Introduction

Kidnapping is a criminal offence that violates an individual’s Fundamental Right to Life and Liberty enshrined under Article 21 of the Constitution of India, 1950 (COI).

• Chapter XVI of the Indian Penal Code, 1860 (IPC) states the offence of Kidnapping.

Relevant Provisions

• Section 359 of IPC states that Kidnapping is of two kinds:
  • kidnapping from India
  • kidnapping from lawful guardianship
• Section 360 of IPC defines Kidnapping from India.
  • This Section states that whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India.
• Section 361 of IPC defines Kidnapping from lawful guardianship.
  • It states that 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Key Elements of Kidnapping

• Elements to constitute the offence of Kidnapping are:
  • Taking Away or enticing- Kidnapping involves either physically taking away or enticing someone away from their lawful guardianship or place of safety.
  • Without consent- The action must be done without the consent of the person or their lawful guardian.
  • Intent- There must be an intention to commit the offence.

Punishment

• Section 363 of IPC states the punishment for Kidnapping from India and from lawful guardianship with imprisonment of either description which may extend to seven years and shall also be liable for fine.

Offences Related to Kidnapping

• Sec 363A of IPC deals with kidnapping or maiming a minor for purposes of begging.
  • It states that anyone who kidnaps or unlawfully takes custody of a minor (male under 16 and female under 18) for begging shall be punished with imprisonment upto 10 years and fine.
  • Anyone who maims a minor to use them for begging shall be punished with imprisonment for life and fine.
• Section 364 of IPC deals with kidnapping or abducting in order to murder.
  • This section covers the act of kidnapping or abducting a person with the intent to murder or put them in a situation where they are likely to be murdered. It prescribes punishment of imprisonment for life or rigorous imprisonment upto 10 years and fine.
• Section 364A of IPC deals with kidnapping for ransom, etc.-
  • It states that anyone who kidnaps, abducts, detains a person or causes or threatens to cause death or hurt in order to compel the government to do an act or abstain from doing any act or to pay ransom shall be punished with death, imprisonment for life and fine.
• Section 365 of IPC deals with Kidnapping or abducting with intent secretly and wrongfully to confine person punishable with imprisonment of either description upto 7 years and fine.
• Section 366 of IPC deals with Kidnapping, abducting or inducing woman to compel her marriage, etc.- with an intent to:
  • Compel her to marry against her will.
  • Force or seduce her to illicit intercourse
  • Shall be punished with imprisonment (simple or rigorous) upto 10 years and fine.
• Section 367 of IPC deals with Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. shall be punishable with imprisonment upto 10 years and fine.
• Section 369 of IPC deals with Kidnapping or abducting child under ten years with intent to steal from its person any movable property shall be punished with imprisonment upto 7 years and fine.

Case Laws

• In Prakash v. State of Haryana (2004), Supreme Court observed that under Sec 361 of IPC the consent of the minor who is taken or enticed is wholly immaterial. It is only the guardian's consent which takes the case out of its purview. Also, it is not necessary that taking or enticing must be by force or fraud. Persuasion by accused creating willingness on part of minor is sufficient to attract this section.
• In State of Haryana v. Raja Ram (1974), the Supreme Court upheld the conviction of the accused under section 361 of IPC and clarified that taking or enticing a person out of their lawful guardianship amounts to kidnapping. The Hon’ble Court also established that the consent must be free and voluntary and any coercion or force used to obtain such consent would invalidate it.
• In S. Varadarajan v. State of Madras (1965), the Supreme Court noted that ‘taking’ and ‘allowing’ a minor to accompany a person should not be regarded as the same thing.