Kidnapping in India comes under the offences of affecting the human body of offences affecting life. It is listed in Article 359 of the Indian Penal Code 1860. The word kidnapping is made from two words, ‘kid’ meaning child and ‘napping’ meaning stealing which makes the literal meaning of kidnapping as child stealing.
Kidnapping is of two types. First is kidnapping from India which comes under section 360 of the IPC and second is kidnapping from lawful guardianship which comes under section 361 of the IPC. In many instances, these two types overlap each other. For example, a minor can be kidnapped from India and that too from a lawful guardianship. We will discuss both the sections in the coming paragraphs.
By the words of bare act, we can understand that Section 360 talks about that 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. However, if the person above the age of 16 in case of boys and 18 in case of girls has given consent to be moved beyond the territories of India, then no offence is committed. Previously the age limit was fixed to 12 years for both male and female but it changed after the Act of XLII of 1949.
Section 361 talks about that whoever takes or entices any minor under the age of 16 years in case of boys and 18 years in case of girls, or a person of unsound mind, without the consent of their lawful guardian keeps them away from their ward is said to have kidnapped such minor or person. But this section has a limitation that if a person in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be the lawful guardian of such child is said to commit no offence.
The main motive of this act was to protect the minor children from being seduced for improper purposes, and for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons.
To perform the offence of Kidnapping, there are certain essential ingredients which has to be followed.
- Taking and Enticing – the offence of kidnapping from lawful guardian is complete when the minor is actually taken from the lawful guardianship. The distance to which the minor is taken away is immaterial. Enticing is the act of accused by which the person kidnapped is induced of his own accord to go to the kidnapper. It involves the idea of inducement or allurement.
- Out of the keeping of the lawful guardian – the word keeping denotes the area within the protection or care of the guardian. The minor doesn’t always need to be in the physical possession of the guardian. When the minor is taken out of the area where the guardian no longer has any control over the child, the minor is said to be kidnapped.
- Without the consent of the lawful guardian – the consent of the child doesn’t matter because it is assumed that the child is incapable of giving valid consent. It is the decision of the guardian alone which is taken in consideration. A very interesting fact is that if the guardian gives consent after the commission of the offence, the accused will still be liable.
There are still few sections in Kidnapping in Indian Penal Code which are dealt briefly to counter kidnapping. They are as follows:
- Kidnapping or maiming a minor for begging (Section 363 A)
- Kidnapping in order to murder (Section 364)
- Kidnapping for ransom (Section 364-A)
- Kidnapping with intent secretly and wrongfully to confine person (Section 365)
- Kidnapping, abducting or inducing woman to compel her marriage (Section 366)
- Procuration of minor girl (Section 366A)
- Importation of girl from foreign country (Section 66B)
- Kidnaping in order to subject the person for grievous hurt, slavery (Section 367)
- Kidnapping a child under 10 years with intention to steal from its person (Section 369)
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