Tuesday, 15 February 2022

Kidnapping under IPC

 KIDNAPPING UNDER INDIAN PENAL CODE 

BY NUPUR GARG

INTRODUCTION 

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:

  1. Kidnapping from India,

  2. Kidnapping from lawful guardianship.

SECTION 360 IPC (KIDNAPPING FROM INDIA)

According to Section 360 of the Indian Penal Code 1860, 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 360 of Indian penal code defines kidnapping from India and section 363 of Indian penal code prescribes punishment for the offense. To invoke

Section 360 following ingredients are to be satisfied -

(1) That the person kidnapped was in India at the time of offense.

(2) That way accused conveys such person beyond the limits of India

(3) Without the consent of that person, or of someone legally authorized to consent on behalf of that person.

The offense under this section may be committed in respect of any person, male or female, major or minor and irrespective of his nationality.

SECTION 361 IPC (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.

Exception –

This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child unless such act is committed for an immoral or unlawful purpose.

Ingredients

To constitute an offense under this section the following ingredients are to be satisfied -

(1) There must be taking or enticing of a minor, or a person of unsound Mind;

(2) Such minor must be under 16 years of age if a male or under 18 years of age if a female

(3) Taking or enticing must be out of the keeping of the local Guardian of such minor or person         of unsound mind; and

(4) Taking or enticing must be without the consent of such guardian.

In the case of Thakori Lal D. Vadgama v. The State of Gujarat[vii], 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.

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.



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