Kidnapping means taking away a person against his/her will by force, threat or deceit. Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes etc. Kidnapping is classified into two categories in Section 359 of the Indian Penal Code and defined in Section 360 and 361 of the Indian Penal Code. Let’s understand these sections better.
As per Section 359 of the Indian Penal Code, Kidnapping is of two types:
- Kidnapping from India,
- Kidnapping from lawful guardianship.
These two types are explained in Section 360 and 361. Let’s look into them in detail.
Kidnapping from India
Section 360 explains kidnapping from India. According to section 360, if any person takes a person beyond the limits of India against the consent of that person or against the consent of someone who is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India is committed.
Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.
Kidnapping from lawful guardian
Section 361 explains kidnapping from lawful guardianship. According to this section, if a person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then that person commits the offence of kidnapping from lawful guardianship.
Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother, ‘Z’. ‘B’ ‘convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘B’ has committed the offence of Kidnapping from lawful guardianship.
State of Haryana v. Raja Ram, AIR 1973 SC 819
To understand this better let’s look at the case of State of Haryana v. Raja Ram.
‘J’ had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl’s father forbade ‘J’ from coming to their house and in response, ‘J’ started sending her messages through the respondent.
- One day, the respondent went to the girl and asked him to come to his house and later sent his daughter to bring her. At his house, the respondent told her to come to his house at midnight so that she can be taken to ‘J’.
- That night when she went to his house, the respondent took her to ‘J’.
Whether the respondent was guilty of the offence under section 361 of IPC?
The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:
- Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.
- The consent of a child is completely immaterial and only the guardian’s consent is relevant to decide whether the offence was committed or not.
- ‘Taking’ as mentioned in the Section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of minor to be taken away from his/her lawful guardian.
- In this case, the respondent was held guilty under section 361 as it was the respondent’s action which persuaded the prosecutrix from going out of her father’s keeping, against her father’s wishes.
Age of the Minor
Section 361 of the Indian Penal Code clearly states that minor is:
- A male under the age of 16 years,
- A female under the age of 18 years.
However, it must be highlighted here that in Manipur, the age of 18 years of females in section 361 is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians in Manipur, it would not result in kidnapping from lawful guardianship.
Moreover, the Allahabad High Court in Smt Suman and another. V. State of Uttar Pradesh gave a peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature enough to understand the consequences and rationale behind her action, leaves the guardianship of her parents to live with a boy who has in no way subjected her to any kind of pressure, inducement etc, i.t cannot result in an offence under section 361 of IPC and is not punishable.
Punishment for Kidnapping
Section 363 of the Indian Penal Code lays down the punishment for both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship).
The punishment prescribed in this section is :
- Imprisonment of either description which can extend up to seven years, and
Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal Code:
- Simple Imprisonment: This means that during the imprisonment, the prisoner is idle and is not required to do any hard labour.
- Rigorous Imprisonment: This means that during the imprisonment, the prisoner must engage in hard labour.
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