Dr. BR.

Ambedkar National Law University, Haryana

TOPIC:- Kidnapping & Abduction

Subject- Criminal Law-I Subject Code- 503

Submitted By- Varsha Chandel Submitted To- Dr Sonia

Roll no.- 2001122 Assistant Professor
Sec- B DBRANLU
Class - B.A.LL.B (Hons.)
Semester- 5th
Introduction
Kidnapping and Abduction are important offences against the human body and have been
covered specifically from section 359 to 374 of the Indian Penal Code. An analysis of these
sections along with relevant case studies has been covered in this module.
Kidnapping and abduction are particular types of offences under the law of crime. Under these
offences, a person is taken away secretly or forcible without his consent or without the consent
of authorised guardian. Under kidnapping a person is kidnapped from lawful custody.

Section 3601 defines Kidnapping from India and Section 361 2 defines Kidnapping from Lawful
Guardianship. Section 3633 lays down imprisonment of either description for a term which may
extend to seven years and fine as punishment for the offence of Kidnapping. Section 359 to 374
of Indian Penal Code, 1860 provides for punishments for these offences. In this article, we will
discuss these provisions in detail, understand the essentials of kidnapping and abduction, discuss
the difference between kidnapping and abduction and also discuss the provisions regarding
forced slavery, labour and sale and purchase of minors for illegal purposes. 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.
But there may be cases when both the kinds can overlap each other. Kidnapping may be done to
demand for ransom in exchange for releasing the victim, or for other illegal purposes.
Kidnapping can be accompanied by bodily injury which elevates the crime to aggravated
kidnapping.

1
Section 360 of The Indian Penal Code
2
Section 361 of The Indian Penal Code
3
Section 363 of The Indian Penal Code
Kidnapping

The word “kidnapping” has been derived from the word ‘kid’ meaning child and ‘napping’ to
steal. Thus the word literally means “child stealing”. Kidnapping under the code is not confined
to child stealing. It has been given wider connotation as meaning carrying away of a human
being against his/her consent, or the consent of some person legally authorized to accord consent
on behalf of such person.
Kidnapping, according to Walker, is the common name for the common law offence of carrying
away, or secreting, of any person against his will, or against the will of his lawful guardians. It
may be constituted by false imprisonment, which is total restraint of a person and his
confinement without lawful authority or justification.

Section 359 in The Indian Penal Code – Kidnapping.

Under section 359 of IPC, there are two types of kidnapping:-
1. Kidnapping from India. (section-360)
2. Kidnapping from lawful guardianship. (section-361)

Section 360: Kidnapping from India

Whoever conveys any person beyond the limits of India without the consent of that person, or of
some person legally authorised to consent on behalf of that person, is said to kidnap that person
from India.
This section makes kidnapping from the territorial limits of India a punishable offence under the
Indian Penal Code. It makes use of the word “convey” which literally means ‘to transport’,
‘carry’ or ‘take’ from one place to another 4. So, the offence of kidnapping under this provision is
complete when a person is carried, taken or transported to a place which is outside the
geographical territory of India. Reaching the destination in a foreign country is not relevant for
the accomplishment of this crime.

4
KI Vibhute,PSA Pillai’s Criminal Law (Lexis Nexis Butterworths Wadhwa 2011), 938
On similar lines, it is important to note that when the accused is in the process of conveying a
person from the territory of India but his actions are interjected before he can cross the Indian
Territory, he may be liable for attempt to kidnap under section 359 but will not be guilty of
commission of the actual offence.

Absence of consent on the part of the victim is also a necessary element of the offence. For
deciding the connotation of the term “India”, one has to rely on section 18 5 of the IPC under
which the term would mean the territory of India with the exclusion of Jammu and Kashmir.

Essentials of sec. 360 are: -

1. Conveying any person beyond the limit of India:- The person who is kidnapped can be a
major or a minor to attract the provision of this section. In the case of minor, age limit is 16 for
boy and 18 for girl. Further India means the territory of India excluding the state of Jammu and
Kashmir as per sec. 18 IPC.
2. Such Conveying must be without the consent of that person:- Age of a person is deciding
factor to determine the offence, but consent is also relevant in case of major person. For
example, if a person has attained the age of majority and has given his free consent to his being
conveyed, no offence is committed. Consent is irrelevant in case of minor.

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 or person of unsound 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.

5
Section 18 of the Indian Penal Code
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 lawful custody of such child, unless such act is committed for an immoral or unlawful
purpose.

To constitute an offence under this section the following conditions must exist –
1. There must be taking or enticing of a minor, or a person of unsound mind;
2. Such minor must be under 16 years of age, if a male, or under 18 years of age, if a
female;
3. Taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind; and
4. Taking or enticing must be without the consent of such guardian.

The courts have formulated certain guiding principles in section 361, besides its essential
ingredients, which are as follows:
1. In the case of minor girls this section is attracted irrespective of the question whether she is
married or unmarried.
2. The consent of the minor is immaterial. (State of Haryana vs Raja Ram, AIR 1973 SC 819)6
3. The motive or intention of the kidnapper is also immaterial. (State vs Sulekh Chand, AIR
Punj. 83) 7
4. If the kidnapped girl turn turns out to be under 18 years of age, the kidnapper will be held
liable, even though he had a bonafide belief and reasonable ground for believing that she was
over eighteen years. (Queen vs Prince, (1875) LR 2)8
5. The defence that the girl was easy virtue would not be sufficient to make accused not liable.
‘Enticing’ is inducing a minor to go of her own accord to the kidnapper. There is distinction
between taking and enticing. The mental attitude of child is immaterial in the case of taking
when the child is taken away. But the word ‘entice’ involves the idea of inducement or
allurement. [Biswanath Mallick vs State of Orissa, 1995 Cr.LJ 1416 (Ori)9

6
AIR 1973 SC 819
7
1964 CriLJ 220
8
1875 LR 2
9
1995 Cr.LJ 1416
Essentials:

1. Taking or Enticing: - The word ‘takes’ means to cause to go, to escort or to get into the
possession; it does not imply force, actual or construction. The word ‘entice’ involves an idea of
inducement by exciting hope or desire in the order. One does not entice another unless the latter
attempted to do a thing which he or she would not otherwise do. This is the key difference
between taking and enticing. For example, Persuasion by the accused person which creates
willingness on the art of the minor to be taken out of the keeping of the lawful guardian would be
sufficient to attract to the provision of this section. Moreover, duration is immaterial in this
section.

2. A minor or any person of unsound mind: - The person kidnapped must be a minor i.e. a boy
under the age of 16 and a girl under the age of 18 or must be a person of unsound mind. The
unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic
excess or other reason. For example, where a girl aged 20 years had been made unconscious
from dhatura poisoning when she was taken away, it was held that accused was not guilty of
kidnapping because the girl could not said to be of unsound mind.

3. Out of the keeping of lawfulguardian :- The word ‘Keeping’ simply denotes that a minor is
within the due care and protection of the guardian. It is not necessary that a minor should be in
the physical possession of the guardian. It would be enough if a minor is under a continuance
control which is for the first time terminated by the act of offender. moreover, there is difference
between legal guardian and lawful guardian. When a father sends his son to school with, here
father is a legal guardian and servant or friend is lawful guardian for that matter.

4. Without the consent of such guardian :- The act of taking or inciting a minor to keep
him/her out of the custody from guardian should be done with free consent as per the section 90
of IPC. The consent of the minor is irrelevant. The consent can be implied and need not to be
express. In addition to that, if a consent is obtained after the commission of an offence so can’t
be used as a good defence. Hence, it is immaterial.
Meaning of Taking or Enticing: There has been a lot of deliberation in Indian Courts from time
to time on the connotation of the terms “taking” or “enticing” used in section 361. Although it is
sufficient to show that there was either taking or enticing for the offence to be committed, the
terms vary a lot in their literal and legal content. ‘Taking’ excludes the idea of force on the part
of the kidnapper and means “to cause to go” or “to escort”. In fact, the kidnapper may take the
minor’s (or the unsound person’s) consent and still “take” him/her out of the keeping of his/her
lawful guardian.

The connotation of the term “Taking” was discussed in an in-depth manner in the case of
S.Varadarajan v. State of Madras10. A senior graduate student who has lived her life in a
metropolitan city, Mudholkar, J. observed, is not an unsophisticated person and is much more
able to think for herself and act independently than maybe an unlettered rural person. It was at
the Supreme Court that the appeal by Varadarajan was heard on a point of law with approval.
The crucial issue that emerged for the verdict was whether the accused was guilty of the
abduction act in which the minor claimed to have been kidnapped by the accused person luckily
abandoned her father’s safety and was able to realise the full meaning of what she was doing,
thereby joining the accused willingly.

R v. Prince- Taking, Consent and a Reasonable Mistake of Fact

The case of R. v. Prince11 is a nineteenth century English case which has generated a lot of
debate on the relevance of mens rea in certain offences. In this case, Henry Prince was charged
under section 55 of the Offences against the Person Act, 1861 for taking Annie Phillips a
fourteen year old girl. The section penalised unlawful taking of an unmarried girl below sixteen
years of age out of the possession of her lawful guardians including her father and mother. The
most interesting facet of this case is that the girl looked much older than sixteen and stated to
Prince that she was eighteen years old. Under the mistaken belief that Annie was eighteen years
old, Prince had ‘taken’ her out of her father’s custody. The jury also found that Prince had acted
under a reasonable belief and that the girl did look a lot older than 16.

However, Prince was convicted of the offence on the ground that his intention did not really
10
AIR 1965 SC 942
11
L.R.2 C.C.R.154
matter in an offence which did not require the mens rea element to be proved as per the statute.
In other words, the offence made provision for strict liability.
The dissenting opinion in this case was based on the premise that the defence of a reasonable
mistake of fact should have been made available to Prince as it is a fundamental premise of
Criminal Law that there cannot be a crime without a guilty mind. Unfortunately, the defence was
not made available to Prince and he was convicted of the offence under section 55 of the
Offences against the Person Act, 186112.

Abduction
Introduction

Section 36213 defines Abduction and points out that there are two essential elements necessary to
complete Abduction, i.e.
(a)Compelling an individual by force or inducing by deceitful means and
(b) thereby causing such person to go from any place.
Abduction is not an offence per se but becomes punishable when it is done with an intention to
commit another offence. Abduction is an offence if it is done with the intention to commit
murder, wrongfully confine a person, induce a woman to compel her marriage, subject a person
to grievous hurt, slavery, etc, steal from a person below 10 years. The term ‘by force’ suggests
that there should be actual use of force and not a mere show/threat of force. The term ‘deceitful’
suggests means and methods by which a person is misled or led to believe in something false.
The offence of abduction is committed as many times as the person is moved from one place to
another. So, for instance A is taken from her house and then sent to city X, from where she is
moved to city Y. In this case, abduction is committed twiceonce, when she was moved from her
house and then again when she was moved from city X to city Y.

12
Section 55 of The Offences against Persons Act, 1861
13
Section 362 of The Indian Penal Code
Ingredients- this section requires two things:
1. Forceful compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the going of a person from any
place.

Force in Section 362 means actual force and not merely a show or threat of force. Deceitful
means signifies anything intended to mislead another. It includes inducement and its scope is
very wide. The intention of the accused, one may say, is a gravamen of the charge. The case of
Rabinarayan Das is a pointer in this regard. Here the prosecutrix was blind.

She wanted to go to her school. However, the petitioner took her to the secretariat premises.
Evidence of inducement is not forthcoming and yet there was nothing to prove that the woman
had gone there out of her volition or free will. Abduction is a continuing offence. The abduction
of a married woman comes under section 366 14 and the actual validity or otherwise of the
marriage is immaterial. Mere abduction without the criminal intent of one of the kids specified in
the
Section is not an offence. …………………………….section is not recognized as nnnnn

Punishment
An abduction is an auxiliary act, not punishable by itself unless accompanied with some intent
specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused.

Essentials of Section 362:

1. Abducting by use of force or any deceitful means:- The abduction should be done by
compelling or inducing a person by use of force or deceitful means. The expression force
means consent obtain by force or use of force to commit abduction. Whereas, the expression
deceitful means includes any misleading statement. The intention of the offender is the
deciding element of the offence.

14
Section 366 of The Indian Penal Code
 2. Taking of a person from one place to another:- in order to commit the offence of
abduction the movement of the abducted person is must and that to be with the use of force
or any deceitful means. For example, if A enters the house of a girl B and lifted her in order
to take her away, but when B raises alarm A dropped her and ran away, A will not be liable
for abduction but he will be guilty for attempt to abduct.

In the case of Gurucharan Singh v. State of Haryana 15, the accused had put the victim under his
pistol and threatened him. The accused then took her to the fields outside the village. The court
observed that the accused in this case used an excess amount of force, and such use of force
leads to abduction.
The word deceit implies that there was a false representation made by one person towards
another because of which that person left the place. There must be the use of fraud and
misrepresentation for an act to become an offence under abduction. In the case of R v. Cort, it
was held that if the consent of a person is obtained by means of fraud, misrepresentation, or
compulsion then such consent will not be a valid one and the person will not be able to get
exempted from the liability of abduction.
The last and the most important essential of abduction is that the act must compel the person to
move from one place to another. It does not necessarily be from the custody of the lawful
guardianship.
In the case of Bahadur Ali v. King Emperor16, a girl was kidnapped, although she tried to escape
from that place, on the way she met the accused who made misrepresented her by saying that he
is a police constable. The accused then fraudulently took her to his house and then demanded
600 Rupees from her mother. The court held the accused guilty of abduction and punished him.

15
1972 AIR 2661
16
AIR 1923 Lah 158
Difference between Kidnapping and Abduction

Basis Kidnapping Abduction

Age of the For the offence of Kidnapping, section For the offence of Abduction, there is
aggrieved 361 of IPC lays down that the age of the no provision of age. Any person who
party aggrieved person should be below 16 in by force and deceit compelled another
case of males and below 18 in case of person to move from one place to
females. another becomes liable for abduction.

Removal During the offence of Kidnapping the In abduction, there is no concept of

from lawful aggrieved is removed from his/her lawful guardianship.
Guardianship lawful guardianship.

In kidnapping, a person is taken away or In abduction, certain improper means

Means is enticed from his/her lawful guardian. like force, fraud, deceit comes into
There is no such means of taking in play.
Kidnapping.

For kidnapping, the consent of the For abduction, consent plays a vital
Consent person who is kidnapped is not role, if there is a presence of express
necessary, it is only the consent of the and voluntary consent of the abducted
lawful guardian that matters. person then such an act will not be a
punishable offence.

In kidnapping, the intention of the In abduction, the intention of the

Intention of person committing the offence is accused plays a very vital role in order
the Accused immaterial and irrelevant. to ascertain whether he is guilty or
not.

Kidnapping completes as soon as the Abduction continues from the time the
Continuity of minor or the person who is of unsound person is removed till the time he is
the Crime mind is removed from the custody of sent to another place. Hence, it is a
his/her lawful guardian. Hence, it is not continuing offence.
a continuing offence.
 Aggravated forms of Kidnapping and Abduction

1. Section 363A of IPC makes Kidnapping for begging a punishable offence. The main
objective of this section is to punish those persons who organize the begging industry and
recruits people for the same. This practice has become a social evil now and grievous
punishment should be awarded to those who engage and exploit the children for the purpose of
begging.
The section makes maiming of a minor, kidnapping or obtaining his custody for evil purpose-
employing him to begging a punishable offence and provides him/her an imprisonment of 10
years or fine.

2. Section 364 of IPC provides that where the kidnapping or abduction takes place with the
object of murder, the accused shall be punished with imprisonment up to 10 years and fine.
Illustration: If ‘A’ takes ‘B’ forcefully and then carries him to such a place where he will get
murdered then that person will become liable under section 364 of IPC.

3. Section 364A of IPC makes those persons punishable who kidnaps and detains a person in
order to cause death or grievous hurt to that person and the action of the accused causes
reasonable apprehension in the mind of the person. The maximum punishment under this section
is the death penalty or life imprisonment and fine.
In the case of Akram Khan v. State of West Bengal 17, the Hon’ble Supreme Court held that
severe punishment must be awarded to those people who commit Kidnapping for Ransom even if
such kidnapping has not led to the death of anyone, as day by day, the number of such crimes is
getting increased. The judgement was also upheld later in the cases of Mlleshi v. State of
Karnataka18 and Vinod v. State of Haryana.19

17
AIR 2001 SC 116
18
AIR 2001 SC 4865
19
AIR 2008 SC 1142
4. Section 365 of IPC provides that kidnapping and abduction of a person with the intention of
secretly confining him and not letting him live freely are punishable with imprisonment up to 7
years and fine. While awarding punishment under this case, the court looks into the intention of
the wrongdoer. If the intention is found to be guilty then that person becomes liable under this
section.

5. Section 366 of IPC makes a person punishable who kidnaps or abducts a woman with the
intention of forcing her and compelling her to marry him. Such an act takes place without the
consent or will of the woman. The section also punishes those who kidnaps a woman in order to
have illicit intercourse with her.
If a woman above the age of 18 years goes to her husband voluntarily then no offence of
abduction will take place against the husband.
If the same offence as defined under Section 366 of IPC takes place against a girl who is minor,
then the offender becomes punishable as per the provisions of Section 366A of IPC which speaks
explicitly about the “procuration of the minor child”. Such kind of offence is cognizable, non-
bailable and can be tried by the court of session. The punishment awarded under this section
extends to imprisonment up to ten years and fine.

6. Section 366B of IPC punishes the persons who import a girl from the territory of a foreign
country to India with the intention of compelling her for illicit intercourse. Such a girl must be
below the age of 21 years. The punishment awarded in this case extends to an imprisonment of
10 years and fine.

7. Section 367 of IPC punishes those persons who kidnap or abducts someone with the intention
of inflicting hurt to him or to subject that person to slavery. This section provides imprisonment
to the offender to a period of 10 years and fine.

8. Section 368 of IPC punishes the offenders who conceal or keeps a person in confinement
after kidnapping or abducting him.
9. Section 369 of IPC punishes the offenders who are involved in the kidnapping and abduction
of a child (under the age of 10) in order to ask for money and steal the property of that child. The
punishment awarded in this section extends to the imprisonment of seven years and fine.

Conclusion
Kidnapping and Abduction are important specific offences and they have been drafted with the
objective of protecting the person of individuals. The Fifth Law Commission in its 42nd Report
has suggested changes to the definitions of both the offences.
Essential to combating trafficking of children is the co-operation between the legal systems, the
government bodies and the non- government bodies around the globe.

The passing of deterrent laws for the trafficker, as opposed to the victim is a step towards
reducing the occurrence of trafficking in children, however one must bear in mind that the
criminal mind will always find its ways to circumvent the laws passed.
Most societies are plagued by the malady of child trafficking, making it today a “global
phonomenan” yet it remains somewhat “unknown”. The exact magnitude of the offence is not
represented in terms of data and statistics and the exact modes of perpetration are still oblivion.
There is lack of awareness amongst citizens- possibly due to the chauvinism of start authorities
to disclose ills that effect national dignity and recklessness.

Co-operation amongst countries need to be fostered to counter this phenomenon, for instance by
uniformity in penal provisions between countries which would be welcome consideration to
reciprocal enforcement of protection and prevention in trafficking which is mainly a “cross-
border” crime. This uniformity can be achieved through ratification of international instruments
and national implementation of these international humanitarian instruments relating to
trafficking of children.

CONCLUSION
Essential to combating
trafficking of children is
the co-operation between
the legal
systems, the government bodies
and the non-government bodies
around the globe. The
passing of deterrent laws for the
trafficker, as opposed to the
victim is a step towards
reducing the occurrence of
trafficking in children, however
one must bear in mind that
the criminal mind will always
find its ways to circumvent the
laws passed.
CONCLUSION
Essential to combating
trafficking of children is
the co-operation between
the legal
systems, the government bodies
and the non-government bodies
around the globe. The
passing of deterrent laws for the
trafficker, as opposed to the
victim is a step towards
reducing the occurrence of
trafficking in children, however
one must bear in mind that
the criminal mind will always
find its ways to circumvent the
laws passed.

Bibliography
Bagga, K.K. Singh and R. Indian Penal Code. 2nd edition. Allahabad: The Law Book Company, 1994.

Gandhi, B.M. Indian Penal Code. 2nd edition. Lucknow: Eastern Book Company, 2006.

Mishra, S.N. Indian Penal Code. 14th edition . Allhabad: Central Law Publications, 2006.

Ratanlal, Dhirajlal. Indian Penal Code. 13th edition (Reprint 2004 edition). Nagpur: LexisNexis
Butterworth's Wadhwa, 2008.

lexforti.com/legal-news/kidnapping-and-abduction-ipc
Acknowledgement

On the successful completion of this assignment on ‘Kidnapping and Abduction’, I would like
to thank respected Professor Sonia who provided me all the assistance I need for completion
of this assignment. I thank her for providing me with this engrossing topic for work. It helped
me to learn and explore my knowledge on the changes and understanding on the concept of
Kidnapping and Abduction under Indian Penal Code.
Table of Contents
 Introduction.....................................................................................................................
 Kidnapping……………………………………………………………………………..
S-360 (Kidnapping from India)…………………………………………………………
S-361 (Kidnapping from lawful guardianship)………………………………………….
 Essentials of Section-361……………………………………………………………….
 R v. Prince
(Taking, Consent and a Reasonable mistake of fact)……………………………………
 Abduction………………………………………………………………………………
Introduction……………………………………………………………………………..
Punishment………………………………………………………………………………
 Essentials of S-362……………………………………………………………………...
 Difference between Kidnapping and Abduction……………………………………..
 Aggravated forms of Kidnapping and Abduction……………………………………
 Conclusion………………………………………………………………………………
 Bibliography…………………………………………………………………………….