- 359. Kidnapping—Kidnapping is of two kinds: kidnapping from 1[India], and kidnapping from lawful guardianship.
- 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 requires two things:—
- Conveying of any person beyond the limits of India.
- Such conveying must be without the consent of that person.
Comments:
- Conveys means to take or carry or transport from one place to another. So, it is the physical act of taking, a person beyond the limits of India.
- The person must be conveyed without the consent of the person who is conveyed or the consent of the legally authorised person of the person so conveyed. So, it means that the conveyance may be of a major person or a minor or unsound person, beyond the limits of India.
- The words used in the section are “beyond the limits of India”. This means that the offence under this section is complete, the moment a person is taken outside the geographical territory of India. It is not necessary that the persons 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 offence will not be complete.
361. Kidnapping from lawful guardianship—
Object– The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards.
The essential ingredients of the section are:
- taking or enticing away a minor or a person of unsound mind,
- such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
- the taking or enticing away must be out of the keeping of the lawful guardian of such minor or person of unsound mind and
- such taking or enticing away must be without the consent of such guardian.
Analysis:
- “Taking” implies no active or constructive force. The word means “to go, to escort”.
- The consent of the minor child is of no relevance. Consent given by 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. Simply permitting or allowing a minor to accompany one will not amount to an offence.
- The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship.
- The word “entice” connotes the idea of inducement or pursuance by offer of pleasure or some other form of allurement.
- 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.
- The word “keeping”, in the context, connotes the idea of charge, protection, maintenance and control. It is not necessary that the minor should be under physical possession of the guardian. It suffices for the purpose of the section if it is under a continuous control of the guardian.
Section 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.
Ingredients—
The section requires two things:
- Forceful compulsion or inducement by deceitful means.
- The object of such compulsion or inducement must be the going of a person from any place.
Analysis:
- The term “force”, as embodied in section 362, IPC, means the use of actual force and not merely show of force or threat of force.
- The expression “deceitful means” includes a misleading statement. It is a matter of intention.
The intention of the accused is the basis and gravamen of the charge.
- Deceitful means misleading a person by making false representations and thereby persuading the person to leave any place.
- The offence of abduction under section 362 of the Code involves use of force or deceit to compel or induce any person to go from any place. Therefore, abduction per se 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.
Difference between kidnapping and abduction
| KIDNAPPING | ABDUCTION |
| (1) ‘Kidnapping’ is committed only in respect of a minor under 16 years of age if a male, and under 18 years if a female or a person of unsound mind; | (1) ‘abduction’, in respect of a person of any age. |
| (2) Person kidnapped is removed out of lawful guardianship. | (2) No such thing necessary. It has reference exclusively to the person abducted. |
| (3) Taken away or enticed to go away with the kidnapper. The means used are irrelevant. | (3) Force, compulsion and deceitful means are used. |
| (4) Consent of the person kidnapped is immaterial. | (4) Consent of the person condones the offence. |
| (5) Intent of the kidnapper is irrelevant. | (5) Intent of the abductor is the all important factor. |
| (6) Not a continuing offence. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship. | (6) It is a continuing offence. It continues so long as the abducted person is removed from one place to another. |
| (7) Kidnapping is a substantive offence. | (7) Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in section 364 to 366. |
| (8) Kidnapping outside India. | (8) Abduction may be anywhere within or without. |
