Introduction of Kidnapping and Abduction
Author :- Kirti Singh
The Offences related to the Kidnapping and Abduction covered under chapter IV of the Indian Penal Code, which states about the offences against custody and security.
As per the provision of IPC, Section 359 to 374 talks about kidnapping and abduction and the punishment varying on the basis of degree, the gravity of the offence committed by the person.
The purpose of enacted of this act is to protect the personal liberty of the citizen, by the way, giving legal protection to the child or the person, so that their tender age should not be abused and to reserve the rights of parents and guardians over their wards for custody.
Although as per Indian Laws since from the year of 2005, the abduction and kidnapping are prohibited, if any per to do so, such person is liable for punishment, given the Indian penal Code.
Such type of offences is attacking the liberty and freedom of the person. This article is basically telling about provisions in detail regarding the offences related to the kidnapping and abduction. This article is also giving a brief of the differences between abduction and kidnapping.
Actually, the meaning of Kidnapping is stealing of child. This is the offence in which a child is taking from the custody of another person without his/ her consent. As per the current position of India, these become a common practice in backward areas.
The purpose of kidnapping to extracting money from those people who is rich in the society or to get their friends or relatives get free from jail in exchange for kidnapped persons. Such a type of offences happened particularly against women, only for their immoral purpose. The offence of kidnapping may be done from India, from legal guardianship or maybe an abduction.
Once the woman or a girl, once kidnapped, losses her status and is looked down upon in the society with detestation although she may be innocent
Definition of ‘kidnapping’ and ‘abduction’
The kidnap is a word that is derived from” Kid” meaning a child below the age prescribed by the competent authority. Thus, it literally means child stealing, without the consent of the lawful guardian. The offense of kidnapping comprises of stealing the person, carrying away from the lawful Guardian, or concealing any persons. It may be done in the same country from the place of the country to another place.
The crime of kidnapping is basically an aggravated form of unlawful confinement and is consequently, a crime in which all the essentials of that crime are automatically present. Wrongful confinement is itself a crime defined under the Indian Penal Code. Then kidnapping does not contain the crime of wrongful confinement or keeping in the confinement of a kidnapped person. As per the provision related to Kidnapping defined under section 359 of the Indian Penal Code. The kidnapping is of two kinds
· Kidnapping did from India.
· kidnapping of the person from lawful guardianship
defined that carry any person outside the limits of India without his/ her consent of that person, or of some person lawfully authorized to consent. Under Section 360 of Indian Penal Code defines kidnapping from India and under section 363 prescribes punishment of such offense. The victim might be any person male or female, whether major or a minor and regardless of his nationality. This offense has the following constituent which is below described.
The main purpose of this section of IPC is to protect youths and people of unsound mind from being oppressed and protect the rights of custodians who have the legal charge or custody of their wards.
Hence, the absence of consent of the parent or guardian is the main component of this section. Kidnapping is an act where a person put out from the custody of the lawful guardian. Kidnapping and abduction are two such misconducts that have an excessive emotional effect over the victims.
Generally, such type of victims takes years to recover from the emotional wounds which are exacted over him, and at eras, they are not uniform able to correctly heal from them.
Kidnapping and abduction give both emotional and emotional marks to the victim and eventually, they develop so much broken that they have trust subjects, independence problems, etc. not only the losses but also the family members of the victims hurt with them.
It is very significant that it must be unspoken as to why persons use resorts such as kidnapping and abduction and also as to why people develop victims of these crimes.
The victims of kidnapping and abduction face a lot of psychological problems. Persons who continue such difficulties usually face sure issues such as trust subjects for their whole life.
At times they develop afraid of being alone or scared of the dark or not being able to live with liberty, being afraid of a certain type of person, etc., at the time their faith over whole civilization ends because of certain miss-happening with them.
It is essential that wounded go to certain retrieval therapies. The Abduction in generally means the act of unlawfully taking or leading away, carrying off by use force to the person who is adult.
This might be by deception, persuading. Abduction means to take away a person by force or by deception. Abduction s also pronounced as unlawful by the Indian Penal Code. As per the Indian context, there is a difference between terms kidnapping and abduction.
Normally the word kidnapping is used for the minors and word abduction is used for adults.
But if we talk about English law, it is termed as both Kidnapping is used for both the minors and the adults.
Kidnapping and abduction is important offenses against the human body and has been covered specifically, from section 359 to 372 of the Indian Penal Code. An analysis of these sections along with the relevant case study has been covered in this article. The objective of this article
|The important case study so that they are made ware of important legal development in this area|
|The Relationship between the two offences and the purpose behind such provision in the IPC|
|Inform student of the elements that constitute kidnapping and abduction|
Kidnapping as a specific offence.
Section 359 begins from stating under section 359 of Indian Penal Code, 1860, states that kidnapping is of two types kidnapping from India and kidnapping from lawful guardianship, section 360 talking about the kidnapping from India and section 361 talking about the kidnapping from lawful guardianship, Section 363 is the provision which lays down imprisonment of either description for a term which may be extended to 7 year and fine as punishment for the offence of kidnapping.
From India the section makes kidnapping from territorial limits of India, which is a punishable an offence under the Indian penal code, it makes huge of the word conveys to literally means to transport put take away the person from one place to another, so the offence of kidnapping under this provision is complete when a person is either carried, taken or transported to a place which is outside the geographical the territory of India, reaching the destination in a foreign country is not relevant for the accomplishment of this offence, so this is very important the accomplishment of the offence when the person reached to the country.
On a similar line, it is important to note that when the accused is in the process of conveying a person from the territory of India, but this action is interjected before he can cross the Indian territory, he may be liable for an attempt to kidnap under section 359 but will not be guilty of commission of the actual offence.
Absent of consent on the part of the victim is also a necessary element of the offence, for deciding the connotation of the term, India one has to rely on section 18 of the IPC, under which the term would mean the territory of India including Jammu and Kashmir.
So, section 361 talks about the actual offence of kidnapping from the lawful guardianship and it has highlighted various elements of section 361 the offence of kidnapping under this section can be fragmented into the following major components.
Taking or enticing of a minor or a person of unsound mind by a person, the minor or enticed out of the keeping lawful guardian.
The first and foremost element is taking and enticing when we talk about taking the term means to escort or cause to go when the person escort or cause to go with the lawful Guardian, minors are not generally considered to be prudent or to take the decision for their own benefit for their own welfare, so like a minor doesn’t have the capacity generally to enter into it contractual agreement with another individual because he/ her consent may be immature or incapable of giving consent of the simple reason majority of understanding or rationality is absent in the case of a minor, so the consent of the minor may have been present in a given situation but the element of the situation simultaneously accomplished.
Abduction- Section 362 of IPC talks about Abduction, which means that if we look at the definition, abduction is not an offence; though, when it is accompanied by the guilty intention to commit such an offence.
Therefore, if a person is doing any such actions with an intention to abduct someone, then it amounts to an offence and comes under this section.
If it doesn’t have such intention, abduction cannot be punishable under the IPC.
These are the essentials which is required for the purpose of the commission of a crime under this section of IPC.
- The meaning of Force or Deceitful:
If the person is convicted under this section, this requires the actual force must be used by the person. But then again when a victim is exposed with a weapon to make her go along with the accused is also considered as abducted under this section of IPC. If a person uses dishonest Intention in an alternative to abduct a person is also considered as an offence under this section
- To Go from a Place:
If it is a case of Abduction, then the movement of such a person being abducted is necessary. It is a continuing offence and it doesn’t require moving the victim from one place but it also requires that being moved from one place to another.
Difference between Kidnapping and Abduction
The main differences between the two offences are Kidnapping is a kind of substantive offence while the other one is a type of continuing offence. It is a supplementary act which converts offence only when attached with intention. The offence of kidnapping has two types, Firstly, given under section 361which is specifically for the kidnapping of minors or a person who is an unsound sound mind. I we talk about abduction, there is no such requirement and it is generally applied to everybody.
In the case of Kidnapping the enticing or takeaway the person is important, but in the case of Abduction forcefully or by deceitful are relevant essential for the purpose of conviction under this offence. Although intension is relevant in the case of abduction where’s as in the case of kidnapping intension is irrelevant one. The consent has played an important role in the case of abduction but it is immaterial in the case of kidnapping. The offence of kidnapping and abduction happen due to the following purpose:
Kidnapping or Abduction with the intention of Murder: Section 364
In this section, it is compulsory to prove that such person I having intension for the commission of the offence if a person dies before kidnapping or abduction then it will not be considered a case under this section of IPC. But if a person had been abducted and is deceased, then the burden of proof is on the accused to prove that such death has not been caused by him. However, he does not identify who had instigated the death, the abductor will be made liable.
Kidnapping or Abduction purpose of Begging: Section363A
In India, the offence of kidnapping or abduction is happening for the purpose of begging, even though some of the gang of such offence disfigured the minor for the purpose of earning money by the way of begging.
Kidnapping or Abduction for Ransom: Section 364A
Under the provision of Indian Penal Code, the Ransom nowhere is defined, the Supreme Court relied on that it is some amount of the amount which is demanding in order to release the person. The demand after the death of the victim, covered under section 364 of IPC, the main purpose to take the money of ransom for the parents of the Victim.
Kidnapping or Abduction with an intention to confine a person-Section 365
The offence of kidnapping is done for the purpose of secretly confining the person, such act of the person who commits an offence shall be liable for the punishment and fine as prescribed under Indian Penal Code.
Kidnapping, Abduction for Marriage-section 366
The offence of kidnapping or abduction is done for the purpose of marriage by inducement and by the use of compulsion.
If a woman is forced to marry or have an unlawful relationship, then only the accused will be legally liable for the punishment under this section, although the intention of the woman is immaterial.
Procuration of Minor Girl Section 366A, Importation of Women for Prostitution Section 366 B
If a girl under the age of eighteen years go any place by forced or seduced to unlawful intercourse with another person shall be liable for the punishment and imprisonment as per prescribed in the Indian Penal Code, i.e. which may extend to ten years.
Kidnapping or abducting Section 367 In order to subject a person to grievous hurt, slavery, etc.–
If a person kidnaps or abducts in order that such person may be subjected, or maybe so likely of as to be put in threat of being exposed to grievous hurt, or slavery, or for the purpose of unnatural lust of any person, or meaningful it to be probable that such person will be so exposed or disposed of, shall be punishable with imprisonment for a term which may extend to ten years, and such a person also be liable to fine as prescribed under Indian Penal Code.
Kidnapped or abducted Section 368 with Wrongful intension and conceal or keeping in confinement, person
If anyone with intention or knowingly commit an offence of kidnaping or abduction any person, and such person concealing or confines such person shall be liable for punishable in a similar manner.
Critical Analysis of Landmark Judgement
S. Varadarajan v. State of Madras:
In this case, it was held that S. The Vardarajan V State of Madras is a progressive landmark judgement in the area of kidnapping, it is progressive due to many factors but for the most factor reason behind the judgement is to look at the judgement from a very new and motive angle rather so, before we discuss the conclusion that judges reach in this decision that I will acquaint you the fact of the Varadarajan v state of Madras.
The Girl Savitri is a daughter of Mr S. Natarajan, she had secretly developed a relationship with their neighbour named, S. Varadarajan, although she is many times reprimanded by her sister, she has already confessed that she is having intension to marry with S. Vardarajan
When father Natarajan come to know about the same, then immediately took an action that he sends his daughter to Kodambakkam with the intension that Savitri would get over her love by establishing the distance of a few days, this was happening on 30th September, 1960, But on the very next day on 1st of October, Savitri contacted with the Varadarajan over the phone, tells the situation, and asked him to meet Kodambakkam on a certain time as discussed between them.
Varadarajan Reached there by car and meet her. Savitri walked into the car and both planned to go to a friend’s house. From there they both went on to purchase some clothes and jewellery. Afterwards, they got married at the Registrar’s office. After the marriage stayed at a hotel. And also went to some places, finally, we’re finally detained by the police of Tanjore, Because of complaint filed by Father of Savitri.
This case is typically a cinematic story of the sixties which is decided by a three bench of judges including Justice R. Mudholkar, Justice K. Subbarao and Justice M. Hidayatullah.
In this case very interesting questions of law were raised and they were argued upon leading to the Pronouncing of a unique judgment.
The primary issue, in this case, raised that whether the Act of the S Varadarajan amount to the offence of Kidnapping, the court said that for establishing the offence of kidnapping it is mandatory that minor had been taken or enticed out of the possession from the lawful guardian.
In this case, the Enticing of the minor is not in the picture. Further, the court had to find out whether it fulfils the essentials of the kidnapping or not. The court held that as per the fact of the case pointed out there was nothing in the fact suggest that S. Varadarajan had instigated the minor to elope with him.
Somewhat, Savitri’s statement made it obvious that she had the wish and consequently, she has cleared intention to marry S. Varadarajan. S. Varadarajan only co-operated with Savitri for accomplishing her desire. The court further observed in this case that the participation of the Varadarajan’s is passive- it is in the manner only to providing support for accomplishing wish of Savitri.
The court looks the socio-economic background of Savitri also is taken into consideration even before passing an order conviction of Varadarajan.
Savitri is a well-qualified who is basically fully capable of making the decision about her life. She has attained the majority, so she is not in the age of Tender, she can rationally take the reasonable decision about his life. As per the decision of the court, finally acquitted Varadarajan he doesn’t find guilty of the offence of kidnapping or abduction because made out the parameter of the offence.
This is the case of the nineteenth century English case, in this case, lots of debate generated for the relevance of Mensrea in the certain offences, In this case, henry prince charged under section 55 of Person Act, 1861, the offences against a person for taking Annie Phillips a fourteen-year-old girl. This section is a penal provision for the unlawful taking of an unmarried girl, who is below sixteen years of age. She has taken out possession of her lawful guardians including her father and mother. The interesting thing is that the girl is looking much older than sixteen and she stated to the Prince that she was eighteen years old. After believing, that she was eighteen-year-old, the prince was taken away from the custody of her parents
The Jury was also found that Prince had acted under a practical belief and that the girl did look a lot older than 16. Though, Prince was found guilty of the same offence on the ground that his intention. It did not actually matter in an offence which did not want the mens rea element to be proved.
According to the law. The dissenting opinion, in this case, was based on the principle that the defence of a rational mistake of fact should have been made existing to Prince as it is a fundamental principle of Criminal Law that without a guilty mind there will be no crime.
Unfortunately, the defence was not made available to Prince and he was liable for punishment under such offence of section 55 of the Offences against the Person Act, 1861.
The offence of kidnapping and abduction is a specific offence under Indian Penal Code, These provisions are drafted for the purpose of protecting the person of individuals, These are amended by the commission from time to time as per the need of the society so that, the protection of the minor or the women should not be affected. The 42nd Report in fifth law commission has recommended some changes in the offence of Kidnapping and abduction. This Study basically set out to establish the existing knowledge standard on a minor.
The main Intension is to identify any such immediate strategy and practice suggestions and any steps that would add our thoughtful of the issue.
This study is making a recommendation on development of different policies and data improvement further research across the variety of abduction types.
The origin of a child abduction ‘hub’ may offer an actual instrument for coordinating with activities of different organizations, carrying growths, and providing attention on child abduction in India.