‘A’ a man went into a market where he saw a ten years old boy standing alone nearby a vegetable vendor shop, then he asked that boy if he desired of having chocolate. The boy answered him that he was waiting for his mother, after hearing to that boy ‘A ‘offered him that he would take him to his mother so he may come with him and requested him to walk with him. After that, the boy agreed to go with him. Since ‘A’ did not consist with the intention of taking such boy to a place of his mother but to take him for his own purpose, hence, this act done by ‘A ‘of taking a ten years old boy is known as Kidnapping. Therefore, ‘A’ kidnapped a ten years old boy who is a minor consisting age below eighteen years and without informing as well as permission of the legal guardians of such boy. In this article, I’m presenting the meaning, explanation of legal provisions, illustrations, and case laws regarding Kidnapping. Also, in this article, Kidnapping as an offence and punishment included in the Indian Penal Code, 1860 is also discussed.
MEANING OF KIDNAPPING
Kidnapping is a criminal offence in which accused takes any person by forcing or without consent and without any lawful consideration, in case of a person below the age of eighteen years is taken away with his consent or permission without knowing the intention of that person who takes away, is also called Kidnapping. In the late seventeenth century, Americans practised a system of stealing children for positioning them as a servant for the families of American colonies. Since from there only the concept of the offence was originated and the literal meaning of Kidnapping indicated that kid means ‘child’ and napping means ‘snatch away’.
NATURE OF OFFENCE
Kidnapping is an offence which is cognizable, bailable, non-compoundable, and triable by the magistrate of the first class as per the sections of Indian Penal code, 1860.
ESSENTIALS OF KIDNAPPING
Kidnapping is a crime which consists of two types that are Kidnapping from India and Kidnapping from lawful guardianship. There are some essentials which are required to consider the crime of kidnapping or we can say that the following are the ingredients which are the necessary part of Kidnapping.
- Kidnapping from India
- Devolving any person from India- Kidnapping from India comprise of this main element that is the act must contain transferring of any person from India.
- Without any consent- There must not be the consent of the person who is being transferred from one place of India to another country.
- Certain age for giving consent- There are certain age provided for giving consent, if consent according to the set age is given then there shall be no offence said to be committed. The age for the girl to provide consent is 18 years or above whereas a boy must attain the age of 16 years or above.
- Kidnapping from lawful guardianship
- There must be taking or enticing away of any person- An accused must take or entice any person away with him or transfers him or her. It is a very essential component of Kidnapping which involves taking or enticing away any person.
In the case of Varadrajan vs State of Madras, 1965, the court held that there must be the essential ingredient that is ‘taking away or enticing out of the lawful guardianship’ present in the act so as to consider the crime as Kidnapping, which was not included in the matter or the fact of the case. Hence, the court laid down that accused not guilty for the offence Kidnapping. This is the most important case of Kidnapping.
In the case of Biswant Mallick vs State of Orissa, the court provided the clear concept of taking and entice, also it distinguished the meaning of such two as mentioned in section 361 IPC. The court interpreted that the term taking refers make any person come with wherein there is no consent present with such person whereas enticing means inducing any person to come that totally based upon the mental level of the person.
- Person kidnapped must be the minor or unsound mind- Kidnapping involves the minor who is being kidnapped must be the age below 18 years or of 18 years if she is female and must be the age of 16 years or below if he is the male or unsound mind of any age.
- Keeping out of lawful guardianship- An accused must keep any person who is minor or unsound mind far from their lawful guardian. Also, the act of taking or enticing away such child from the lawful guardians must be done without lawful guardians. Here, the lawful guardian refers to that person who is entitled to be the person consisting of lawful custody of such child.
LEGAL PROVISION REGARDING KIDNAPPING
Chapter 16 of the Indian Penal code 1860 includes sections which deal with Kidnapping and its punishments. Section 359,360,361,363,363-A, 364,364-A, 365, 366, etc are regarding the offence Kidnapping. Some of the sections are discussed below with the suitable examples so as to provide a better understanding.
- Section 359- It talks about the two kinds of kidnapping which are named as Kidnapping from India and Kidnapping from a lawful guardian.
- Section 360- It deals with Kidnapping from India, this section says that any person takes any other person to outside India without consent of such other person or without permission of the person who may provide permission on behalf of such other person.
Example- ‘S’ is a man taking a girl by forcing and threatening her taking her to Pakistan without any required permission. In this case, the act of ‘S’ is considered to be Kidnapping according to section 360.
- Section 361- It provides the provision regarding Kidnapping from the lawful guardian. This section says that any person entices or takes away any of the following types of the person such as, first the person who is a Male having age below 16 years, second is that a person who is a female having age below 18 years and third is that a person of unsound mind who in mentality fit for taking the decision. Hence any person takes away such person from the custody of their legal guardian, without any permission from their legal guardian, shall be held liable for the offence under this section and considered to commit an offence of Kidnapping from the lawful guardian.
Example- ‘B’ is a person taken a boy of 7 yrs of age from his school without informing his lawful guardian and went very far away from the custody of his lawful guardian. This is the offence committed under section 361 as Kidnapping from the lawful guardian.
Moreover, this section contains an exception that is any person who believes himself the illegitimate father of any child and due to such believe he used to take the child without any permission from his legal guardian and having to believe of being entitled of lawful custody, is not to be said as Kidnapping from the lawful guardian.
In the case of Chandrakala vs Vipin Menon (1993)2 SCC 6: In this case, the supreme court laid down that the father being a natural guardian of the child not be charged with the offence of the kidnapping even if the allegation is that he had taken away the minor girl from the custody of her maternal grandfather with whom she was living in view of the strained relationship between the girl’s parents.
Also In the case of Ramji Vithal vs State: In this case, the court held condition on which there can be taken away without the permission of a guardian. In the case of divorce, the mother got the legal guardianship of the minor daughter and husband taken her daughter from the school without permission of her mother, hence, in this case, it was laid that shall not be liable for the offence of Kidnapping under section 361 of IPC.
And in the case of Deepchand vs State: In this case, there were two girls who attained the age of 17 yrs asked a person to take for site seeing, the court held that such person shall not be held guilty under section 361 of IPC.
- Section 363- It provides the punishment regarding Kidnapping by any person as according to the above sections. This section says that any person who kidnaps any other person from India or from lawful guardian shall be liable for the punishment under this section and punishable with imprisonment of either description which may be extended for seven years and also shall be liable for fine.
In the case of State of Haryana vs Raja Ram AIR1973 SC 819: In this case, the supreme court held, along with the charging the accused of raping the minor, also charged with section 361 of IPC as accused had played a very active role for making the victim come out of her lawful guardianship or custody of the lawful guardian.
Kidnapping is the crime against the humans who are minor or unsound mind and whose custody is contained with another person such as the lawful guardian of such minor, and Kidnapping simply refers to take away or enticing and devolve such minor or unsound person from the custody of their lawful guardian without the consent or permission of such guardian. Indian Penal Code,1860 defines Kidnapping under section 360 and 361 and also section 359 states the two types of kidnapping. Section 363 of IPC, lays down the shielding against the crime of kidnapping that is punishment for the criminal who commits such offence, it provides the punishment with 7 years imprisonment and liability of fine.