INDIAN PENAL CODE

PROJECT REPORT

ON

KIDNAPPING
(SECTION 359,360,361,363)

SUBMITTED TO: SUBMITTED BY:

DR. PUSHPINDER KARANBIR SINGH

BA.LLB

86/1

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and organizations. I would
like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Pushpinder Kaur for her guidance and constant
supervision as well as for providing necessary information regarding the project &
also for their support in completing the project.

I would like to express my gratitude towards my parents. for their kind co-
operation and encouragement which helped me in completion of this project. I
would like to extend my sincere thanks to my friends who guided me throughout
this project.

I would like to express my special gratitude and thanks to the library staff for
assisting me in finding books for my project.

Contents
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PROJECT REPORT..........................................................................................1
ACKNOWLEDGEMENT.....................................................................................2
INTRODUCTION.............................................................................................4
Kidnapping under IPC.....................................................................................5
Keeping of Lawful Guardian.............................................................................8
Recent Case Laws..........................................................................................9
INCIDENTS OF KIDNAPPING AND ABDUCTION IN INDIA...................................12
STATE WISE ANALYSIS OF KIDNAPPING AND ABDUCTION................................12
BIBLIOGRAPHY............................................................................................14
Webliography..............................................................................................14

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 INTRODUCTION

Chapter XVI of the Indian Penal Code 1860 relates to Offences Affecting Human Body starting
from section 299 to 377 and it is the largest chapter of IPC. This clearly indicates the importance
attached to the preservation and protection of right to life and liberty- the two most precious
rights guaranteed under article 21 of the Constitution. Broadly speaking, the offences discussed
under this chapter cover every aspect of human life. For instance, it aims at protecting the
primary personal rights to life, liberty, security of person, freedom of person, freedom of
movement and enjoyment of one’s person against intentional invasion by others.

Offences against custody and security Section 359 to 369 of the Indian Penal Code have made
kidnapping and abduction punishable with varying degree of severity according to the nature and
gravity of the offence. The underlying object of enacting these provisions is to secure the
personal liberty of citizens, to give legal protection to children of tender age from being abducted
or seduced for improper purposes and to preserve the rights of parents and guardians over their
wards for custody or upbringing.1

The word kidnapping have been derived from the word ‘kid ‘meaning child and ‘napping‘ to
steal. Thus kidnapping literally means child- stealing.2

In the words of ‘Sir Hari Singh Gaur: At common law the term kidnapping consists of stealing
and carrying away, or secreting any persons, whether in the same country, or by sending him
away from his own country into some other, or to parts beyond the seas whereby he is deprived
of the friendly assistance of the laws to redeem from such captivity. The offence of kidnapping is
an aggravated form of wrongful confinement and is therefore, an offence in which all the
elements of that offence are necessarily present. It is however, confinement of such a serious
form that the code treats it as distinct offence. But kidnapping does not include the offence of
wrongful confinement or keeping in confinement of a kidnapped person.

1
Pillai P.S.A, Criminal Law, Lexis Nexis
2
Misra S.N, Indian Penal Code, Central Law Publications, Allahabad

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 Kidnapping under IPC

According to Section 359 IPC. Kidnapping is of two kinds:

1. Kidnapping from India

2. Kidnapping from lawful guardianship

Kidnapping in any form curtails the liberty of an individual. Essentially, it impinges the right
to life guaranteed under article 21 of the Constitution of India and human rights. It causes
terror in the mind of the people and has deleterious effect on civilized society.

Kidnapping from India.

As per the section 360 of Indian Penal Code, Kidnapping from India means ―Whoever convey
any person beyond the limits of India without the consent of that person, or of some person
legally authorized to consent on behalf of that person is said to kidnap that person from India.
Section 360 IPC defines kidnapping from India and section 363 IPC prescribes punishment for
the offence. For an offence under this section the victim may be a male or a female, whether
major or a minor and irrespective of his nationality. This offence consists of the following
ingredient.

1. Conveying of any person beyond the limits of India

2. Such conveying must be without the consent of that person.

Conveying without consent- The word ‘convey ‘literally means simply going together on a
journey put in popular parlance, it now means carrying a person to his destination. Thus the
offence would not be complete until the person actually reaches not only a foreign territory but to
his destination as well. Mere conveying of a person from one place to another is not criminal.
The act becomes criminal if he is conveyed without his consent. It is that which gives to the act
its essential element of criminality. A person may be so conveyed as much by using force or by
inducing him to give his consent by fraud and deception. Similarly, a consent loses its essential
elements if it is given under fear or duress, in which case it is submission and not consent.

Kidnapping from Lawful Guardianship.

According to Section 361 IPC ―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.

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 Explanation- The words ―lawful guardian‖ in this section include any person lawfully entrusted
with the care or custody of such minor or other person. 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 lawful custody of such child, unless
such act is committed for an immoral or unlawful purpose.

Object and Scope- Section 361 IPC makes kidnapping from lawful guardianship of a minor
under sixteen years of age, if a male, and under eighteen years of age, if a female. This section
also protects a person of unsound mind from being kidnapped from the lawful curator. The
provisions contained in the section 361 IPC correspond to section 55 of (English Statute)
Offences against the Person Act, 1861 which makes abduction of an unmarried girl a statutory
offence. This section is designed to protect minors and persons of unsound mind from
exploitation and to protect the right and privileges of parents and guardians having the lawful
charge or custody of their wards. Thus the consent of the parent or guardian would alone take the
case out of the purview of the section.

Ingredients- The following are essential ingredients of this section.

1. Taking or enticing away a minor or a person of unsound mind.

2. Such minor must be under the age of 16 years, if a male or under the age of 18 years, if a
female.
3. The taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
4. The taking or enticing must also be without the consent of the guardian.

Taking or Enticing explained

The gravity of the offence of kidnapping lies in the taking or enticing of a minor under the
specified age out of the keeping of the lawful guardian, without the consent of such guardian. On
a plain reading of this section 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. Nor it is
necessary that the taking or enticing must be shown to have been by means of force or fraud.
Persuasion by the accused person which creates willingness on the part of the minor to be taken
out of the keeping of lawful guardian would be sufficient to attract the section. The word ‘takes
‘does not necessarily connote taking by force, and it is not confirmed only to use of force, actual
or constructive. It merely means to cause to go, to escort or to get into possession. The mental
attitude of the minor is not relevant in the course of taking. Thus where the accused took the
minor with him whether she was willing or not, the act of taking was complete and it amounted
to taking out of the father‘s custody within the meaning of this section. Enticing is inducing a
minor to go to her own accord to the kidnaper. It involves the idea of inducement by exciting
hope or desire in the other. One does not entice another unless the latter attempted to do a thing

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which the person kidnapped would not otherwise do Enticing means that while the person
kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind
that brought about that willingness must have been induced or brought about in some way by the
accused3

In S Varadarajan v. State of Madras4, a girl who was on the verge of attaining majority
voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the
sub-registrar’s office, where the accused and the girl registered an agreement to marry. There
was no evidence whatsoever that the accused had ‘taken’ her out of the lawful guardianship of
her parent, as there was no active part played by the accused to persuade her to leave the house.
It was held that no offence under this was made out.

In State of Haryana v. Raja Ram5, the prosecutrix was a young girl of 14 years. She became
friendly with a person called Jai Narain, aged 32, who was a frequent visitor. When Jai Narain
was forbidden by the prosecutrix’s father from coming home, he sent messages through one Raja
Ram. She was constantly persuaded to leave the house and come with Jai Narian, who would
keep her in lot of material comfort. One night, the prosecutrix arranged to meet Jai Narain in his
house and went to meet him where she was seduced by Jai Narain. The question before Supreme
Court was that whether Raja Ram could be said to have ‘taken’ the minor girl, since she
willingly accompanied him. The Court held that it was not necessary that the taking or enticing
must be shown to have been by means of force or fraud. Persuasion by the accused person,
which creates willingness on the part of the minor to be taken out of the keeping of the lawful
guardian, would be sufficient to attract the section.

Persuading or soliciting a minor to abandon legal guardianship at any stage by a person is

sufficient to hold him responsible under section 361, IPC.

The word ‘entice’ connotes the idea of inducement or pursuance by offer of pleasure or some
other form of allurement. This may work immediately or it may create continuous and gradual
but imperceptible impression culminating after some time in achieving its ultimate purpose of
successful inducement. Inducing a minor girl by promise of marriage to leave the house of her
guardian amounts to enticement within the meaning of the section.

In T.D. Vadgama V. State of Gujarat6, the accused was in the habit of visiting a prostitute, and
there he met a young married girl below the age of sixteen whom he seduced and then carried her
and kept her concealed from the husband, the girl having been already with the prostitute, the
accused could not be held to taken or enticed her, and be convicted of kidnapping.

3
www.shodhganga.com
4
AIR 1965 SC 942
5
AIR 1973 SC 819
6
AIR 1973 SC 2313

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 Keeping of Lawful Guardian

Section 361 makes the taking or enticing of any minor person or persons of unsound mind ‘out
of the keeping of lawful guardian’, an offence. The meaning of the words ‘keeping of the lawful
guardian ‘ came up for consideration before the Supreme Court in State of Haryana v. Raja Ram.
The court observed that the word ‘keeping’, in the context, connotes the idea of charge,
protection, maintenance and control. It is not necessary that the minor should be under physical
possession of the guardian. It suffices for the purpose of the section if it is under a continuous
control of the guardian. Hence, a minor, who goes on a visit either with or without consent of the
guardian, or goes on street, still is in ‘keeping’ of the guardian, it goes ‘out of the keeping’ when
it is driven away from parental roof or control. The court compared it with the language used in
English statutes, where the expression used was ‘take out of the possession’ and not ‘out of the
keeping’.

The term used in the IPC is ‘lawful guardian’ and not ‘legal guardian’. The expression ‘lawful
guardian’ is a much more wider and general term than the expression legal guardian’. ‘Legal
guardian’ would be parents or guardians appointed by courts. ‘Lawful guardian’ would include
within its meaning not only legal guardians, but also such persons like a teacher, relatives etc,
who are lawfully entrusted with the care and custody of a minor.

Punishment for Kidnapping

Section 363. Whoever kidnaps any person from India or from lawful guardianship, shall be
punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.

Section 363 provides punishment for the offence of kidnapping defined in s.361. A convict may
be sent to prison to undergo simple or rigorous imprisonment for a period up to seven years and
be asked to pay fine. In Chandrakala v. Vipin Menon7, the Supreme Court declined to convict the
father, who was accused of kidnapping his minor daughter who was living with her maternal
grandfather due to strained relationship between her parents, on the ground that the accused was
the natural guardian of the child.

7
(1993) 2 SCC 6

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 Recent Case Laws

Ankit Tyagi v. State (NCT of Delhi) and others8 on 9 July, 2015

In this case an FIR was registered on the complaint lodged by the father of the girl alleging
kidnapping of the girl by the petitioner from his lawful guardianship. At that time she was aged
only 17 years and six months and had married him without the consent of her parents.

 By virtue of this petition, the petitioner prays for quashing of the FIR and the proceedings
emanating from the same on the ground that the petitioner and the girl were friends and were
having an affair. Their family members were against the marriage. Therefore, the petitioner and
the girl left their respective houses, solemnized marriage and started living as husband and wife.

The Court held that since the girl has lawfully married of her own free will, the petitioner cannot
be blamed of kidnapping her. Relying upon the judgment of the Supreme Court in S.
Varadarajan's case, no offence under  Section 363 IPC is made out against the petitioner. There
does not seem to be any conspiracy in the alleged kidnapping of the girl in view of peculiar facts
and circumstances of this case.

8
CRL.M.C. 463/2015

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Govind Sharma @ Govind Kumar ... vs The State Of Bihar9 on 22 March, 2018

In this case an appeal is filed by Govind Kumar who has been convicted under section 363 and
section 366A of the IPC. The appellant was charged for the offence under Section 376 of the
IPC also along with Section 363 and 366A of the IPC but the trial court has acquitted him of the
charge under Section 376 of the Indian Penal Code.

It was alleged by the father of the victim that her daughter, Kiran Kumari aged 14 years was
taken away by force by the appellant when she was returning from her school to some unknown
destination and from there to various other places. After about 20-22 days the girl returned and
told her father the she had been subjected to sexual assault.

Now the trial court convicted the accused under section 363 and 366A but acquitted the accused
of section 376

The Patna High Court said that there was no evidence to prove that there was sexual assault
committed on the girl but it has been thoroughly proved that the minor girl is taken away from
the lawful guardianship of her parents. So the High Court convicted the appellant under section
363 of IPC.

9
Patna High Court CR. APP (SJ) No.77 of 2016 (2)

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Abboo vs State Of U.P.10 on 14 September, 2017

This is an appeal filed against the order passed by the trial court whereby and whereunder
accused appellant Abboo was found guilty for the offences under Section 363 IPC.
The brief facts of the case are that the appellant allured the two girls who were minor to come
along with him. He made the girls board the bus but he himself was not in the bus. They reached
at Mahmoodabad but appellant was not there then they reached at Sitapur and then went to
Bahadurpur, the house of her sister, where her brother came and they returned to their house. The
statement of these two girls recorded before the Magistrate just after the incident reveals that
nothing was committed with these girls which may be interpreted to be within the definition of
offence under Section 376  IPC. There was no motive or taking away from the lawful
guardianship because according to their statement after boarding the bus accused/appellant was
not with them.
So it could be said that there was no keeping out of lawful guardianship of the minor girls by the
appellants. Therefore the court acquitted the appellants for the offence under section 363 IPC.

10
CRIMINAL APPEAL No. - 410 of 1997 Allahabad High Court

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 INCIDENTS OF KIDNAPPING AND ABDUCTION IN INDIA

INCIDENTS
100000
90000
80000
70000
60000 INCIDENTS
50000
40000
30000
20000
10000
0
2012 2013 2014 2015 2016

YEAR INCIDENTS
2012 47592
2013 65461
2014 77237
2015 82999
2016 88008

STATE WISE ANALYSIS OF KIDNAPPING AND ABDUCTION

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4500

4000

3500

3000

2500 Punjab
Haryana
2000
Himachal Pardesh
1500

1000

500

0
2012 2013 2014 2015 2016

YEAR PUNJAB HARYANA HIMACHAL

PRADESH
2012 919 1349 172

2013 1274 2772 352

2014 1550 3082 304

2015 1694 3520 327

2016 1591 3932 290

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 BIBLIOGRAPHY

1. K.D GAUR, TEXTBOOK ON INDIAN PENAL CODE, UNIVERSAL LAW

PUBLISHING CO. PVT. LTD

2. PSA PILLAI, CRIMINAL LAW, LEXIS NEXIS

3. S.N. MISHRA, INDIAN PENAL CODE, CENTRAL LAW PUBLICATIONS

4. RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, LEXIS NEXIS

5. NOSHIRVAN JHABWALA, INDIAN PENAL CODE, JAMNADAS AND COMPANY

PUBLISHERS

Webliography

1. http://indiankanoon.org/search/?formInput=kidnapping%20cases
2. Ncrb.gov.in/Publications/CII/CII2015/FILES/CrimeInIndia2016.pdf
3. http://www.shareyouressays.com/knowledge/section-90-of-indian-penal-
code-1860-explained/118509
4. http://articlesonlaw.wordpress.com/2015/03/27/kidnapping-and-abduction/
5. shodhganga.inflibnet.ac.in/bitstream/10603/33145/4/chapter%204.pdf

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