The word kidnapping has been derived from the word; “kid” which in English means “a child”, and “napping” which means “to steal”. Therefore, the literal meaning of kidnapping stands to be stealing a child.
Section 359 of IPC divides kidnapping into two parts –
- Kidnapping from India provided under section 360 of IPC
- Kidnapping from lawful guardianship, provided under section 361 of IPC
The offence of kidnapping has a wide scope under the penal code as Sec. 359 and 361, IPC do not spell-out any territorial jurisdiction for committing the offence. Moreover, these provision is gender neutral which ensure the protection of male as well as girl child. The rigour of the law travels with the ward/ subject and any person involving himself or herself in the offence of kidnapping or procuring a minor girl at any point of time would also come within the purview of provisions of kidnapping.
KIDNAPPING FROM INDIA
Section 360 of IPC provides the meaning of Kidnapping from India and Section 363 of IPC lays down the punishment of the offence. The essentials of Section 360 of IPC are –
- A person must be taken away to a place which is beyond the limits of India.
- Such taking away of a person must be without his/her consent, or without the consent of the legally authorized person on his behalf.
The word “convey” under Section 360 of IPC means carrying a person to another destination. The words “beyond the limits of India” means that the moment a person is taken outside the geographical territory of India without his consent.
Example: ‘A’ kidnaps ‘B’ and tries to escape from the country but, on his way before reaching the other country, Police caught him. Here, the offence of kidnapping though not complete, amounts to the offence of attempt to kidnap from India.
KIDNAPPING FROM LAWFUL GUARDIANSHIP
Section 361 of IPC makes kidnapping from the lawful guardian an offence. It states that a minor person, below the age of sixteen in case of a male, and below the age of eighteen in case of a female, cannot be taken away without the consent of his/her parents or any lawful guardian who is to give consent on his/her behalf. This section also extends its protection to the people of unsound mind
The essential elements that are required for an act to be called as an offence under this section are:
- A person must take or entice another person
- The person who is taken must be either a minor, or a person of unsound mind
- In case of a male, the person must be below the age of 16 years, and in case of female, the person must be below the age of 18 years
- The taking of the person must take place out of the lawful guardian who has the authority over that person
- There must not be any consent of the lawful guardian in the process of taking or enticing the person[
In the case of Thakori Lal D. Vadgama v. The State of Gujarat, the accused was charged with the offence of enticing and taking a girl below the age of 15 years (minor) from the custody of the lawful guardian without his/her consent. The counsel on behalf of the accused contended that the girl came out of her guardian’s house as per her own will.
The court rejected the contention and convicted the accused stating that the word ‘entice’ is associated with an inducement and allurement by which one person gives hope of raises the desires of another.
If one person induces, promises or raises the desire of another (minor) by fancy words to leave her parent’s house then such a person will also be guilty of kidnapping and it would be prima facie difficult for him to plead innocence on the ground that the minor had come to him voluntarily.
However, if the minor comes to the accused leaving her lawful guardian completely uninfluenced, voluntarily by virtue of some promise or offers from the accused then in such a case, the accused cannot be held liable under Section 361 of IPC.
The term “lawful guardian” under Section 361 of IPC has a broader meaning. It states that the guardian must be lawful and not necessarily a legal guardian. In the case of Empress v. Pemantle, the court made a distinction between Legal guardian and lawful guardian. A legal guardian is the one who is appointed by law as a guardian. Such appointment is in relation to the law of the land and the person to whom he is appointed as a guardian.
Lawful guardian is the one who gets the custody of the minor by virtue of law. Thus, a legal guardian is also a lawful guardian. For example, when a minor goes to school, the principal and other teachers act as his lawful guardian as they have gained his custody by law, on the other hand, his parents are his legal guardian. Even during the office hours, the employer acts as the lawful guardian of the employees.
If the minor herself goes away from his/her guardian or abandons the guardian with the intention of not returning back then, she cannot be said to be under the custody of the lawful guardian. If the facts of the case make it clear that the minor girl left her father’s house voluntarily, being fully aware of the nature and consequences of her act and joins the accused then the offence of kidnapping does not take place and it amounts to a voluntary act.[x]
In the case of Taj Mohammad v. State of Madhya Pradesh, a minor girl named Ivy was in a relationship with the accused and both of them were quite intimate with each other. The accused visited her father’s house during Diwali and soon after this, the minor left her house. Later on, it was found that both of them were sitting next to each other in the Railway Station. Here the accused was held liable for kidnapping as the father was a lawful guardian of the minor girl, and all other ingredients necessary for Kidnapping were present in this case.
There is an exception to kidnapping under lawful guardianship. Section 361 does not apply to those persons who in good faith believes himself to be the father of an illegitimate child or in good faith believes that he possesses the lawful custody of such a child, until and unless such an act is committed with a guilty mind for fulfilling an improper or unlawful intent.
PUNISHMENT FOR KIDNAPPING
Section 363 of IPC provides the punishment for kidnapping from India or from the lawful guardianship with imprisonment up to seven years and fine.