbery and abduction. In addition, they strengthen the rights of guardians to supervise children who are  moved and persuaded by the expressions of disruptive adults. 

 The number of cases of kidnapping and abduction is huge and only increasing. There is an urgent need to stop these horrific abuses and stop the spread of confiscation and kidnapping lifestyles, especially in relationships, limited intercourse and limited initiative etc.

References

1. https://www.legalserviceindia.com/legal/article-7871-kidnapping-and-abduction-under-indian-penal-code.html
2. https://devgan.in/ipc/section/363/