Tuesday, 31 May 2022

Kidnapping and Abduction with relevant case laws

 Kidnapping and Abduction with case laws (Offences against human body)

Kidnapping and abduction is mentioned in Section 359-374 of IPC
Section 359 of IPC speaks about two kinds of kidnapping :
Kidnapping from India and kidnapping from lawful guardianship.

Section 360 of IPC speaks about kidnapping from India .

It means carrying or taking away a person and such taking away should be beyond the limitations of India or outside the territorial borders of India without the consent of that person or a person’s legally authorised person.
The intention in this base of offence is not considered. Kidnapping from India would account to offence , no matter what the intention of the person is.

Section 361 of IPC speaks about kidnapping for lawful guardianship.

It means taking away a person or compelling a person of less than 16 years of age in case of male ,18 years of age in case of female and a person of unsound mind to come along by deceitful means viz by communicating false advantages he/she would get if the agreed to be taken to place or by offering pleasure to the person .
For example – Mr. Antonio offered sweets to random child he met on the streets in lieu of coming along with him.
It would amount to kidnapping from lawful guardianship if the child Is taken away without the consent of lawful guardianship. Children till they attain the age of maturity as stated legal are under the guardship of parents or guardian appointed by the court or who has the custody of the child.
There’s an exception to this – If such an act is done in good faith basically without any ill intention (Thinking that he is the father of illegitimate child).
An offence becomes complete if there is mens rea as well actus rea in both thee above mentioned section .

Section – 362 speaks about Abduction
It says that whoever by forceful means moves a person from one place to the other without the consent of that person can be accounted as abduction of that persom. It also says whoever by deceitful means (by offering false advantages or stating untrue facts) convence a person to move to another place would also account to abduction.
Abduction itself is not an offence , until and unless all the essential elements mentioned above does not exist , it won’t amount to abduction.
Abducting applies to every age group.

Case law
In the case of , S Varadarajan v. State of Madras, AIR 1965 SC 942
This case screens what taking away in section 360 and 361 depicts

In this case the girl in question was about to attain the age of majority when she left her father’s house voluntarily to get married to a boy. The accused person is the boy whom she married at the registered office. Here there was nothing to prove as the girl voluntarily left the house and the boy did not have any role to persuade the girl to do so. hence it would not amount to offence under section 361.

Case law : Ramji Vittal v. State 

This case clearly highlights “ taking away without consent of guardian”

So , In this case the female child was a minor and the parents got divorced in which the mother got the legal guardianship of the daughter or say custody of her daughter.

The divorced husband without the consent of the mother took away his daughter from the school .This would amount to offence committed of kidnapping from lawful guardianship.

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