All about Kidnapping and Abduction under Indian Penal Code
By Shweta Nair
Kidnapping under Indian Penal Code begins with Section 359 which is a clarificatory section. It merely states that kidnapping is of 2 kinds: -
Kidnapping from India
Kidnapping from Lawful Guardianship
Kidnapping from India
Section 360 states that whichever person transports or carries any other individual beyond the limits of India with no consent of that individual or with no consent of some other individual who is legally authorized to consent on that particular individual’s behalf is said to kidnap from India.
Any person who is a citizen of our country enjoys certain privileges merely by reason of the fact that he is such a citizen. However, these privileges would not be available to him beyond the boundaries of India. And therefore, the law has made any act wherein one person conveys another beyond the limits of India without his consent, a punishable offence.
Kidnapping from Lawful Guardian
Section 361 states that,
Whichever person takes or lures any minor who is below the age of 16 years for males and below the age of 18 years for females or any person who is of unsound mind, out of the safekeeping and care of the lawful guardian, with no prior consent of the lawful guardian is said to kidnap from lawful guardianship.
The genesis of the offence of Kidnapping from Lawful Guardianship lies in the anxiety of the framers of the law to afford protection to a certain class of people that is young children of impressionable age who have not developed the requisite maturity of understanding to know what is good or bad for themselves. The idea being that even though the intention of all law is to protect the individuals in the society, the protection needed by all persons cannot be uniform. For example, the protection required by a frail 9-year-old girl cannot be the same as required by an able bodied 30-year-old man. However, this category has to be properly defined. Therefore, for the offence of Kidnapping from Lawful Guardian, the victim has to belong to the category.
The difference of age of 2 years between males and females is to afford a little bit of additional protection to young females who in the very nature of things are more prone to be victims of the carnal lust of the society. Persons of unsound mind are also included in the victim category. Because in the case of such persons, even though they may be of physically advanced age, mentally they are mere children.
The next question which arises is:
‘What is the protection which is to be given to such a minor’. Here the law feels that the interest of such minors is best subserved so long as they are in the custody of their lawful guardian and merely taking such persons out of the keeping of such lawful guardian without the consent of lawful guardian is itself a crime. It is important to note that the section does not include any state of mind to be revealed of the accused. Hence, the offence of Kidnapping from Lawful Guardian is an exception to the doctrine of Mens Rea.
It is also to be noted that obviously the consent of the minor is immaterial.
It is also to be noted that the term lawful guardian does not only mean the parents of the minor but includes any person legally entrusted with the custody of the minor.
Another requirement of Section 361 is that the accused has to take away the victim out of the keeping of the lawful guardian. This does not mean that the minor has to be taken away from her home. This protection of the lawful guardian is like an invisible shell which moves with the minor wherever he or she goes.
Therefore, even a case where the accused has taken away the minor from her college or railway station would amount to taking out of keeping. In Varadarajan v. State of Madras, where the minor girl was pact away to her relative’s house in order to prevent her having any friendship with the accused and where the minor of her accord abandoned her uncle’s house and called the accused to come and pick her up from the highway, it was held that taking out of the keeping was not satisfied and hence the accused was not guilty.
However, in Thakorilal Vadgama v. State of Gujarat, where the facts were almost identical but the difference being that there was a history of the accused telling the victim that we should elope. The court held that he would be guilty. The court stated that the difference between the two cases was, in Varadarajan’s case, at no point of time did Varadarajan suggest to the victim that they should run away together. In Vadgama’s case, the accused was guilty of planting the seeds of allurement in the mind of minor girl.
Where the victim does not belong to the category of age limit prescribed for males and females or cases where the victim has no lawful guardian, the IPC deals with such cases under Section 362 which is the offence of abduction.
It states that, whichever person by force coerces or by dishonest means persuades another individual to go from nay place is said to abduct that individual.
Though Kidnapping has a penal section in Section 363 prescribing punishment for it, abduction has no penal section which means it is not culpable unless it is done with objects mentioned in subsequent sections.
The severity of offence of kidnapping and abduction and consequent punishment increases if done for objects like- to murder, for ransom, for begging, to secretly and wrongfully confine, of a woman to compel her marriage, for slavery, for trafficking etc.