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Elements in Kidnapping

 ELEMENTS IN KIDNAPPING

By: Robin Pandey                                                                                             Date: 15/03/2022

First element: Taking or Enticing

In order to prove an offence under this Section the prosecution must show that the accused took some active part in the Victim's leaving the guardian's custody and taking shelter with him. Without taking or enticing there can he n no kidnapping. Simply permitting or allowing a minor to accompany a person will not amount to an offence. The word "takes" implies absence of the desire of the person taken. 

The expression "takes" does not necessarily connote "taking by the force" and it is not necessary in such cases that force, actual or constructive, should be used as the only means of causing a person to go. "Taking" in this Section necessarily involves bodily removal. The offence of taking is complete as soon as the minor is actually taken out of the custody of his or her guardian. The distance to which the minor is taken away is also immaterial (Chajju Ram, AIR 1968). Taking need not be constituted by a single act. A whole series of acts might together constitute the process of taking. When actual taking is completed, is a question of fact. Where two girls, were alleged to have been kidnapped from lawful guardian, categorically stated that they persuaded the accused to take them for an outing, the accused was acquitted [Deep Chand v. State, 2000].

There is a distinction between 'taking and enticing’. The mental attitude of the minor is immaterial in the case of taking' while the word 'entice' involves the idea of inducement or allurement (Biswanath Mallick v. State of Orissa, 1995). 'Enticing' is inducing a minor to go of her own accord to the kidnapper. It involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which the person kidnapped would not otherwise do. It is not necessary that 'enticing' would be by means of fraud. Persuasion by the accused would be sufficient to attract the Section. Anything which is likely to allure the minor girl would be sufficient. In Rekha Rai v. Emperor, 1928, Enticed a minor girl A to come out of the terrace to the road and then to the motor car in which Y was sitting, so that Y may drive away with her. It was held that the offence of kidnapping was completed only when he drove away with her.

Second element: A Minor person or any person of unsound mind 

The offence of Kidnapping may be committed in respect of (a) a male who is below 16 years of age; (b) a female who is below 18 years of age; and (c) a person of unsound mind. If the kidnapped girl turns out to be under 18 years of age, the kidnapper must take the consequences, even though he bona fide believed and had reasonable ground for believing that she was over 18 [R v. Prince, (1875). In the case of minor girls this Section is attracted irrespective of the question whether she is married or unmarried (State of HP v. Mt. Kala). The motive or intention of the kidnapper is immaterial (State v. Sulekh Chand, 1964). The defence that the girl was of easy virtue would not be sufficient to make accused not liable.

Third element: Lawful Guardian 

The explanation to Section 361 makes it clear that the words "lawful guardian' include any person lawfully entrusted with the care or custody of such minor or insane person. The word "lawful' is important and must be distinguished from the term "legal", which means quite a different thing. A guardian may be lawful without being a legal guardian. A legal guardian is necessary a lawful guardian, but not necessarily vice versa. The term lawful guardian is much more wider than legal guardian. Legal guardian would be parents or guardian appointed by courts. Lawful guardian would include not only legal guardian, but also such persons like a teacher, relatives etc., who are lawfully entrusted with the care and custody of the minor.

Fourth element: "Out of the Keeping

If a minor is not in the custody/keeping of a lawful guardian the Section is nou attracted. Keeping' implies within the protection and care of the guardian. In State of Haryana v. Raja Ram (1973) the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. However, it is not necessary that the girl should be in the physical possession of the guardian, a constructive control is enough. Therefore, a child walking on the street out of the house of his father is still under the guardianship of the father, and to entice away such a child constitutes kidnapping. 

Where father of a girl sends her to school with his servant or a friend, the child is still said to be in the father's possession or keeping even though the actual physical possession is temporarily with the servant or the friend [Jagannadhan Rao v. Kamaraja, (1900). Here father is the legal guardian and servant or his friend would be only lawful guardian. If a minor girl leaves voluntarily or stays out of her house, lawful guardianship continues. 

If the minor is not in the custody of a lawful guardian, the offence cannot be committed, whatever the belief of the taker may be. Thus, an orphan cannot be kidnapped. Similarly, where a minor abandons the house of her guardian of her own accord and has no intention of returning to the house, she cannot be held to continue in the keeping of her lawful guardian.

Fifth element: Without the Consent of such Guardian

In an offence of kidnapping the consent of the person kidnapped is immaterial. What is material is the absence of the element of consent of the guardian. It is only the guardian's consent which takes the case out of the purview of Section 361. Moreover, the consent of the guardian after the commission of the offence would be of no value. 

Consent must be legally obtained consent. Where a person by false and fraudulent representations induces the parents of a girl to allow him to take her away he would be guilty of an offence under this Section because it is no consent Hopkins, (1842). A, without the knowledge of the guardian takes away B a girl of 16 years old, from her house on her request. He restored her after one week. A will be liable for kidnapping because the offence is complete the moment a minor is deprived of lawful guardianship.
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