-

NAME- MANSI BHARGAVA

SUBJECT- OFFENCES AGAINST CHILD AND JUVENILE OFFENCES
CLASS - LLB 2ND SEM
TOPIC – KIDNAPPING AND ABDUCTION

1|Page
 INDEX

1. PART A

KIDNAPPING.......................................................................................... 5, 6,7

2. PART – B

ABDUCTION............................................................................................... 8,9

3. PART – C

AGGRAVATED FORMS OF KIDNAPPING...............................................10 to 17

4. PART – D

SLAVERY AND FORCED LABOUR..............................................................17

5. PART – E

SALE OR PURCHASE OF MINORS FOR IMMORAL PURPOSES...........18

6. PART – F

PROPOSAL FOR REFORM................................................................................19, 20

7. BIBLIOGRAPHY.....................................................................................21

2|Page
 PART – A
KIDNAPPING AND ABDUCTION
Section – 359 Kidnapping - Kidnapping is of two kinds: Kidnapping from India, and
kidnapping from lawful guardianship.

Section – 360 – kidnapping from India – Whoever conveys any person beyond the limits of
India without the conveys of that person, or of some person legally authorised to consent on
behalf of that person, is said to kidnap that person form India.

The IPC recognises two kinds of Kidnapping: kidnapping from India and kidnapping from
lawful guardianship. Kidnapping in any form curtails from the liberty of an individual.
Especially, it impinges the right to life guaranteed under art 21 of the Constitution of India
and human rights. It causes terror in the mind of the people and has deleterious effect on
civilised society1.

Kidnapping from India-

The words used in the section are ‘beyond the limits of India’. This means that the offences
under this section are complete, the moment a person is taken outside the geographical
territory of India. It is not necessary that the person should reach their destination in some
other foreign territory. By the same token, if a person should reach their destination in some
other foreign territory. By the same token, if a person is apprehended before he crosses the
Indian border, then the offences will not be complete. At best, it may amount to an attempt to
commit the offence of kidnapping form India under s 360, IPC. Till then, he has a locus
paenitentia.

The term ‘India’ has been defined in s 18, IPC, as the territory of India excluding the state of
Jammu and Kashmir.

The taking away of a person outside the territory of India is made a separate offence, because
it has the effect of removing a person from the jurisdiction of the Indian Law enforcing
agencies.

Kidnapping from Lawful Guardianship-

Section - 361. 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 the lawful guardian of such minor person of unsound

1
Tarun Bora v. State of Assam (2002) 7 SCC 39

3|Page
mind, without the consent of such guardian, is said to kidnap such minor or person from
lawful guardianship.

Explanation – The words ‘lawful guardian’ in this section include any person lawfully
entrusted with the care or custody of such minor or other person.

Exception – 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 the lawful custody of such child, unless such act is committed for an immoral or
unlawful purpose.

Section 361 deals with taking away of minor children from lawful guardianship. It is
equivalent to what is termed ‘child stealing’ in England. The object of the section is to protect
minor children and person of unsound mind from being seduced, harmed or otherwise
exploited by others. It is to afford protection and security to the wards. It also naturally
recognises the right of the guardians to control and take charges of their wards who may be
minors and/ or people of unsound mind.

Taking and Enticing

All that is requires to bring an act within the purview of this section, is to ‘take or entice’ a
minor or a person of unsound mind from the keeping of the lawful guardian. ‘Taking’ implies
neither force nor misappropriation. The word means ‘to go, to escort’. The consent of the
minor child is of no relevance, because a minor or a person of unsound mind is not consent.
But there must be some active part played by the accused for ‘taking’ the minor 2. Simply
permitting or allowing a minor to accompany one will not amount to an offence.

In S Varadarajan V. State of Madras3, a girl who was on the verge of attaining majority,
voluntarily left her father house, arranged to meet the accused at a certain place and went to
the sub – registrar’s office, where the accused and the girl registered an agreement to marry.
There was no evidence whatsoever that the accused had taken her out of the lawful
guardianship of her parents, as there was no evidence whatsoever that the accused had ‘taken’
her out of the lawful guardianship of her parents, as there was no active part played by the
accused to persuade her to leave the house. It was held that no offence under this section was
made out.

In State of Harayana V. Raja Ram 4, the prosecutrix was a young girl of 14 years. She became
friendly with a person called Jai Naraian, aged 32, who was a frequent visitor. When Jai
Naraian was forbidden by the prosecutrix ‘s father from coming home, he sent messages
through one Raja Ram. She was constantly persuaded to leave the house and come with Jai
Naraian, who would keep her in a lot material comfort. One night, the prosecutrix arranged to

2
State v. Rajayyan (1996) CrLJ 145 (Ker); Gaurish v. State of Maharashta (1997) CrLJ 1018 (Bom.); Deep
Chand @ Dipu v. State (National Capital Territory, Delhi) (2001) CrLJ 463 (Del).
3
AIR 1965 SC 942, (1965) 2 CrLJ 33 (SC); also see Lalta Prosadv. State of Madhya Pradesh AIR 1979 SC
1276; Deb Kumar Jain v. Kamala Bai (1983) 2 Crimes 85 (MP); Manornjan v. State of Maharashtra (1992) 1
Crimes 69 (Ori).
4
AIR1973 SC819, 1973CrLJ 651 (SC)

4|Page
meet Jai Naraian in his house and went to meet Jai Narain in his house and went to meet him
where she was seduced by Jai Narain. Jai Narain was convicted under s 376 for rape of
minor and Raja Ram under s 366. The question before the supreme court was whether Raja
Ram could said to have ‘taken‘the prosecutrix, since she was willing on the part of the minor
to be taken out of the keeping of the lawful guardian, would be sufficient to attract the
section.

The word ‘entice’ connotes the idea of inducement of pursuance by offer of pleasure or some
other form of allurement. This may work immediately or t may create continuous and gradual
but imperceptible impression culminating after some time in achieving its ultimate purpose of
successful inducement.5

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 the lawful guardian’ an offence. The meaning of the words ‘keeping of the
lawful guardian’ came up for consideration before the Supreme Court in the State of
Harayana v. Raja Ram.6 The court observed that the word ‘keeping’, in the context, cannotes
the idea of charge, protection, maintenance and control. The court compared it with the
language used in English Statues, where the expression used was ‘taken out of the
possession’ and not ‘out of the keeping’. The difference in the language between English
statues and this section only goes to show that s 361 was designed to protect the scared right
of the guardians with respect of their minor wards.

The term used in the statue is ‘lawful guardian’ and not ‘legal guardian’. The term lawful
guardian is a much wider and general term than the expression ‘legal guardian’ would be
parents or guardians appointed by courts. ‘Lawful guardian’ would include within its
meaning not only legal guardians but also such person likes a teacher, relatives etc, who are
lawfully entrusted with the care and custody of minor.7

Age of Minor -
As per the section the age of minor child at the relevant point in the time should be less than
16 in respect of a male, and less than 18 in respect of a female, in order to constitute an
offence under this section.

PUNISHMENT FOR KIDNAPPING -

Section – 363. Punishment for kidnapping – whoever kidnaps any person from India or from
lawful guardianship, shall be punished with imprisonment of either description for a term
which which may extend to seven years, and shall also be liable to fine.

5
Thakorlal D Vadgama v. state of Gujarat AIR 1973 SC 2313, (1973) CrLJ 1541 (SC)
6
AIR 1973 SC 819 CrLJ 651 (SC)
7
State v. Harban Singh Kisan singh AIR 1954 Bom 339; Kesar v. Emperor Air 1919 Pat 27

5|Page
In Chandrakala v. Vipin menon,8 the supreme court declined to convict the father, who was
accused of kidnapping his minor daughter who was living with her maternal grand father due
to strained relationship between her parents, on the ground that the accused was the natural
guardian of the child.

PART – B
ABDUCTION
Section – 362 Abduction – whoever by force compels, or by any deceitful means include, any
person to go from any place, is said to abduct that person.

Section 362 merely defines the term ‘abduction’. Therefore, abduction perse is not offence
under the IPC. It is an offence when it is accompanied by certain intent to commit another
offence. Force or fraud is essential to make abduction punishable.

Ingredients
The essential ingredients of this section are:

(a) Forcible compulsion or inducement by deceitful means;

(b) The objects of such compulsion or inducement must be the going of a person from
any place.

It must be noted that abduction per se as defined under s 362 is not an offence, 9and hence
is not punishable.10 Only if the abduction falls in the categories provided under ss 364,
365, 366, 367 and 369, will it amount to an offence. Thus, abduction is an offence only if
it is done with intent to :

(a) Murder (s 364);

(b) Secretly and wrongfully confining a person (s 365);
(c) Induced woman to compel her marriage (s 366);
(d) Subject person to grievous hurt, slavery etc (s 367);
(e) Steal from a person under 10 years ( s 369).

By Force
The term ‘force’ as embodied in s 362, IPC, means the use of actual force and not merely
show of force or threat of force.11 Where an accused threatened the prosecutrix with pistol
to make her go with him, it would amount to abduction under this section.12

8
(1993) 2 SCC 6
9
Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67, (1960) CrLJ 154 (SC)
10
Chote Lal v. State of Harayana AIR 1979 SC 1494, (1979) CrLJ 1129 (SC)
11
See Hari Singh Gour penal Law of India, vol 3, 11 edn, Law Publishers, Allahabad 1998, P 2480
12
Gurcharan Singh v. State of Harayana AIR 1972 SC 2661, (1973) CrLJ 179 (SC).

6|Page
 Deceitful Means
Under this section, including a person by deceitful means to go from any place is also an
offence. Deceitful means is used as an alternative to ‘use’ of ‘force’. Thus, a person can
use force to compel, or in the alternative deceive a person to leave a place. Either way, it
amounts to. Deceitful means misleading a person by making false representations and
thereby persuading the person to leave any place.

To go from any place

An essential element of abduction is compelling or inducing a person to go from ay place.
It need not be only from the custody lawful guardian as in the case of kidnapping. For
unlike kidnapping, abduction is continuing offence. The offence of kidnapping is
complete, the moment a person is removed from India or from the keeping of lawful
custody of guardian. But, in the case of abduction, a person is abducted not only when is
first taken away from any place, but also when he is subsequently remove from one place
to another. 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. I was held that his
act amounted to abduction.13 Where a woman is passed from hand to hand in several
places, each of the persons will be guilty of offence of abduction.14

Distinction between kidnapping and Abduction –

Kidnapping Abduction

Kidnapping from guardianship is committed Abduction may be in respect of any person.

only in respect of a minor or a person of
unsound mind.
Person kidnapped is removed out of lawful No such thing necessary. It has reference
guardianship. exclusively to the person abducted.
Taken away or enticed to go away with the Force, compulsion and deceitful means are
kidnapper. The means used are irrelevant. used.
Consent of the person kidnapped is Consent of the person condones the offence.
immaterial.

13
Bhadur Ali v. King Emperor AIR 1923 Lah 158
14
AIR 1929 Lah 713

7|Page
 Intent of the kidnapper is irrelevant. Intent of the abductor is all-important
factor.
Not a continuing offence. It is complete as It is continuing offence. It continues so long as
soon as the minor or person of unsound mind the abducted person is removed from one
is removed from lawful guardianship. place to another.
Kidnapping outside India. Abduction may be anywhere within or
without.
PART – C
AGGRAVATED FORMS OF KIDNAPPING

KIDNAPPING OF MAIMING FOR BEGGING

Section 363A. Kidnapping or maiming a minor for purposes of begging. –

(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the
custody of the minor, in order than such minor may be employed or used for the
purposes of begging shall be punishable with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor may be employed or used for the
purposes of begging shall be punishable with imprisonment for life, and shall also be
liable for fine
(3) Where any person not being the lawful guardian of a minor, employs or uses such
minor for the purposes of begging, it shall be presumed unless the contrary is proved,
that he kidnapped or otherwise obtained the custody of that minor in order that the
minor might be employed or used for the purposes of begging.
(4) In this section,-
(a) Begging means

(i) Soliciting or receiving alms in a public place, whether under the pretence of
singing, dancing, fortune- telling, performing tricks or selling articles or
otherwise.
(ii) Entering on any private premises for the purposes of soliciting or receiving aims;
(iii) Exposing or exhibiting, with the object of obtaining or extorting alms, any sore,
wound, injury, deforming or disease, whether of himself or of any other person or
of an animal;
(iv) Using a minor as an exhibit for the purpose of soliciting or receiving alms;

(b) ‘minor’ means –

(i) In the case of a male, a person under sixteen years of age; and
(ii) In the case of a female, a person under eighteen years of age.

8|Page
 This section was introduced in the year 1959. It was inserted to convert the growing of
‘organised begging’ wherein unscrupulous persons were abducting children and maiming
them for the purpose of begging. The term ‘begging’ is defined in cl (4) of this section.

Clause (3) of this section introduces the presumption that if a person other than the lawful
guardian uses or employs a minor for begging, then unless the contrary is proved, it will
be presumed that he kidnapped the child.

ABDUCTION TO MURDER
Section 364. Kidnapping or abduction in order to murder: - Whoever kidnaps or abducts
any person in order that such person may be murdered or may be so disposed of as to be
put in danger of being murdered, shall be punished with imprisonment for a term which
may extend to ten years, and shall also be liable to fine.

Illustrations

(a) A kidnaps Z from India, intending or knowledge it to be likely that Z may be

sacrificed to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered.
A has committed the offence defined in this section.

This section will apply if person has been abducted with intention that he be murdered. 15
The actual murder of the person is not required. It is sufficient that there was abduction
with the intent to murder.16

KIDNAPPING FOR RANSOM

364A Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a
person in detention after such kidnapping or abduction, and threatens to cause death or
hurt to such person, or by his conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt, or causes hurt or death to such person in order to
compel the government or any foreign state or inter – governmental organisation or any
other person to do or abstain from doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be liable to fine.

Section 364 – A was inserted by criminal law (Amendment) Act 1993 [and further
amended by the Indian Penal Code (Amendment) Act 1995] to provide for severe
punishment for abducting or kidnapping a person and keeping him continuously under
detention and threatening him to cause death or hurt or creating a reasonable
apprehension that he may be put to death or hurt to compel the government or foreign
state or international inter – governmental organisation or any other person refrain from
doing any act or to pay a ransom as demanded by kidnapper or abductor.

15
Upendra Nath v. Emperor AIR 1940 Cal 561; Paras Nath Mani Tipathi v. State (2000) CrLJ 3882 (All); Subhash
Chandra Panda v. State (2001) CrLJ 4108 (Ori).
16
State of west Bengal v. Mir Mohmad Omar AIR 2000 SC 2998, (2000) 8 SCC 382.

9|Page
 In Netra Pal v. State (National capital Territory of Delhi), 17 the Delhi High Court, in set of
peculiar facts, delved into some key words and ambit of s 364A of the IPC. The raiding
party recovered from the accused the kidnapped child and a letter demanding ransom. He
had neither posted the letter nor personally contracted the family of the child for three
days after kidnapping till he was arrested. The high court held that mere intention to
demand is translated into action of the accused by communicating his demand to the
person concerned. Unless the price of retrieval or rescue is made, the question to pay
ransom does not arise as the words ‘to pay’ warrant setting the demand for payment in
motion. The court, therefore, declined to convict the accused for kidnapping for ransom
as he, by keeping his letter of demand with him only, did not convey his demand for
ransom to release the child.

KIDNAPPING OR ABDUCTION WITH INTENT TO SECRET AND

WRONGFUL CONFINEMENT
Section 365. kidnapping or abducting with intent to cause that person to be secretly and
wrongfully confine person – Whoever kidnaps or abducts any person to be secretly and
wrongfully confined, shall be punishable with imprisonment of either description for a
term which may extent to seven years, and shall also be liable for fine.

Section 365 comes into play when a person kidnaps or abducts another with intention to
secretly and wrongfully confine him. 18 Such an intention of the kidnapper or abductor has
to be judged from the facts and circumstances of the case at hand.19

17
(2001) CrLJ 1669 (Del).
18
Akbar Ali Emperor AIR 1925 Lah 614; Roshan v. State of Uttar Pradesh AIR 1954 All 51.
19
State of Uttar Pradesh v. laiq Singh (1986) CrLJ 584 (All); Rajendra v. State of Maharashtra (1997) SCC (Cri)
840.

10 | P a g e