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Kidnapping

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INTRODUCTION

In the terminology of common jurisdictions (BLACK’S LAW DICTIONARY) the crime of kidnapping is labeled as abduction when the victim is a woman. In the modern usage kidnapping or abduction of a child is often called child stealing particularly when done not to collect a ransom, but to a child permanently (often in case where parents are divorced or legally separated, where upon the parent does not have a legal custody; will commit the act; then also known as ‘child napping’). The word ‘kidnapping’ was originally “kid-nabbing” in other words slang used for child stealing but it is no longer restricted to the case of a child victim.[1]

Cases:

1. Lodged In Arthur Road Prison vs. Sewree Police Station on 8 September, 2008.

2. Amar Mishra vs. State Of Delhi on 23 September, 2011

Section 359

Kidnapping □ Under federal and state law, kidnapping is commonly defined as the taking of a person from one place to another against his will or her will, or the confining of a person to a controlled space. Some kidnapping laws require extortion or the facilitation of a crime. A parent without legal custody rights may be charged with kidnapping for taking his or her own child, in certain circumstances.
In Badlu Shah vs. Emperor[2] it was held that Kidnapping and abduction do not include the offence of wrongful confinement or keeping, in confinement, a kidnapped person[3].
The words ‘kidnapping’ and ‘abduction’ do not include the offence of wrongful confinement or keeping in confinement a kidnap

□ Kidnapping is of two kinds: 1. Kidnapping from India 2. Kidnapping from lawful guardianship.

Section 360

1. Kidnapping from India — whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.

Section 361

2. 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.[4]

Section 362

Abduction The offence of abduction is defined by section 362 of the Indian Penal Code. According to this section, whoever, by force compels, or by any deceitful means induces, any person to go from any place, is said to commit the offence of abduction. To constitute the offence of abduction the following ingredients must remain present: -

□ The offender enticed a person by deceitful means or by forcible compulsion to go away from any place

□ The offence of abduction was committed for any of the purposes enumerated in section 366 of the IPC.

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

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 that such minor may be employed or used for the purpose 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.[5]

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 to 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, t[6]hat 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— □ soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise; □ Entering on any private premises for the purpose of soliciting or receiving alms; □ Exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; □ Using a minor as an exhibit for the purpose of soliciting or receiving alms;

(b) ‘Minor’ means— □ In the case of a male, a person under sixteen years of age; and □ In the case of a female, a person under eighteen years of age.

Section 364

Kidnapping or abducting 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 life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.[7]

CLASSIFICATION OF OFFENCE 1. Punishment 2. Imprisonment for life or rigorous imprisonment for 10 years and fine 3. Cognizable 4. Non-bailable 5. Triable by Court of Session 6. Non-compoundable

Section 364A

Kidnapping for ransom
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 organization 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 365

Kidnapping or abducting with intent secretly and wrongfully to confine person
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section366

Kidnapping, abducting or inducing woman to compel her marriage, etc.
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 367

Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.
Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[8]

Section 368

Wrongfully concealing or keeping in confinement, kidnapped or abducted person
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.

Section 369

Kidnapping or abducting child under ten years with intent to steal from its person.—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.

Difference between Kidnapping and Abduction: -

1) The offence of abduction can be committed with respect to a person of any age. Likewise, the offence of kidnapping from India can also be committed with respect to a person of any age.

On the other hand kidnapping from lawful guardianship can only be committed with respect to a minor under 16 years of age, if male, and under 18 years of age, if a female. But the offence of kidnapping from lawful guardianship can be committed with respect to a person of unsound mind of any age.

2) In case of abduction, the offender must use compulsion, force, or deceitful means. But in kidnapping, the minor is simply taken away or enticed away.

3) In case of abduction or kidnapping from India, if the victim is capable by law of giving consent, the offence is not committed. But in case of kidnapping from lawful guardianship giving consent by the victim is immaterial or inoperative.

4) In case of kidnapping from lawful guardianship, the person kidnapped must be removed out of the custody of a lawful guardian. A person without a guardian can not be kidnapped. But abduction has reference exclusively to the person abducted.

5) Abduction is an auxiliary act, not punishable by itself, but made criminal only when it is committed with one or other intents mentioned in section 364 onwards of IPC. But kidnapping is a substantive offence, either from India or from lawful guardianship.

6) Kidnapping from lawful guardianship can not be abetted, but if there is a conspiracy, conviction for abetment can be sustained. But abduction or kidnapping from India can be abetted.

7) In case of kidnapping, intention of the offender is wholly irrelevant. But in case of abduction intention of the offender is an important factor.

*********************************

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[1] http://www.man.org.np/mdcampus/ppt/17-kidnapping%20and%20extortion-ranendra%20Man.ppt.
[2] AIR 1929 All 425
[3] Sarvaria SK, “RA Nelson’s Indian Penal Code” ed. 9th , Vol. 3, LexisNexis Butterworth’s Publications, New Delhi pg. 3512

[4] The words “lawful guardian” in this section includes any person lawfully entrusted with the care or custody of such minor or other person

[5] (a) A kidnaps Z from India, intending or knowing 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.

[6] Whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

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