Meaning of Kidnapping | Definition, Types, & Examples

Introduction

As we know that now Indian law has prohibited the act of Kidnapping or Abduction. These offences are in such a form which always curtail the liberty of an individual. And it also infringes the right to life under article 21 of the Constitution of India and human right.

meaning-of-kidnapping

Basically  the object of these provision in law is to provide the legal protection to children of tender age  from section 359 to 374 of the IPC 1860 which provide the punishment for these offences. If we talk about in UK's aspects then kidnapping is used for minors as well as adult but in India Kidnapping is used for minors only and Abduction is used for person of any age. In India there are substantive legislation which deals with the Kidnapping and Abduction like the Indian penal code 1860(from section 359to 369) Bombay prevention of begging act,1959 and immoral traffic(prevention)act,1956.

Meaning of Kidnapping

The Kidnapping is also known as child stealing. The literal mean of of Kidnapping means 'to take away a child or person' by forcefully or threat against his/her will.  Usually, It is seen that the purpose of kidnapping is to get ransom or may be some other purpose etc. The meaning of the word Kidnapping is not give in law, but the kinds of kidnapping is given under this code. 

According to Section 359 of the Indian penal code 1860 which says that there are two kinds of kidnapping 

  1. Kidnapping from India 
  2. Kidnapping from lawful Guardianship.

And these two types of kidnapping which are explained under section 360 and 361 of the Indian Penal code.

1. Kidnapping from India ( sec.360)

The first type of kidnapping is given under section 360 which talks about kidnapping from India. This section says that if a person is taking a person beyond the limits of India without the consent of that person or against the consent of someone who is legally authorised to give consent on behalf of that person then  the offence of kidnapping from India is committed.

As section 360 which uses the word 'beyond the limits of India' which convey if a person crosses the boundaries of the nation then the offence is said to be completed. So here it is not necessary that the person should reach their destination in other foreign territory and if a person is caught before crossing the boundary of a nation then it will not an offence under this section. Then it will treated as an attempt to commit the kidnapping from India and section 360 is applicable to both minor as well as legally major people. 

Example- X is a woman who is living in UP. Y takes X to Bangladesh without her consent. so here Y has committed the offence of kidnapping from India.

2. Kidnapping from lawful Guardianship

This is the second form of kidnapping given under section 361 of Indian Penal code. This  section talks about if a person takes away or entices a minor(male of 16 years of female of 18 years) or any person of unsound mind away from his/her lawful guardian, without consent of such guardian then that person is said to commit the offence of kidnapping from lawful Guardianship. 

The essentials of kidnapping from lawful Guardianship. 

  1.  A person who is minor or of unsound mind.
  2.  Taking away a child/adult from lawful guardian.
  3.  Without the consent of his/her gardian .

Let's discuss te point in brief

1. Age of the Minor 

According to section 361 of the Indian Penal Code which clearly states that minor should be less than 16 years in respect of male or less than 18 years in respect of female in order to constitute a crime under this section. Now it is up to the prosecution to prove the age at the time of committing of the kidnapping. Here, if  is someone is taking away child or adult from the lawful Guardianship and then the consent of guardian is relevant and not the consent of the minor. The concent of the guardian is only way that absolves the accused from criminal responsibilities but after the act of kidnapping the guardian's consent is totally irrelevant.

2. Taking and enticing

The Word 'taking and enticing' is not defined under this code. So the word 'taking' does not mean a forceful act. But the literal mean of enticing is to persuade or to allow or offer a desirable thing. According to Section 361 says that a person 'takes or entices' a minor his or her guardian against the will of the guardian then he will be liable for the offence of kidnapping from lawful guardianship.  Enticing is such an act of the accused which induces the person kidnapped by his/her own go to the kidnapper by his/her own wish. The act of Enticement is completely dependent upon the mental state of the person when the inducement happens. In the case of enticement the kidnapper convinces the minor to do something . It is also clarified that for the act taking, the mental attitude is irrelevant. 

Case- S. Varadarajan vs State of Madras, 1965  Facts of the case- Riya who was on the verge of attaining majority and she voluntarily left her father's house and she arranged to meet Shikhar at certain place and they went to the sub-registrar office where they registered and agreement to get marry and there was no evidence that Shikhar had taken her out of the lawful guardianship of her parents and no active part played by him to persuade her to leave the house. It was held that no offence is committed. 

Case- State of Haryana vs Raja Ram 1973      In this case the court held that only the consent of guardian is relevant to decide whether the offence was committed or not here it should remember that the consent of the child is totally irrelevant.

3. Keeping of lawful guardian

The provision used the term 'lawful guardian' not 'legal guardian'. So the term lawful guardian is much wider than the the legal guardian. This term is not only included natural parents but also others like teachers, relatives etc. who are lawfully entrusted with the duty of care of minor aur unsound mind  person. Legal guardian always appointed by the court like parents or guardians .

Note- The exception of these provisions are that if a person in good faith believes that he is entitled to the lawful Custody of a child and father of an illegitimate child then it will not be crime of kidnapping from lawful Guardianship.

Punishment for the offence of kidnapping

Punishment for kidnapping from India and kidnapping from lawful guardianship both is given under section 363 of the IPC which prescribe the punishment is imprisonment (rigorous or simple) of either description which may extend up to seven years and fine.

Abduction

Abduction is not an offence as it is accompanied with the intention to commit the crime. Suppose if a person who assaults and the intention is to abduct then it is an offence. Without such an intention abduction cannot be punishable. So, the offence of abduction is defined under section 362 of Indian penal code. Abduction is said to be an offence in which move from one place against his/her will by forceful compulsion or by use of deceitful means. 

Example- Here X slaps and hurts to Y daily and tells Y that if she would not leave with him then he would kill her. In this case X has committed the offence of abduction as he uses forceful means to take Y away from her house.

INGREDIENTS OF ABDUCTION

1. By Force 

In this case a person is forced to go from one place to another against his/her will. The use of force should be actual its not just a threat of force to constitute crime of abduction.

Example-  when an accused threatened the prosecutrix with the pistol to make her go with him it will be an offence of abduction under the section 362.

2. Deceitful means

According to Section 362 of Indian penal code, if a person is to be induced by Deceitful means its simply means to go from any place and is also considered as an offence. Deceitull means is actually an alternative 'to use of force'. Here a person can use force to compel or in the alternatives deceive a person to leave a place,it will amounts to abduction.

Example- X is a man who wears police officers uniform and convince a girl name Y to come to his house with him and because of this misrepresentation made by him she goes with him. Here, X uses deceitull means to commit the offence of abduction.

3. To go from any place

This is the essential element of Abduction to compel or induce a person to go from any place either forcefully or deceitfull means.

Case - Vishwanath vs State of Uttar Pradesh 1960  In this case court held that mere abduction of a person is not an offence at all. The guilty and wrongful intention should present for the offence of the abduction. 

Aggravated form of kidnapping or abduction

1. The offence of kidnapping or maiming a minor for begging is given under section 363A of Indian Penal Code

If a person kidnapped or obtained the custody of minor for the employment of begging and if he is not the lawful guardian and then he will be punished for impisonment up to 10 years and fine.

If a person maims a minor so that he can be employed in begging then he will be given punishment for life imprisonment and fine.

 The word 'maim' means to bound or injured a part of the body and become permanently damaged.

If a person is not the lawful guardian of a minor and he employs a minor in begging then it will be assumed by the court that such person had kidnapped the minor. The burden of proof lies on that person to prove that he is innocent.

2. Abducting or kidnapping to murder

According to Section 364 of Indian penal code says that if a person has kidnapped or abducted with intention or knowledge that such person is going to being murder or put in danger of being murder then such person will be given punishment for life imprisonment for 10 years, rigorous imprisonment and fine.

If the abducted person is dead then it is for accused to explain otherwise Court may presumed that the abductor caused his date even if it's not known to him who caused it.

3. Kidnapping for ransom

According to Section 364A of Indian penal code which provides severe punishment for abducting or kidnapping a person and keeping him continuously under detention and threatened him to cause death or hurt and also creating reasonable apprehension of death or hurt just to compel the government or any foreign state or international intergovernmental organisation or any other person to refrain from doing any act or to pay a ransom or demanded by the kidnapper and abductor.

Case - Netrapal vs. State(National Capital Territory of Delhi), 2001                                        

The court held that mere recovery of the letter assumed to have written by the appellant and keeping his letter of demand with him only did not convey his demand for ransom to release the child. The demand must be communicated.

Case-  Malleshi vs. State of Karnataka,2004             In this case, Court held that the demand for ransom had been conveyed to the victim and the offence was completed and it was also held that there cannot be a straight jacket formula that the demand for payment of ransom should always made to the person who is required to ultimately pay it.

4. Kidnapping or Abduction with intent to secret and wrongful confinement

According to Section 365 of Indian penal code which provides the punishment for a person who kidnapped or abducted with the intention of wrongfully and secretly confined him Shall be imprisonment of upto 7 years and fine.

5. Kidnapping or abducting a woman to compel her for marriage, etc.

According to Section 366 of the Indian Penal Code, which provides a punishment for a person who abduct or kidnap a woman with the intention to force her into marriage or having knowledge that he would be forced into marriage. This section also provide the punishment for a person who had kidnapped or abducted a person to force her into illicit intercourse or having knowledge that she would be forced into illicit intercourse.

Note-  Consent of minor girl for marrying with kidnapper is not a valid consent. It was clarified in the case of Thakorlal D. Vadgama vs. State Of Gujarat, 1973. 

6. Procuration of minor girl

According to Section 366 of Indian penal code which provides a punishment for those person who induces a girl below the age of 18 years to go from any place or to do an act or such intention she will be forced or seduced to engage in illicit intercourse with some person. And such inducement done intentionally or with knowledge that she will be forced to engage in such acts. The punishment given under this section is impressment up to 10 years and fine.

7. Importation of a girl from foreign country

According to section 366B which provides the punishment for the person who imports a girl of less than 21 years for prostitution from any foreign country to India, shall be punished for imprisonment upto 10 years and fine. 

Note - Section 366A and 366B provides the punishment for those person who exports and imports the girl for prostitution.

8. Kidnapping or Abducting to subject person to Grievous Hurt.

The word ' Grievous Hurt' is defined under section 320 of IPC. According to section 367 of the Indian Penal Code, provides the punishment for those person who kidnaps or abducts the person so that such person is subject to or put in danger of grievous hurt, slavery vor unnatural lust of any person shall punished either simple or rigorous imprisonment up to 10 years and fine.

9. Wrongfully concealing aur keeping in confinement a kidnapped or abducted person

According to Section 368 of the Indian penal court says that if a person knows that person had kidnapped or abducted and wrongfully confiance aur conceals such person would be punished as if he had kidnapped aur abducted the person with such an intention to keep your conceal in him.

10. Kidnapping or Abducting a child under 10 years with intent to steal from its person

According to Section 369 of the IPC, which provides the punishment to a person who kidnap or abduct a child under the age of 10years to steal any movable property from him/her, shall be punished with imprisonment upto 10years and also fine.

What is difference between Kidnapping and Abduction?

1. The two types of kidnapping defines section 359 i.e.  kidnapping from India given under section 360 and kidnapping from lawful guardianship given under section 361 whereas abduction is defined under section 362 of Indian penal code

2. In kidnapping, the age of minority in respect of male is 16years and female is 18years whereas the age of person is not an essential element to constitute the offence of abduction.

3. Kidnapping is not a continuing offence whereas abduction is continuing offence.

4. Kidnapping is an substantive offence as its general punishment is given under section 363 whereas abduction is an auxiliary offence as does not have a general punishment in General punishment in IPC.

5. In Kidnapping, the intention of the person is immaterial whereas in  abduction the intention is essential to determine the guilt of the accused.

Conclusion 

Here, I would like to conclude that these provision provides the protection to the child women in India and secure their fundamental rights of the Constitution like right to Liberty, freedom of a person these provisions punishes the person who kidnaps or abduct the child for begging and also those whose imports and exports the girl for prostitution. These provision provides the safety for children and women in India.

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