Section 362 of IPC
Abduction is a continuing offence whereas kidnapping is not so.
Abduction simply means carrying away a person by force or fraud. Section 362 of IPC states, whoever by force compels, or by a deceitful means induces any person to go from any place, is said to abduct that person.
The Ingredients of Abduction:
- Forceful compulsion or inducement by deceitful means:
- The object of such compulsion or inducement must be the going of person from any place.
A forcibly carries B away from home in order to murder B. Here the offence of abduction has been committed.
In Arusami Goundan’s case, it was held if a minor girl voluntary goes out of her guardian’s protection and meets a person, no offence is committed and person won’t be guilty of abduction.
Act of abduction along with certain intention to commit another offence becomes punishable offence:
- If intention is that abducted person may be murdered, Section 364, applies;
- If intention is wrongfully confine person, Section 365 applies;
- If abducted person is a woman and intention is that she may be forced to marry against her will or have illicit sexual intercourse then Section 366 applies;
- If intention is to cause grievous hurt then Section 367 applies;
- If the abducted person is a child under age of ten years and intention is take dishonestly any movable’ property from its person then Section 369 applies.
There has to be element of force or deceit practiced on the abducted person. The word ‘deceit’ includes use of misrepresentation and fraud by act or conduct. Deceitful means include misreading statements.
In R.V. Cort it was held that consent by fraud does not exempt a person of a charge of kidnapping (in U.K. kidnapping is for both minors & adults). The defendant frequently stopped his car at bus stops and falsely alleged to the passengers waiting, that the bus had broken down and offered women to give lift. Twice they accepted. One woman changed her mind and he let her out. The defendant took the plea that the woman had freely got in the car and were freely let out with their consent. The court held that the taking away was by consent obtained by fraud. Therefore, in the instant case, it was considered that the victim had not consented to be taken away since the consent was obtained by fraud.
Abduction is a continuing offence. It is continuing so long as the abducted person is moved from place to place. An essential element of abduction is compelling or inducing a person to go from any place. In case of abduction, a person is being abducted not only when first he is taken away from any place, but also when he is subsequently removed from one place to another. Whereas, the offence of kidnapping is complete the moment a person is removed from India or lawful custody of guardian.
In Ganga Devi’s case (1914) 12 ALJ R 91, it was held that a girl is being abducted not only when she is taken from any public place but also when she is removed from one place to another.
In Bahadur AIi Vs. Emperor AIR 1923 Lah 158, a kidnapped girl managed to escape from the kidnappers when she met the accused, who misrepresented to her that he was a police constable and would take her to the police station. But instead, he took her to his house, kept her there, demanded and took a ransom of Rs. 600 from her mother, before he handed her back. It was held the act amounted to abduction. The second time girl was abducted as she was not taken out of custody of lawful guardian.
Kidnapping is not a continuing offence. As soon as the person is taken out of custody of lawful guardian or out of the territory of India, the offence is committed.
In Nemai Chattoraj Vs. Queen Empress it was stated that the offence of kidnapping from lawful guardianship is complete when a minor is actually taken from lawful guardianship and that is not a continuing offence.
Section 359, IPC classifies kidnapping under 2 categories: –
- Kidnapping from India (Section 360, I.P.C.)
- Kidnapping from lawful Guardianship (Sec. 361, I.P.C.)
The word kidnapping has been derived from word ‘kid’ meaning ‘child’ and ‘napping’ means ‘to steal’.
Illustration: ‘A’ asked minor girl to leave house of the lawful guardian with a promise that he will marry her on this the minor girl leaves the house therefore ‘A’ is guilty of offence of kidnapping.
Furthermore, Section 360 of IPC defines kidnapping from India. For this there must be:
- Conveying of any person beyond the limits of India.
- Without consent of that person or someone legally authorized to consent on behalf of that person.
The offence can be committed in respect of male or female; major or minor and irrespective of his nationality.
Section 361 of Indian Penal Code:
Kidnapping from Lawful Guardianship – Whoever takes or entices any minor under (sixteen) years of age if a male or under (eighteen) years of age if a female, or any person of unsound mind out of the keeping of lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
- They must be taking or enticing of minor or a person of unsound mind.
- Such minor must be under 16 years of age, if male, under 18 years of age if a female.
- Taking/ enticing must be out of keeping of lawful guardian of such minor or person of unsound mind.
- Taking or enticing must be without consent of such guardian.
(a) The word talking merely means to get into possession. There may or may not be use of force. The mental attitude of minor is irrelevant in course of taking.
In Khalandar Sahib (in re) 1955 Cr LJ 581, the accused took away the minor whether she was willing or not, the act of taking was complete and it amounted to taking out of father’s custody within the meaning of this section.
In Sayyad Abdul Satar Vs. Emperor, AIR 1928 Mad 588, it was observed that if a minor laves her parental home completely un-influenced by any promise, offer or inducement from guilty part, then the latter cannot be considered to have committed the offence as defined under Sec, 361, IPC.
Our best of the criminal lawyers in Chandigarh tremendously rely upon this citation and subsequent citations of such similar nature for cases, wherein, kidnapping is alleged against an innocent person and a case is made out against by the police. Even when a girl has absconded from her house with accused being in love and out of her own free will, owing to conservative, protective and rigid moralistic approach of girl’s parents and their “social reputation”, it does happen in many cases that their infuriating anger is often channelized by implicating the boy and their family members into false and frivolous charges even though, as in many cases, the minor girl herself instigates the whole process of absconding from her home with her lover, but later on, cries foul succumbing to the realistic difficulties of life and the male counterpart/ boyfriend is mercilessly implicated by the girl’s family by taking her in confidence either by persuasion or pressure to turn hostile and give out a statement implicating the boy. It is in such cases that a real good criminal lawyer for kidnapping cases who could establish to the courts with consolidated proofs (which sometimes could be quite hard to find and may need serious application of mind towards the intricate details of the case) that the act of the minor girl was voluntary and that the accused has been vindictively implicated in the matter. False implication in a case of kidnapping can come off as a question of life and death for the innocent accused.
(b) Lawful Guardian – The word lawful is different from word legal guardian. A legal guardian is a guardian appointed by law. A legal guardian is necessarily a lawful guardian e.g. A teacher is a lawful guardian or if parents leave child with a care taker for some time then then the care taker is a lawful guardian. Thus lawful guardian would include a natural guardian, a testamentary guardian appointed by the court and a person lawfully entrusted with the case and custody of a minor. In this section guardian is described as a lawful guardian and not as a legal guardian.
A lawful guardian cannot include a person who obtains the care and custody of minor by illegal or unlawful means. In State of Maharashtra Vs. Kisan Singh AIR 1954, Bom. 339, it was held that if minor or lunatic is taken out of custody of the legal guardian, it would amount to kidnapping.
(c) Out of keeping of lawful guardianship – if the minor is not in the custody of lawful guardian the section is not attracted. If a minor abandons the house of his guardian on his even accord and has no intention of returning he cannot be said to be in keeping of his lawful guardian.
A three year old boy is taken out ‘f the custody of his father by being offered some sweets while father is busy in a work.
The person who entices and then takes away is guilty of offence of kidnapping.
Exception to this Section:
The penal consequences of this Section does not extend to any person who believes in good faith to the father of an illegitimate child or who in good faith believes himself to be entitled to lawful custody of such child unless act is committed for an immoral or unlawful purpose.
When Is The Offence Of Kidnapping Complete?
The offence of kidnapping from the custody of lawful guardianship is complete when minor is actually taken from the lawful guardianship. In Rekha Rai v. K.E. (1927) ILR 6 Pat 471 where ‘A’ kidnaps a minor girl from lawful guardianship and gives her to B, who accepts not knowing that she has been kidnapped. A, is guilty of kidnapping and not B.
Punishment Of Kidnapping Section 363 Indian Penal Code:
Whoever kidnaps any person from India or from lawful guardian shall be fined with imprisonment of either description for a term which may extend to seven years and shall also liable to fine.
Thus it can be clearly inferred that abduction is a continuing offence and may take place against a person of any age whereas, the offence of kidnapping as committed as soon as the person is taken out of lawful guardianship. It is not a continuing offence.
The Current Scenario:
The fifth law commission suggested the major reforms relating in law relating to offence of kidnapping in its 42nd report as it recommended:
- It suggested deletion of Section 360 as it lost relevance in modern India whereas.
- In Section 361 it suggested to remove separate ages for boys and girls and have a uniform age criteria of 18 years.
Kidnapping in any form curtails the liberty of an individual. Essentially, it violates the right to life guaranteed under Article 21 of the constitution of India and human rights. It causes terror in the mind of the people and has harmful effect on civilized society. According to the IPC, the offence kidnapping is of two type as discussed earlier:
Section 359 of IPC:
(i) Kidnapping from India
(ii) Kidnapping from Lawful Guardian
The underlying object of enacting these provisions is to secure the personal liberty of citizens, to give legal protection to children of tender age from being abducted or seduced for improper purposes and to preserve the rights of parents and guardians over their wards for custody or upbringing.
Kidnapping From India – S 360 IPC
Whoever conveys any person beyond the climate of India without the consent of the person or of some person legally authorized to consent on behalf of that person is said to kidnap that person from India.
The words “lawful guardian” in this section include any person lawfully entrusted with the care of custody of such minor or other person.
This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
In order to constitute offence under this section, following essentials are required: –
(i) Whoever conveys any person beyond the limits of India.
(ii) Without the consent of that person or of some person legally authorized to consent on behalf of that person.
The scope of “Beyond the limits of India”
According to Section 18 of Indian Penal Code, India is defined as the territory of India excluding state of J&K. As per interpretation of s. 360, it lays down that the offence under this section is complete, the moment a person is taken out geographical territory of India. In case, a person is apprehended before he crosses Indian border, then offence is not complete, it will only amount to attempt to commit kidnapping from India.
The Scope of “Without the consent of that person or some person legally authorized to consent on behalf of that person”:
In order to be liable under this section, absence of consent is necessary before taking the person beyond the limits of India in case if he/she is a major or of such of his / her legal guardian if the person is minor. It is only then that the offence of kidnapping is constituted.
Kidnapping from Lawful Guardianship
Section 361 of IPC States that:
Whoever takes or entices any minor under sixteen years of age of a male of under eighteen years of age of a female or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
(i) Whoever takes or entices
(ii) Any minor under 16 years of male or 18 years of female or
(iii) Any person of unsound mind ( who may be major)
(iv) Out of keeping of lawful guardian of such minor or without the consent such guardian of the person of unsound mind.
“Whoever takes or entices”
The Apex Court in Thakoral D Vadgama v. State of Gujarat (1973) 2 SCC 413, where a rich industrialist had induced a minor girl of 16 years to leave her home and come to his garage to have illicit intercourse with him. It was established that the accused had at an earlier stage solicited or induced Mohini to leave her father’s protection by conveying or indicating or encouraging the suggestion that he would give her shelter and induced it through expensive gifts too. The Hon’ble Supreme Court affirmed the conviction under section 366, IPC, passed by the trial court and the Gujarat high court observing and pointing out the meaning of this expression;
a) That word “takes” does not necessarily means taking by force and it is not confined to the use of force, actual or constructive. These words merely mean to cause to go, to escort or to get into possession.
Thereby the Hon’ble Supreme Court aimed at clasping harder those who try to prey and woo away minor and underage girls under the grip of law.
b) And the word “entice” indicates the idea of inducement or pursuance by offer of pleasure or some other form of allurement. It may work immediately or it may work slowly or gradually in achieving its ultimate purpose.
A, a man of 32 years persuades B, a minor girl of 16 years, to leave her parental house as he will keep her in lot of material comfort. A shall be held guilty as liable under the section.
Keeping of Lawful Guardian
Section 361 makes the taking or enticing of any minor person or person of unsound mind “out of the keeping of lawful guardian an offence.
a) Meaning of “Keeping” The Supreme Court in State of Haryana V. Raja Ram, AIR 1973 SC 819, observed that the word “keeping” in the context, indicates the idea of charge, protection, maintenance and control. Thus, it was held that Section 361 was designed to protect the sacred rights of the guardians with respect to minor wards.
b) Meaning of “Lawful Guardian”
In State v. Harbans Singh Kisan Singh AIR 1954 Bom 339, the Supreme Court observed that term lawful guardian is a much more wider and general term than the expression “legal guardian” As legal guardian would be parents or guardians appointed by court but lawful guardian would include within its meaning not only legal guardians but also such persons like a teacher, relatives etc. who are lawfully entrusted with the care and custody of a minor.
Exception to this Section
The penal consequences of this Section does not extend to any person who believes in good faith to the father of an illegitimate child or who in good faith believes himself to be entitled to lawful custody of such child unless the act is committed for an immoral or unlawful purpose. In Chandrakala v. Vipin Menon (1993) 2 SCC 6, the Supreme Court declined to convict the father who was accused of kidnapping his minor daughter who was living with maternal grandfather due to strained relations between the parents, on the ground that the accused was the natural guardian of the child.
Aggravated forms of Kidnapping and Punishment
Section 363A of the Indian Penal Code (IPC):
Kidnapping or maiming a minor for purposes of begging.
It is further classified as per the gravity of the crime, therefore, the punishment ranges from imprisonment of either description for a term which may extend to life imprisonment to ten years, and shall also be liable to fine.
Section 364 of the Indian Penal Code (IPC):
Kidnapping or abducting in order to murder.
Punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 364A of the Indian Penal Code (IPC):
Kidnapping for ransom etc.
Shall be punishable with death, or either description for a term which may extend to seven years, and shall be liable to fine.
Section 365 of the Indian Penal Code (IPC):
Kidnapping or abducting with intent secretly and wrongfully to confine a person.
Punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 366 of the Indian Penal Code (IPC):
Kidnapping, abducting or inducing woman to compel her marriage, etc.
Shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 366A of the Indian Penal Code (IPC):
Procuration of minor girl.
Shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
Section 366B of the Indian Penal Code (IPC):
Importation of girl from foreign country.
Shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
Section 367 of the Indian Penal Code (IPC):
Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.
Shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 368 of the Indian Penal Code (IPC):
Wrongfully concealing or keeping in confinement, kidnapped or abducted person.
Shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Section 369 of the Indian Penal Code (IPC):
Kidnapping or abducting child under ten years with intent to steal from its person.
Shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Case Study 1
Fleeing away with an underage girl with her own consent but without the consent of her father, and, with an intention to marry will amounts to kidnapping if the girl’s father so alleges?
G, a 17 years and 9 month old girl and student of B.A. was residing next door to the house of A, a young businessman in a posh colony of New Delhi and both had become friendly to each other G’s uncle was doing business in Agra. One evening A told G that early next morning he was going to Agra by car and would come back in the same evening, and if G was interested in going to meet her uncle in Agra she could accompany him. G, then, asked for her parent’s permission and they allowed. On reaching Agra A dropped G at her uncle’s house and in the evening proceeded to take her back to New Delhi. While still in Agra. A suggested to G that he wanted to marry her and keeping in view the orthodox views of their parents it would be better to avail the opportunity. G, though initially reluctant, ultimately agreed to A’s suggestion. Accordingly, they purchased some ornaments and wedding dress and then went to a temple and got married. They stayed in Agra for a night and decided to go to Bombay. However the next day they were apprehended. The question arises – is A liable for kidnapping G?
To the eyes of a common man it might not seem as a problem at all, since cases of such nature are quite common. However, on keen inspection, and in the eyes of law and of a good criminal lawyer who is an expert in kidnapping cases, the aforesaid problem is one where there has been many illegal acts committed by A.
- A enticed the victim by offering her lift to Agra where latter’s uncle was doing business thus laid foundation by inducement.
- Subsequently A persuades her to marry him before leaving Agra while being aware of the orthodox views of her parents.
- A marries the minor girl.
- Later, A gets apprehended while trying to leave for Bombay which clearly shows the intent of accused to take victim away from the care and custody of her parents.
Even though the consent of parents was obtained to take G to Agra, the consent was not absolute but limited in nature. The moment A crossed the parameters of the consent, he stepped into the zone of no consent.
As discussed earlier, the Apex court in the case of Thakoral D Vadgama v. State of Gujarat, the Apex Court Affirmed the conviction under Section 366, IPC, passed by the trial court and the Gujarat high court.
Thus, keeping in view the decided case law, and the facts of above problem A will be held guilty under section 366 of the IPC.
Case Study 2
A developed friendship with a girl aged 17 years. In course of time the friendship developed into intimacy and three months before her 18th birthday. A took the girl several times to movies and public parks during the college hours, but, the girl returned home every night. Two weeks before her 18th birthday the girl insisted that they should stay out overnight. A, arranged for the girl’s stay in his own house. Next morning on the complaint of the girl’s father, A was arrested and prosecuted for the kidnapping of the girl.
As it is admitted that the complainant’s daughter insisted that they should stay out overnight, there’s no active part played by the accused for taking the minor, further, it is held view that simply permitting or allowing a minor to accompany one will not amount to an offence.
As in the case of S. Varadarajan v State of Madras, a girl who was on verge of attaining majority, voluntarily left her father house, arranged to meet the accused at a certain place and went to sub registrar’s office, where the accused and the girl registered an agreement to marry. There was no evidence whatsoever that the accused has, taken, her out of lawful guardianship of her parents, as there was no active part played by the accused to persuade to her house. It was held no offence is made out under this section.
Thus A is not guilty of any offence under this section.