TOPIC 6

Kidnapping and Abduction

Relevant Provisions

SS. 359-363, 18, and 90 of the Indian Penal Code, 1860

SS. 137, 138 and 28 of the Bhartiya Nyaya Sanhita, 2023

Synopsis

Kidnapping (S. 359) Abduction Aggravated form

kidnapping &

Abduction

Kidnapping Kidnapping from S. 362 1. Kidnapping from maiming

from India lawful guardianship 2. K& D for murder (S.364)

3. Kidnapping for ransom 364A

(S.360) (S. 361) 4. K & A for wrongful confinement (S.365)

5. K &A to compel for marriage (S. 366)

Punishment (S. 363) 6. K&A in order to grievous hurt S. 367

6. K&A in order to grievous hurt S. 367

Kidnapping

1. Meaning-The word kidnapping is made of words ‘kid-child’ and ‘nap-sleep’. The

S. 367
literal meaning of the word ‘kidnapping’ is stealing of child during their sleep. The
offence of kidnapping is similar to ‘child stealing’ in the England.
2. Types- Section 359 of the IPC says that kidnapping is of two types-
1. Kidnapping from India (S. 360)
2. Kidnapping from lawful guardianship (S.361)
3. Kidnapping from India (S. 360)- 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.
4. Essential ingredients-
1. Conveying a person beyond the limit of India
2. Without the consent of that person or such other person legally authorized to
consent on behalf of that person
5. Conveys-It means to move or transports by any means or aking away a person to any
place.
6. Any person-This phrase connotes that this offence is not limited to minor or unsound
person but to sound person and major also.
7. Beyond the limit of India-The phrase ‘beyond the limit of India’ denotes outside the
geographical limits of India. The word India has been defined in section 18 of the IPC
as India means territory of India excluding the state of Jammu and Kashmir. But after
the State Reorganization Act, 2019 this definition of India must also include the
territory of Jammu and Kashmir in its domain.
8. Without Consent of that person-Consent may be express or implied but consent
taken by force or fraud would not a valid consent. Section 90 r.w. section 7 has
application here.
9. Legally authorized to consent-In case of minor or unsound person consent may be
given by guardian but again that consent has to be valid consent and may be express
or implied.
10. Purpose- 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 enforcement agencies.
Kidnapping from lawful guardianship (S. 361)
(Now 137 of BNS, 2023)
S. 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.
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 of the IPC has to read with Section 84 of ‘The Juvenile Justice (Care and
Protection of Children) Act, 2015.
Section 84 says that for the purposes of this Act, the provisions of the section 359-369
of the Indian Penal Code, 1860, shall be mutandis mutandis apply to a child or minor
who is under the age of 18 years and all the provisions shall be construed accordingly.

Age of Minor for the offence of kidnapping for lawful guardianship

Male- 16 years, for female- 18 years

After The Juvenile Justice (Care and Protection of Children) Act, 2015

Male or female- 18 years

BNS, 2023

Male or female- 18 years

1. Essential ingredients- Combing section 361 of the IPC, 1860 and section 84 of the
Juvenile Justice (Care and Protection) Act, 2014, there are for elements for this
offence.
1. Taking or enticing away a minor or a person of unsound mind
2. Such minor must be under age of 18 whether male or female.
3. Such taking or enticing away must be out of keeping of the lawful guardian of such
minor or unsound person.
4. Such taking or enticing away must be without the consent of such guardian.
2. Object of this section-The object of this section is to protect children and unsound
person from being taking or through allurement out of lawful guardianship. It also
 recognizes and protects the right of the guardian to control their wards. This offence is
equivalent to child stealing in the England.
3. Lawful guardian-Legislature has deliberately used the term lawful guardian instead
of ‘legal guardian’. The phrase lawful guardian is much wider term and general term.
‘Legal guardian’ would be parents or guardian appointed by law. Lawful guardian
would include along with legal guardian such other person like a teacher, relatives
etc., who are lawfully entrusted with care and custody of a minor (State v.
Harnabsigh Kisan Singh, AIR 1954 Bom 339).
4. Out of keeping of lawful guardianship-Removing the child from keeping of lawful
guardian by taking or alluring is the gist of the section. Keeping means within the
control. Supreme court in the case of State of Haryana v. Raja Ram, AIR 1973 SC
819, observed that word ‘keeping’ in this context connotes the idea of charge,
protection, maintenance and control. It is not necessary that minor should be under
physical possession of the guardian. Further the guardian’s charge and control appears
to be compatible with the independence of action and movement in the minor, the
guardian’s protection and control of the minor being available, whenever necessity
arises.
5. Taking-The word ‘taking’ does not require active or constructive use of force only
rather means ‘to go’ or ‘to escort’. But there must be some active role played by the
accused for taking the minor away. Simply by the permitting or allowing a minor to
accompany one will not amount to this offence. The consent of child is of no
relevance. Supreme court in the case of State of Haryana v. Raja Ram, AIR 1973 SC
819, observed that it is not necessary that the taking or enticing must be shown to
have been by means of force or fraud, persuasion by the accused person which creates
willingness on the part of the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section.

S. Natarajan v. State of Madras

AIR 1965 SC 942
1. Facts-Mr. S. Natarajan, who was assistant secretary to the Government of Madras,
used to live with his wife and two daughters, Savitri and Rama. Savitri, the younger
daughter became friendly with appellant S. Vardarajan. One day Rama found that
Savitri was talking with appellant. When Rama asked why she was talking with
appellant, Savitri told her that she wanted to marry appellant. The intention of Savitri
was communicated by Rama to their father. On the same day, S. Natarajan took
Savitri to Kodambakkam and left her at the house of his relative K. Natarajan.
 On the next day, October 1, 1960, Savitri left the house of K. Natarajan at about 10
AM and telephoned to the appellant asking to meet her on a certain road in that area
and then want to that road herself. By the time she got there the appellant had arrived
in his car. She got into it and both of them went to Registrar office for getting
married. Appellant was prosecuted for the offence punishable under section 363 of the
IPC.
2. Case History- Trial Court
Conviction
High Court
Conviction
Supreme Court
Acquittal
3. Issue-Whether appellant has kidnapped the Savitri out of keeping of lawful
guardianship?
4. Arguments-Appellant has made two fold contentions-
1. First that Savitri had abandoned the guardianship of his father.
2. Second that the appellant act, did not in fact constitute ‘taking away’ Savitri out of
the keeping of her lawful guardian, which is essential for the offence.
5. Decision-Apex Court observed that taking or enticing away a minor out of keeping of
a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are
not concerned with enticement but what we have to find out is whether the role played
by the appellant amount to ‘taking’ out of the keeping of the lawful guardian of
Savitri.
Court held that there is no doubt that though Savitri had been left by S. Natarajan at
the house of his relative K. Natrajan, she was still continued to be in the lawful
keeping of his father, S. Natrajan.
There was not a single word in the deposition of Savitri from which an inference
could be drawn that she left the house of K. Natarajan on, Ist October, 1960, at the
instance or even on a suggestion of the appellant. She was about of come of age and
educated girl. The appellant, by complying with her wishes can by no stretch of
imagination be said to have taken her out of the keeping of her lawful guardian. The
fact of her accompanying the appellant is quite consistent with Savitri own desire to
be the wife of appellant. In these circumstances, there is nothing from which inference
can be drawn that appellant was guilty of kidnapping. Law did not cast duty on the
appellant to take back Savitri to her father’s house or even telling her not to
accompanying him.
6. Enticing-‘Entice’ means allurement. The word entice connotes the idea of
inducement or pursuance by the offer of pleasure or some other form of allurement.
This may work immediately or it may create continuous and gradual but
imperceptible impression culminating after some time in achieving its ultimate
purpose of successful inducement. Inducing a minor girl by promise of marriage
amount to enticement within the meaning of the section.
State of Haryana v. Raja Ram
(1973) 1 SCC 544
1. Facts-One Jai Narain, once visited to the house of Narain Das for treating the ailing
two sons of Narain Das. When these bous cured by Jai Narain, Narain Das started to
treat Jai Narain as his Guru. Jai Narain started frequent visits to the house of Narain
Das and apparently developed affair with the daughter of Narain Das, Santosh Rani.
He promised her to keep like a queen, with nice clothes to wear, good food to eat and
servant at her disposal. He further persuaded that in his family, she had to work with
without proper food and clothes. When Narain Das, come to know that Jai Narain has
evil eyes on her daughter, he asked Jai Narain not to visit his house and reprimanded
Santosh Rani.
After prohibition on the visit of Jai Narain to the house of Naraina Das, he started to
send messages to prosecutrix through Raja Ram. On the best of Jai Narain, Raja Ram
persuaded Santosh Rani to go with him to the house of Jai Narain. On April 4, 1968,
Raja Ram contacted the prosecutrix for the purpose of accompanying him to Jai
Narain’s house. Raja Ram through his daughter, Sona called Prosecutrix to his house
and conveyed a message that she should come to his house in the midnight to visit Jai
Narain’s House. In the midnight she accompanied her to the place of Jai Narain.
2. Case History- Additional Session Judge
Conviction
High Court
Acquittal
Supreme Court
Conviction
3. Issue- Whether act of the accused Raja Ram amount to kidnapping of Santosh Rani
from her lawful guardians.
4. Arguments- The counsel of the accused, Raja Ram contended that accused did not
went to the house of prosecutrix to persuade her and bring her from there. She chose
to come at the home of the accused when her family members were sleeping at the
 dead hous of night. Soon after reaching the house of accused, which was waiting for
her. This suggests that accused mere agree to accompany her. These facts leave no
doubt that she was neither enticed not taken her by the accused, Raja Ram out of the
keeping of the lawful guardian.
The word ‘take’ implies want of wishes and absence of desire of the person taken.
Once the act of going on the part of the girl is voluntary and conformable to her own
wishes and the conduct of the girl leaves no doubt that it is so. Raja Ram appellant
could not be held to have either taken or seduced the girl.
5. Decision- Supreme Court observed Once the evidence of the prosecutrix is accepted,
in our opinion, Raja Ram cannot escape conviction for the offence of kidnapping her
from her father’s lawful guardianship. It was not at all necessary for Raja Ram to have
himself gone to the house of the prosecutrix to bring her from there on the midnight in
question. It was sufficient if he had earlier been soliciting or persuading her to leave
her father’s house to go with him to Jai Narain. It is fully established on the record
that he had been conveying messages from Jai Narain to the prosecutrix and had
himself been persuading her to accompany him to Jai Narain’s place where he would
hand her over to him. Indisputably the last message was conveyed by him to the
prosecutrix when she was brought by his daughter Sona from her own house to his
and it was pursuant to this message that the prosecutrix decided to leave her father’s
house on the midnight in question for going to Raja Ram’s house for the purpose of
being taken to Jai Narain’s place. On these facts it is difficult to hold that Raja Ram
was not guilty of taking or enticing the prosecutrix out of the keeping of her father’s
lawful guardianship. Raja Ram’s action was the proximate cause of the prosecutrix
going out of the keeping of her father and indeed but for Raja Ram’s persuasive offer
to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her
father who was her lawful guardian, as she actually did. Raja Ram actively
participated in the formation of the intention of the prosecutrix to leave her father’s
house.
Thakorlal D. Vadgama v. State of Gujarat
(AIR 1973 SC 2313)
1. Facts-The appellant, an industrialist, had a factory for manufacturing oil engine and a
residential bungalow adjoining it. The family of prosecutrix, Mohini, A school going
girl of age 15 years, came to reside temporarily at Bhrol near Jamnagar. Father of
Mohini wanted to get employed by the appellant. Appellant presented a Parker pen on
her birthday and developed affairs with her. Once Mohini’s mother saw appellant was
sleeping by Mohini’s side and with his hand on her head. The she informed this to
 Mohini’s father and requested to appellant to desist. Early in January, 1967, the
appellant is alleged to have told Mohini to come at his bungalow.
On January 16, 1967, Mohini started for her school in company of her mother
Narmada, who had to go to court for some work. Smt. Narmada stayed on and Mohini
proceeded to her school. But she went to the factory of the appellant as per previous
arrangement. There the appellant met her and took her inside his motor garage. From
there she was taken to the attached room and made to write two or three letters on
appellant dictation. These letters contains complaints of ill treatment by her parents,
and the fact that she is leaving to Bombay. These letters were addressed to his father,
deputy Superintendent and appellant himself. Then he raped her.
2. Case History- Session Judge of Jamanagar

Conviction for both rape and kidnapping

High Court

Acquittal for rape and conviction for kidnapping

Supreme Court
3. Issue- Whether the act of appellant amount to kidnapping of the prosecutrix Mohini?
4. Arguments-The appellant main argument was that Mohini, was not feeling happy and
perhapas harassed in her parent;s house, left it on her own accord and come to the
appellant’s house for help which appellant gave out of compassion and sympathy for
a helpless girl in distress. Mohini parents were unreasonably harsh on her on account
of some erroneous or imaginary suspicion of attitude of the appellant towards their
daugther. It was Mohini’s parents insulting and stern behavior towards her which
induced her to leave her parental home.
5. Decision-Supreme Court observed the expression used in Section 361, I.P.C. is
“whoever takes or entices any minor”. The word “takes” does not necessarily connote
taking by force and it is not confined only to use of force, actual or constructive. This
word merely means, “to cause to go”, “to escort” or “to get into possession”. No
doubt it does mean physical taking, but not necessarily by use of force or fraud. The
word “entice” seems to involve the idea of inducement or allurement by giving rise to
hope or desire in the other. This can take many forms, difficult to visualise and
describe exhaustively; some of them may be quite subtle, depending for their success
on the mental state of the person at the time when the inducement is intended to
 operate. This may work immediately or it may create continuous and gradual but
imperceptible impression culminating after some time, in achieving its ultimate
purposes of successful inducement. The two words “takes” and “entices”, as used in
Section 361, I.P.C. are in our opinion, intended to be read together so that each takes
to some extent its colour and content from the other. The statutory language suggests
that if the minor leaves her parental home completely uninfluenced by any promise,
offer or inducement emanating from the guilty party, then the latter cannot be
considered to have committed the offence as defined in Section 361, I.P.C. But if the
guilty party has laid a foundation by inducement, allurement or threat, etc. and if this
can be considered to have influenced the minor or weighed with her in leaving her
guardian’s custody or keeping and going to the guilty party, then prima facie it would
be difficult for him to plead innocence on the ground that the minor had voluntarily
come to him.

7. Punishment- shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine

Abduction (S. 362)

S. 362. Abduction- Whoever by force compels, or by any deceitful means induces,
any person to go from any place, is said to abduct that person.
1. Essential ingredients-There are two ingredients of this-
1. Forcible compulsion or inducement by deceitful means
2. By such compulsion or inducement going of a person from any place.
Therefore, abduction is continuous offence. Abduction is not per se punishable rather
when it is accompanied by certain intent to commit another offence.
2. By force-The word ‘force’, means actual use of force as defined in the section 349,
which means actual use of force, and not merely shows of force of threat of force.
Where an accused threatened the prosecutris with a pistol to make her go with him,
amount to abduction.
3. By deceitful means-Deceitful means is used as an alternative to ‘use of force’.
Deceitful means misleading a person by making false representation and thereby
persuading the person to leave any place.
4. To go from any place-It is need not be only from the custody of lawful guardian as in
case of kidnapping. A person is being abducted not only when he is first time taken
away from any place, but also when he subsequently removed from aone place to
another. When a woman is passed from hand to hand in several places, each of the
persons will be said to cause abduction.
Difference between Kidnapping and Abduction
Sl No. Kidnapping Abduction
1. Kidnapping from lawful Abduction may be in respect of
guardianship is only in respect of person of any age.
minor or of a unsound person
2. Removal out of lawful guardianship Going from any place constitute
is essential. abduction
3. Taking or enticement are two Forceful compulsion or deceitful
means of used for kidnapping inducement are means used for
abduction
4. Intention of kidnapper is irrelevant Intent of abductor is all important
factor
5. Consent of person kidnapped is Consent of person abducted
immaterial condone the offence
6. It is not a continuing offence It is a continuing offence
7. Kidnapping is a sustainable Abduction is an auxiliary act.

Aggravated form Kidnapping and abduction

Section 363 A punishes kidnapping of a minor or, not being the lawful guardian of a
minor, obtains the custody of the minor, in order that such minor may be employed or
used for the purposes of begging.
Similarly kidnapping or abduction of 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 is
punishable by section 364 with, imprisonment for life or rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine
Section 364 A says that 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 international inter-governmental
organisation or any other person to do or abstain from doing any act or to pay a
ransom, is punishable with death, or imprisonment for life, and shall also be liable to
fine.
Section 365 prescribes punishment for kidnapping or abducting with intent secretly
and wrongfully to confine person. When a person commits kidnapping, abducting or
inducing woman to compel her marriage, will be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to
fine under section 366 of the IPC.
Kidnapping or abducting in order to subject person to grievous hurt, slavery is
punishable with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine (Section 367). Wrongfully concealing or
keeping in confinement, kidnapped or abducted person is punishable under section
368. Section 369 says whoever kidnaps or abducts any child under the age of ten
years with the intention of taking dishonestly any movable property from the person
of such child, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.