HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

Topic: - Kidnapping

Submitted To: - Mrs. Ruchi Sapahia Ma’am

(Assistant Professor of Law)

Submitted From: - Yashasvi Sharma

(B.B.A. LLB, 3rd semester)

Enrolment No.: - 1120202148

1
Acknowledgement

I would like to express my special thanks of gratitude to my professor Ruchi Sapahia

Ma’am who gave me the golden opportunity to do this wonderful project on the topic
Kidnapping , which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.

Secondly, I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

I am over helmed in all humbleness and gratefulness to acknowledge my depth to

all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete.

Thanking you,

Yashasvi Sharma

Enrollment No. 1120202148

B.B.A LLB Sem III

2
Table of Contents

• Introduction

• Kidnapping from India

• Kidnapping from Lawful Guardianship

• Lawful Guardian

• Punishment for Kidnapping

• Abduction

• The distinction between Kidnapping and Abduction

• Aggravated forms of Kidnapping and Abduction

3
Kidnapping

The word “kidnapping” has been derived from the word ‘kid’
meaning child and ‘napping’ to steal. Thus, the word literally means
“child stealing”. Kidnapping under the code isn't confined to child
stealing. it's been given wider connotation as meaning carrying away
of an individual's being against his/her consent, or the consent of some person legally authorised
to accord consent on behalf of such person. Kidnapping, consistent with Walker,[1] is that the
common name for the common law offence of carrying away, or secreting, of a person against his
will, or against the will of his lawful guardians. it's going to be constituted by false imprisonment,
which is total restraint of an individual and his confinement without lawful authority or
justification.

Kidnapping as a Specific Offence: Section 359 states that under the Indian Penal Code, 1860 (IPC)
kidnapping is of two types: Kidnapping from India and Kidnapping from Lawful Guardianship.
Section 360 1 defines Kidnapping from India and Section 361 2 defines Kidnapping from Lawful
Guardianship. Section 363 lays down imprisonment of either description for a term which may
extend to seven years and fine as punishment for the offence of Kidnapping.

Section 359 within the Indian penal code – Kidnapping.

Kidnapping is of two kinds:

• kidnapping from India,

• and kidnapping from lawful guardianship.

Section 360 within the Indian legal code – Kidnapping from India.

Whoever conveys a person beyond the bounds of India without the consent of that person, or of
some person legally authorized to consent on behalf of that person, is claimed to kidnap that person
from India. Section 361 within the Indian penal code – Kidnapping from lawful guardianship.

Whoever takes or entices any minor under sixteen years aged if a male, or under eighteen years
aged if a female, or any individual 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 alleged to kidnap
such minor or person from lawful guardianship.

4
Explanation. — The words “lawful guardian” during this section includes a person lawfully
entrusted with the care or custody of such minor or other person.

Exception. — This section doesn't reach the act of a person who in good faith believes himself to
be the daddy of an illegitimate, 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.

To constitute an offence under this section the subsequent conditions must

exist –

1. There must be taking or enticing of a minor, or an individual of unsound mind;

2. Such minor must be under 16 years aged, if a male, or under 18 years of age, if a female;

3. Taking or enticing must be out of the keeping of the lawful guardian of such minor or person of
unsound mind; and

4. Taking or enticing must be without the consent of such guardian. The courts have formulated
certain guiding principles in section 361, besides its essential ingredients, which are as follows:

• within the case of minor girls this section is attracted regardless of the question whether
she is married or unmarried.
• The consent of the minor is immaterial. (State of Haryana vs Raja Ram, AIR 1973 SC 819)
• The motive or intention of the kidnapper is additionally immaterial. (State vs Sulekh
Chand, AIR Punj. 83)
• If the kidnapped girl turn seems to be under 18 years aged, the kidnapper is going to be
held liable, albeit he had a bonafide belief and reasonable ground for believing that she was
over eighteen years. (Queen vs Prince, (1875) LR 2)
• The defence that the girl was easy virtue wouldn't be sufficient to form accused not liable.

‘Enticing’ is inducing a minor to travel of her own accord to the kidnapper. There is distinction
between taking and enticing. The attitude of kid is immaterial within the case of taking when the
kid is removed. But the word ‘entice’ involves the thought of inducement or allurement.
[Biswanath Mallick vs State of Orissa, 1995 Cr. LJ 1416 (Ori)

5
Section 359 of IPC[I] divides kidnapping into two parts –

• Kidnapping from India provided under section 360 of IPC

• Kidnapping from lawful guardianship, provided under section 361 of IPC

KIDNAPPING FROM INDIA

Section 360 of IPC [ii] provides the meaning of Kidnapping from India and Section 363 of IPC
lays down the punishment of the offence. The essentials of Section 360 of IPC are –

A person must be got rid of to an area which is beyond the bounds of India.

Such doing away with of an individual must be without his/her consent[iii], or without the consent
of the legally authorized person on his behalf.

The word “convey” under Section 360 of IPC means carrying an individual to a different
destination. The words “beyond the bounds of India” means the instant an individual is taken
outside the geographical territory of India without his consent.

Example: ‘A’ kidnaps ‘B’ and tries to flee from the country but, on his way before reaching the
opposite country, Police caught him. Here, the offence of kidnapping though not complete,
amounts to the offence of plan to kidnap from India.

KIDNAPPING FROM LAWFUL GUARDIANSHIP

6
Section 361 of IPC [iv] makes kidnapping from the lawful guardian an offence. It states that a
minor person, below the age of sixteen just in case of a male, and below the age of eighteen just
in case of a female, can't be removed without the consent of his/her parents or any lawful guardian
who is to offer consent on his/her behalf. This section also extends its protection to the people of
unsound mind[v].

The essential elements that are required for an act to be called as an offence under this section are:
A person must take or entice another person The one that is taken must be either a minor, or an
individual of unsound mind In case of a male, the person must be below the age of 16 years, and
just in case of female, the person must be below the age of 18 years The taking of the person must
happen out of the lawful guardian who has the authority over that person There must not be any
consent of the lawful guardian within the process of taking or enticing the person

In the case of Thakori Lal D. Vadgama v. The State of Gujarat[vii], the accused was charged
with the offence of enticing and taking a woman below the age of 15 years (minor) from the
custody of the lawful guardian without his/her consent. The counsel on behalf of the accused
contended that the girl came out of her guardian’s house as per her own will.

The court rejected the contention and convicted the accused stating that the word ‘entice’ is related
to an inducement and allurement by which one person gives hope of raises the desires of another.

If one person induces, promises or raises the will of another (minor) by fancy words to go away
her parent’s house then such an individual also will be guilty of kidnapping and it might be clear
difficult for him to plead innocence on the bottom that the minor had come to him voluntarily.

However, if the minor involves the accused leaving her lawful guardian completely uninfluenced,
voluntarily by virtue of some promise or offers from the accused then in such a case, the accused
can't be held liable under Section 361 of IPC.

7
LAWFUL GUARDIAN

The term “lawful guardian” under Section 361 of

IPC features a broader meaning. It states that the
guardian must be lawful and not necessarily a
trustee. within the case of Empress v. Pemantle
the court made a distinction between trustee and
lawful guardian. A trustee is that the one who is
appointed by law as a guardian. Such appointment
is in reference to the law of the land and therefore the person to whom he's appointed as a guardian.

Lawful guardian is that the one who gets the custody of the minor by virtue of law. Thus, a trustee
is additionally a lawful guardian. for instance, when a minor goes to high school, the principal and
other teachers act as his lawful guardian as they need gained his custody by law, on the opposite
hand, his parents are his trustee. Even during the office hours, the employer acts because the lawful
guardian of the workers.

If the minor herself goes far away from his/her guardian or abandons the guardian with the
intention of not returning some time past, she can't be said to be under the custody of the lawful
guardian. If the facts of the case make it clear that the minor girl left her father’s house voluntarily,
being fully conscious of the character and consequences of her act and joins the accused then the
offence of kidnapping doesn't happen and it amounts to a voluntary act. [x]

In the case of Taj Mohammad v. State of Madhya Pradesh[xi], a minor girl named Ivy was during
a relationship with the accused and both of them were quite intimate one another. The accused
visited her father’s house during Diwali and shortly after this, the minor left her house. Later on,
it had been found that both of them were sitting next to every other within the railroad station.
Here the accused was held responsible for kidnapping because the father was a lawful guardian of
the minor girl, and every one other ingredient necessary for Kidnapping were present during this
case.

There is an exception to kidnapping under lawful guardianship. Section 361 doesn't apply to those
persons who in straightness believes himself to be the daddy of a bastard or in straightness believes
8
that he possesses the lawful custody of such a toddler, until and unless such an act is committed
with a guilty mind for fulfilling an improper or unlawful intent.

S. Varadarajan v. State of Madras: An Analysis

The case had a stimulating factual matrix that revolved around a minor girl named Savitri who was
on the edge of achieving majority and therefore the man she eloped with, S. Varadarajan. Savitri
was the daughter of S.Natarajan and had secretly developed friendship with their neighbour, S.
Varadarajan. When reprimanded by her sister, she confessed that she intended to marry the boy
nearby (Varadarajan). A furious Natarajan packed his daughter off to Kodambakkam with the
assumption that Savitri would recover from her infatuation after a couple of days of distance. This
incident happened on 30th September, 1960 and therefore the very next day, i.e., on 1st of October,
1960, Savitri contacted Varadarajan over the phone and asked him to meet her on a particular road
at a particular time. Varadarajan co-operated with Savitri and came to the venue by car. Savitri
stepped into the car and both of them visited a friend’s place from where they went on to get some
sarees and jewellery. Thereafter they got married at the Registrar’s office. The couple stayed at a
hotel after their marriage, went around a couple of places and were finally apprehended by the
police at Tanjore, following a complaint filed by Savitri’s father. The case which had a typical
cinematic setting of the sixties was decided by a three-judge bench comprising of Justice R.
Mudholkar, Justice K. Subbarao and Justice M. Hidayatullah. Very fine and interesting questions
of law were raised and argued upon resulting in the delivery of a singular judgment, which was
very before its times. The primary issue which was raised during this case was whether the acts of
the appellant, Varadarajan could cumulatively amount to the offence of Kidnapping. so as to
determine the offence of kidnapping, the court said, it's necessary to determine whether the minor
had been taken or enticed out of the keeping of the lawful guardian. It said that while enticement
was not within the picture, the court had to seek out out whether the appellants act could constitute
“taking”. so as to constitute “taking” one among the essential requirements was the character of
participation of the accused in leading the minor ‘out of the keeping of the lawful guardian’. The
court looked into the facts of the case and rightfully acknowledged that there was nothing in the
facts to suggest that Varadarajan had caused the minor to elope with him. Rather, Savitri’s
deposition made it evident that she had the will and thus, clearly intended to marry Varadarajan.
Varadarajan only co-operated together with her in accomplishing her desire. In other words, he
facilitated the fulfilment of Savitri’s intention.

9
The court further observed that Varadarajan’s participation within the whole act was passive- it
was within the nature of providing a support-system in giving shape to the will of Savitri. The
inference was drawn from the very fact that it had been Savitri who called Varadarajan up, asked
him to meet her at a particular place and time and expressed her willingness to marry the appellant.
That being the case, it can't be said that Varadarajan actively induced Savitri to elope with him. At
now, the court also remarked that for the establishment of the factor of ‘taking under the Indian
legal code, it's necessary that the accused participates in an ‘active’ manner to steer out of the
custody of his/her lawful guardianship.

The Court also acknowledged that the socio-economic background of Savitri must be taken into
consideration before convicting Varadarajan. She was an informed girl who was fully capable of
understanding the character and consequences of her actions. within the words of the court, Savitri
wasn't a ‘child of tender years. Although a minor, she was on the verge of attaining her majority
and was capable of taking rational decisions. The court final acquitted Varadarajan on the bottom
that a case under section 361 wasn't made out against him because the required parameters for the
offence weren't fulfilled. The case of Varadarajan has discussed in great detail the connotation of
the term “taking”.

Taking also varies from “enticing” during a very significant way. While the element of force may
not be present in either taking or enticing, the element of ‘temptation’ is present within the latter
although it's absent within the former.11 When X “entices” Y, he goads Y to commit an act or
tempts him to try to to so. The trick of tracing a component of temptation is to seek out out whether
or not the minor would have abandoned lawful guardianship, had the accused not tempted him to
do so. Enticing is claimed to be there when the accused does something which generates the desire
within the minor to abandon his/her lawful guardianship.

R v. Prince- Taking, Consent and an inexpensive Mistake of Fact

The case of R. v. Prince12 may be a nineteenth century English case which has generated tons of
debate on the relevance of malice aforethought in certain offences. during this case, Henry Prince
was charged under section 55 of the Offences against the Person Act, 1861 for taking Annie
Phillips a fourteen-year-old girl. The section penalised unlawful taking of an unmarried girl below
sixteen years aged out of the possession of her lawful guardians including her father and mother.
the foremost interesting facet of this case is that the girl looked much older than sixteen and stated
to Prince that she was eighteen years old. Under the mistaken belief that Annie was eighteen years

10
old, Prince had ‘taken’ her out of her father’s custody. The jury also found that Prince had acted
under an inexpensive belief which the girl did look tons older than 16. However, Prince was
convicted of the offence on the bottom that his intention did not really matter in an offence which
didn't require the malice aforethought element to be proved as per the statute. In other words, the
offence made provision for strict liability. The dissenting opinion during this case was supported
the premise that the defence of an inexpensive mistake of fact should are made available to Prince
because it may be a fundamental premise of Criminal Law that there can't be a criminal offense
without a guilty mind. Unfortunately, the defence was not made available to Prince and he was
convicted of the offence under section 55 of the Offences against the Person Act, 1861.

Understanding ‘Out of the Keeping of Lawful Guardian’ and Minor’s Consent: State of
Haryana v. Raja Ram13 and Thakorlal D Vadgama v. State of Gujarat

Another important factor under section 361 is that the incontrovertible fact that the person ‘taken’
or ‘enticed ‘should be out of the keeping of lawful guardian. the importance of “keeping” was
discussed in Raja Ram’s case where the court held that the term connotes the thought of ‘charge,
maintenance, protection and control’. 14 Not only that the court also held that although
independence of the movement of the minor is respected, his/her consent is wholly immaterial in
diffusing the element of enticement under section 361. The term ‘lawful guardian also features a
very wide ambit and is different from the thought of a ‘legal guardian.’15 ‘Lawful guardian’
denotes a person, who is lawfully entrusted with the care and protection of the minor.

Likewise, within the case of Thakorlal D Vadgama v. State of Gujarat17, the scope of the terms
“entices” and “taken” were discussed. The Supreme Court upheld the conviction of the accused
since he had induced a minor immature girl of impressionable age to possess illicit sexual
intercourse with him by alluring her and presenting her with gifts.

PUNISHMENT FOR KIDNAPPING

Section 363 of IPC [xii] provides the punishment for kidnapping from India or from the lawful
guardianship with imprisonment up to seven years and fine.

11
Conclusion

Kidnapping is an important specific offence and they have been drafted with the objective of

protecting the person of individuals. The Fifth Law Commission in its 42nd Report has suggested

changes to the definitions of the offences. Kidnapping is of two types under the Indian Penal

Code- Kidnapping from India and from Lawful Guardianship, definition of Kidnapping from India

has been provided under section 360 whereas section 361 defines Kidnapping from Lawful

Guardianship, taking and Enticing, Absence of Guardian’s consent and taking the minor out of the

keeping of lawful guardian are major components of the offence of Kidnapping The case of S.

Varadarajan v. State of Madras discusses in detail the connotation of the term “taking” In the case

of R. v. Prince, the relevance of intention and the value of minor’s consent was discussed.

12
Bibliography

1. Main.sci.gov.in

2. Lexforti.com

3. Lawtimesjournal.in

4. Indiankanoon.org

5. Blogipleaders.in

6. Thakorlal D. Vadgama v. State of Gujarat AIR 1973 SC 2313

7. L.R.2 C.C.R.154

8. AIR 1965 SC 942

13