Kidnapping and abduction: Sections 359 to

374 under IPC, 1860

Introduction
Though, Indian laws prohibit abduction and kidnapping, since 2005, more than 100,000 kidnapping
and abduction cases have come up in India. People have continued to take advantage of the tender
age of minors to kidnap them and exploit and force them to perform horrendous acts. Such offences
are an attack on the liberty and freedom of citizens and must be prevented.

Section 359 to 374 of Indian Penal Code, 1860 provides for punishments for these offences. In this
article, we will discuss these provisions in detail, understand the essentials of kidnapping and
abduction, discuss the difference between kidnapping and abduction and also discuss the provisions
regarding forced slavery, labour and sale and purchase of minors for illegal purposes.

Kidnapping
Kidnapping means taking away a person against his/her will by force, threat or deceit. Usually, the
purpose of kidnapping is to get a ransom, or for some political or other purposes etc. Kidnapping is
classified into two categories in Section 359 of the Indian Penal Code and defined in Section 360 and
361 of the Indian Penal Code. Let’s understand these sections better.

As per Section 359 of the Indian Penal Code, Kidnapping is of two types:

1. Kidnapping from India,

2. Kidnapping from lawful guardianship.

These two types are explained in Section 360 and 361. Let’s look into them in detail.

Kidnapping from India

Section 360 explains kidnapping from India. According to section 360, if any person takes a person
beyond the limits of India against the consent of that person or against the consent of someone who
is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India
is committed.

Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’
committed the offence of kidnapping ‘A’ from India.

Kidnapping from lawful guardian

Section 361 explains kidnapping from lawful guardianship. According to this section, if a person takes
away or entices a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or
a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then
that person commits the offence of kidnapping from lawful guardianship.

Thus, the essentials of kidnapping from lawful guardianship are:

Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother, ‘Z’. ‘B’
‘convinces him to accompany him to his house against the consent of his mother. According to
Section 361, ‘B’ has committed the offence of Kidnapping from lawful guardianship.

Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the person who is committing the
offence is ‘B’ as he is taking A away from ‘Z’ against Z’s consent.

This section also mentions an exception. It says that it does not result in the crime of kidnapping
from lawful guardianship, if the person in good faith, i.e, honestly with reason, believes that:

1. He is entitled to the lawful custody of the child; or

2. He is the father of an illegitimate child.

Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate son, then his act of
convincing him to come to his house without his mother’s consent would not result in kidnapping
from lawful guardianship.

State of Haryana v. Raja Ram, AIR 1973 SC 819

Facts

‘J’ had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl’s father
forbade ‘J’ from coming to their house and in response, ‘J’ started sending her messages through the
respondent.
 • One day, the respondent went to the girl and asked him to come to his house and later sent
his daughter to bring her. At his house, the respondent told her to come to his house at
midnight so that she can be taken to ‘J’.
• That night when she went to his house, the respondent took her to ‘J’.

Issue

Whether the respondent was guilty of the offence under section 361 of IPC?

Judgement

The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it
was held that:

• Section 361 is to protect minor children from being seduced for improper purposes and to
protect the rights and privileges of guardians having their custody.
• The consent of a child is completely immaterial and only the guardian’s consent is relevant
to decide whether the offence was committed or not.
• ‘Taking’ as mentioned in the Section is not only through fraud or force but also through
persuasion by the accused which creates willingness on the part of minor to be taken away
from his/her lawful guardian.
• In this case, the respondent was held guilty under section 361 as it was the respondent’s
action which persuaded the prosecutrix from going out of her father’s keeping, against her
father’s wishes.

Age of the Minor

Section 361 of the Indian Penal Code clearly states that minor is:

• A male under the age of 16 years,

• A female under the age of 18 years.

However, it must be highlighted here that in Manipur, the age of 18 years of females in section 361
is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians in
Manipur, it would not result in kidnapping from lawful guardianship.

Moreover, the Allahabad High Court in Smt Suman and another. V. State of Uttar Pradesh gave a
peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature enough to
understand the consequences and rationale behind her action, leaves the guardianship of her
parents to live with a boy who has in no way subjected her to any kind of pressure, inducement etc,
i.t cannot result in an offence under section 361 of IPC and is not punishable.

Taking and Enticing

Section 361 mentions whoever ‘takes or entices’ a minor away from his/her guardian against the
guardian’s will, is punishable with the offence of kidnapping from lawful guardianship.

Let’s understand the meaning of taking and enticing by looking at a few case laws.
Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416

Facts

• Kalyani, had been kidnapped by the accused/petitioner Biswant Mallick when she had gone
out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to
Jeypore.
• Her father lodged a complaint at the police station. During the investigation, she was found
and rescued from the house of a relative of the accused.
• The petitioner was held guilty and sentenced to two years rigorous imprisonment and a fine
of Rs. 100.
• On the petition, the counsel for the accused argued that the girl had attained the age of
discretion (age to take decisions for herself and understand the consequences of her act) as
she was 17 years, 8 months and 7 days old and thus kidnapping did not take place.

Issue

Clarity of Section 361 and explanation of taking and enticing as given in the section.

Judgement

Court clarified the difference between take and entice as given in section 361 of the Indian Penal
Code.

• The court said that the word ‘take’ means cause to go or to escort or to get into possession.
This means that in taking, the desire of the person being taken to be taken is missing.

(To understand this better let’s look at an illustration. If ‘A’ is taken away against her own consent, it
is taking)

• Enticing, on the other hand, is the act of the accused which induces the person kidnapped to
go to the kidnapper, by his/her own wish. It is exciting hope or desire in a person to be taken
away. Enticement is completely dependant upon the mental state of the person when the
inducement happens. It is not confined to a single form of allurement and any act which is
enough to allure a minor girl is enough to constitute allurement.
• The court further clarified that mental attitude is immaterial ( minor’s willingness or
unwillingness) is not relevant for taking. However, in enticement, the kidnapper convinces
the minor, through allurement, to do something he/she would otherwise not do.
• It was also held that force or fraud is not necessary to constitute enticement or taking away.

S Varadarajan v. State of Madras, AIR 1965 SC 942

The meaning of taking was further clarified by the court in the case S Varadarjan v. The State of
Madras.

Facts

• Varadarajan, the appellant was living next to Savitri’s (a minor girl) house. They talked every
day and became good friends. One day, Savitri’s sister, Rama caught them talking and asked
her about it. Savitri told her that she wanted to marry him. Rama told her father about this
 who inquired Savitri. She started crying but didn’t reply to her father’s question.
Consequently, he decided to send her to a relative’s house, away from Varadarajan.
• Next morning, Savitri called the appellant and told him to meet her on a certain road. They
met and she sat in his car. They both went to the house of P.T. Sami with a view to take him
as a witness to their marriage. They went to the Registrar’s office where they both got their
marriage registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.
• On the morning of the day she went away, her father, Natraj realised she was missing and
tried to find her around the area where they lived. However, all his attempts were futile and
he filed a complaint at the police station. The police took up the investigation and ultimately
apprehended the appellant at Tanjore.

Issue

Whether the essential of ‘taking’ of Savitri was fulfilled or not?

Judgement

• The court held that where a minor girl leaves the protection of her father to join the
accused, knowing and completely understanding the consequences of her act, it cannot be
said that the accused has taken her away from the keeping of legal guardian.
• In such case, for the accused to be held guilty, it must be established that the accused
induced the minor or actively participated in developing such intention in her mind, either
immediately prior or at some prior stage of her leaving her father’s protection.
• The accused cannot be held guilty simply because after leaving her guardian’s house
willingly she joined the accused and the accused encouraged her to not return to her
guardian’s house by taking her to different places.

Punishment for Kidnapping

Section 363 of the Indian Penal Code lays down the punishment for both kinds of kidnapping
(Kidnapping from India and Kidnapping from lawful guardianship).

The punishment prescribed in this section is :

• Imprisonment of either description which can extend up to seven years, and

• Fine.

Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal
Code:

• Simple Imprisonment: This means that during the imprisonment, the prisoner is idle and is
not required to do any hard labour.
• Rigorous Imprisonment: This means that during the imprisonment, the prisoner must
engage in hard labour.

Before we move forward, it is important to mention an exception laid down in the case
of Chadrakala Menon and another v. Vipin Menon. In this case, the appellant Chandrakala was
married to Vipin Menon. They both were settled in the United States and were well employed. They
had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences
arose between them and they decided to get separated. While Vipin Menon filed an application for
his daughter’s custody, the child continued to live with her maternal grandparents. One day, while
the custody application was still to be decided upon, Vipin Menon took his daughter away with him
to a different state. The grandparents lodged a complaint of kidnapping against him. However, the
court held that Vipin Menon was the natural guardian of the child

Abduction
Section 362 of the Indian Penal Code defines abduction. It says that if a person compels another
person to go from one place, or induces some person to go from one place, then the offence of
abduction is committed.

Thus, Abduction is an offence in which a person is moved from one place, against his/her will by
forceful compulsion or by use of deceitful means. Clearly, the essentials of abduction are:

‘I’llustration: ‘B’ slaps and hurts ‘A’ and tells her that if she would not leave with him, he would kill
her. In this case, ‘B’ commits the offence of abduction as he uses forceful means to take ‘A’ away
from her house.

Here, ‘A’ is the person abducted and ‘B’ is the criminal; threatening ‘A’ to kill her and slapping and
hurting her amounts to use of force, and taking her away from her house established the essentials
of taking a person away from a particular place.

Let’s understand all these essentials in depth.

Ingredients
By Force

Section 362 says that abduction can happen in two ways. One of these is force. In abduction, a
person is forced to go from one place to another, against his/her will. The use of force, as mentioned
in this section, must be actual, and not just a threat of force to constitute abduction.

In this reference, we can look at the case State of West Bengal v. Mir Mohammad Omar.

Facts

• The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir
Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do
his business without any hindrance or obstructions. But Mahesh did not agree to their
demands which led to a fight.
• A few nights later, when Mahesh returned to his house, his sister told him that a few
assailants had come before looking for him, and were threatening to hurt him. Scared,
Mahesh left to take asylum at his friend’s house for the night.
 • Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar is
waiting outside for him. Mahesh went out and Omar asked him to accompany him, but
Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh
escaped and went to a neighbour’s house where he took asylum.
• At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but
was beaten by a lathi and taken away. His neighbour went and lodged a police complaint
that very night.

Judgement

The court held that there is enough evidence to show that Mahesh was abducted. It was said that
abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh
was taken away from two places, first from his friends’ place, which he escaped and second from the
neighbour’s place. In both instances, force was used. Hence, the accused were held liable.

Deceitful Means

According to Section 362, the other way abduction can take place is by inducing someone to go from
someplace by misleading him/her to do something he/she would not normally do. The scope of
inducement here is very wide.

Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to
his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses
deceitful means to commit the offence of abduction.

Let’s look at case law to understand how abductions happen through deceitful means.

To go from any place

For abduction to be completed, it is essential that the person is compelled to go from one place to
some other place, either forcefully or by using deceitful means. It cannot be called abduction if the
person is not taken to someplace.

Now let’s discuss an important judgement given in the case of Vishwanath v. State of Uttar Pradesh
AIR 1960 SC 67. It was held that mere abduction is no offence at all. The guilty and wrongful
intention must be present for the offence to be punishable.

For this very reason, IPC provides for different punishments for abduction with different intentions.
Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years,
abduction with the intention of murder is punishable with life imprisonment etc. Now let’s discuss
these specific provisions in detail.

Aggravated forms of Kidnapping or

Abduction
Kidnapping or Maiming for Begging
Section 363A of the Indian Penal Code talks about the offence of kidnapping or maiming a minor for
begging. It states that:

• If a person kidnaps a minor or obtains custody of a minor, even though he is not his/her
lawful guardian, so as to employ the minor in begging, he/she would be liable for this
offence. The punishment prescribed in Section 363A of the Indian Penal Code for this is
imprisonment up to 10 years and fine.
• Maim means to wound or injure a part of the body so that it is permanently damaged. As
per this section, If a person maims a minor so that the minor can be employed in begging,
he/she is liable for imprisonment for life and fine.
• The section also states that if a person, not being the minor’s lawful guardian, employs a
minor in begging, it will be assumed by the court that such person kidnapped the minor. The
person would have the burden of proof to prove that he is innocent.

Section 363 A, itself, defines what begging constitutes as per this provision. It means:

• Asking or receiving alms (money was given to poor people) in a public place for singing,
dancing, fortune-telling, performing tricks, selling goods, etc.
• Entering someone’s private place to ask or receive alms.
• Exposing any wound, injury, deformity or disease of oneself, some other person or some
animal, for obtaining or extorting alms.
• Using a minor as an exhibit to receive or solicit alms.

Illustration: ‘A’ took away ‘B’, a 12-year-old boy, from his father, without his consent, so as to make
him beg on the streets of Delhi. In this case, ‘A’ completed the kidnapping from lawful gu’a’rdianship
as soon as he took ‘B’ away from his father. And because it was for the purpose of making him beg
on the streets of Delhi, ‘A’ is guilty of the offence under section 363 A of IPC.

Abducting or Kidnapping to Murder

As per Section 364 of Indian Penal Code, if a person is kidnapped or abducted by a person with the
intention or knowledge that the person is going to be murdered or is going to be put in danger of
being murder, such person is punishable with imprisonment for life or rigorous imprisonment for a
term up to 10 years and a fine.

Illustration: ‘A’ takes away ‘B’ from his house to a forest, against B’s consent with the knowledge
that ‘B’ would be sacrificed to a deity. ‘A’ is guilty of abduction for murder.

To understand this section better, let’s look at the case of Shri Moni Neog and others v. the State of
Assam.

Facts

• Sanjay Ghose was the General Secretary of an NGO, working for the welfare of people at
Maijuli. As their work started to spread, the members of a banned militant group, United
Liberated Front of Assam (ULFA), started to feel unhappy and scared of people losing faith in
them, because of their growing dedication for Sanjay Ghose’s NGO. They suspected Sanjay
Ghose to be a RAW Agent and developed hostility towards him.
• One afternoon, he was stopped by two of the accused and taken to a house despite his
protest. He was taken to a house where some more militants joined him. He was then taken
 on a boat to another house, along with more militants, all of whom were armed. At night,
some people near that house heard gunshots.
• When he didn’t return home for a couple of days, his wife filed a police report. Upon
investigation, it was found that he is dead. It was accused that these militants had murdered
him.

Judgement

• The court held that the abductors of Sanjay Ghose had abducted him with the intention to
murder him, or at least had the knowledge that he may be murdered or had put him in
danger of being murdered,
• It further said whether he was murdered or not is immaterial. What is important is that the
abductors did not at any stage gave an indication that they would spare his life.
• As a result, the court convicted the accused and awarded them life imprisonment and a fine
of Rs. 2000 each.

Kidnapping for Ransom

Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to
that person who he has kidnapped or abducted or detained after kidnapping or abducting in order to
compel either the government or some foreign state or any other person to do or abstain from
doing an act or pay a certain sum of money. The punishment is death or imprisonment for life, and
fine, as mentioned in Section 364A IPC. The essentials of the offence under Section 364A are:

Netra Pal v. State (National Capital Territory of Delhi), 2001

The first case we will discuss is Netra Pal v. State (National Capital Territory of Delhi), in which the
court discusses one essential of the offence.

Facts

• The appellant Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he had
taken the boy along with other boys on a joy ride in a Rickshaw. While he dropped the other
boys, he did not drop off Tanu. His mother had thought that Netra Pal would come back with
her son in a while. When he didn’t come back, she told his father. He tried to find him
around the area where they live, but failed to locate them and filed a police report.
• The police went to the appellant’s village and found him there along with the child. He was
apprehended and a letter asking for Rs. 50,000 in ransom was found in his possession.

Issue

• What do the words “To pay ransom” stand for – is it enough to show that kidnapping or
abduction was done with an intention to extract ransom or is it necessary that such demand
must be communicated?
• Whether the letter recovered from the appellant would constitute as demand for ransom?

Judgement

The court held that mere recovery of the letter assumed to have been written by the appellant
demanding Rs. 50000 for the safety and return of the child is not enough to cover “ to pay the
ransom” by itself. Demand by a kidnapper is an essential ingredient of the offence because, for the
purpose of getting paid ransom, demand must be communicated.

Malleshi v. State of Karnataka (2004)

The next case which we must discuss in this reference is Malleshi v. the State of Karnataka.

Facts

• Vijaybhaskar was studying in college and living at his uncle’s place. He used to go to
Chitradurga, where his college was, through a bus, along with another friend. One day when
he was waiting to board the bus to go back to his house, he was called by a man who told
him he knew his father. He further inquired about the college’s fees saying he wanted to
enrol his son here. He then led Vijaybhasker to a jeep informing him that his son is there and
made him sit in the jeep.
• Then two other men joined him and treated him well till they crossed Chitradurga. Once
they did, they enquired about his father’s phone number and told him that they want a
ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver of the jeep
told him to run off. He listened to his advice and found out he was in Byrapur village. He
informed the villagers who caught hold of the abductors and handed them over to the
police.

Issue

Whether the alleged demand for ransom was established or not?

Judgement

The court held that Vijaybhasker has been abducted through deceitful means. They further referred
to the case of Netra Pal v. State and said that the difference of fact that the abducted person, in that
case, was a child and in the present case is an adult who can look after himself must be mentioned.
It was held that in this case, the demand for ransom had been conveyed to the victim and the
offence was completed. The court further said that it cannot be a straight jacket rule that the
demand for abduction must always be made to the person who is required to ultimately pay it.

Vikram Singh v. Union of India, (2015)

The next case, we will be looking at is Vikram Singh v. Union of India, in which the punishment
prescribed in Section 354A IPC was evaluated.

Facts and Issue: The appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in ransom.
They had then killed this boy. In this case, the appellants filed a writ petition in the Supreme Court to
declare Section 364A inserted in the Indian Penal Code as ultra vires (beyond the legal power) of the
Constitution to the extent that the same prescribes death sentence for anyone found guilty. He also
said that section 364 A was added only to deal with terrorist-related ransom since kidnapping/
abduction has already been dealt with in the previous section. He further prayed for quashing death
sentence given to him under this section.

Judgement
 • The court held that section 364A is very wide. There is nothing which suggests that this
section is limited to offences against a foreign state or international governmental
organisation, and covers all the “any other person” as well.
• Court also emphasised upon various Indian and foreign judgements to highlight the
importance of proportionality of punishment. It held that the job of giving punishment is the
job of the legislature, and the court can only intervene when it feels that the punishment is
outrageously disproportionate. In section 364A however, when death is concerned the
courts do reserve the right to give death penalty or if not required, a lesser punishment of
life imprisonment. Hence, it is not ultra vires with the constitution.

Kidnapping or abduction with intent to secret and wrongful

confinement
Section 365 of IPC provides for punishing a person who kidnaps or abducts someone with the
intention of wrongfully and secretly confining them with imprisonment up to 7 years and fine.

Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such guardian, with
the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with the intent of secret
confinement, and thus, he is punishable under section 365 of IPC.

Kidnapping or Abduction a woman to compel her for

marriage, etc
Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the
intention to force her into a marriage or with the knowledge that she would be forced into marriage.
It also provides punishment for a person who kidnaps or abducts a person to force her into illicit
intercourse or has the knowledge that because of such kidnap or abduction, she would be forced
into illicit intercourse.

The punishment prescribed in this section is imprisonment for up to 10 years and fine.

Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to. ‘A’ asked ‘B’ to
abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him and took ‘A’ from her house to
‘A’. Here ‘B’ is guilty of the offence under section 366 as he abducted a woman, ‘C’ with the
knowledge that would be compelled into marriage.

Minor’s consent to marry her Kidnapper: Is it valid?

To look at if minor’s consent to marry her kidnapper or engage in sexual intercourse with him is
enough or not, let’s look at the case of Thakorlal D. Vadgama v. State of Gujarat.

Thakorlal D. Vadgama v. State of Gujarat, 1973

Facts

• Mohini’s parents got to know that she had been having sexual intercourse with the
appellant and reprimanded her. They also sent a letter to him telling him to stay away from
Mohini. She, however, met him again when she had gone to Ahmedabad on a school trip
 and for two months after that, they kept sending each other letters in which Mohini had
complained about her parents ill-treating her and expressed her desire to leave her house.
• Next month, the appellant asked her to meet him at his house and she met him there. He
made her write three letters to her father, the appellant and the police superintendent.
These letters contained complaints of ill-treatment by her parents and also said that she had
taken Rs. 250 from the appellant and was leaving to Bombay..
• He then made her sit in a cars’ dicky and took her away to someplace. Then he had sexual
intercourse with her against her wishes. Meanwhile, her father filed a case. Next morning,
while investigating police came to his house to search it for Mohini. The appellant hid
Mohini in his garage and later told her to run out in the street, where the police found him.
On medical examination, no evidence of forced intercourse was found.

Issue

Whether or not consent from Mohini absolves the appellant from his crime?

Judgement

• The court held that in the present case, the appellant got close to the minor girl in the
manner of making promises and giving her gifts, like new clothes, etc. He took advantage of
this closeness to entice her out of her parent’s guardianship and thus kidnapped her.
• The court further, clarified the legal position with respect to an offence under section 366 of
IPC and said that law seeks to protect the minor children from being seduced into illicit
activities and also the rights of the guardians towards their children. It clarified that
kidnapping can be done by enticing or inducing minor out of the keeping of their guardians.
Hence, it was held that Mohini’s acceptance to go with him and have intercourse with him is
not enough to absolve him from the offence.

Procuration of Minor Girl

Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl
under the age of 18, to go from someplace or to do some act, such that she will be forced or
seduced to engage in illicit intercourse with some person. Such inducement must be done
intentionally or with the knowledge that she will be forced to engage in such acts.

The punishment prescribed for the same is imprisonment for up to ten years and fine.

Kidnapping or Abducting to subject a person to Grievous

Hurt
Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such
person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person,
must be punished with either rigorous or simple imprisonment up to 10 years and fine.

Grievous hurt has been defined in section 320 of IPC. It includes:

• Emasculation (Removal of male reproductive organs),

• Permanently damaging eyesight in any eye,
• Permanently damaging hearing in any ear,
 • Causing permanent loss of some joint,
• Permanent disfigurement of face or the head
• Fracture and dislocation of teeth or bone(s)
• Any hurt which endangers the life of a person and causing the sufferer to suffer severe body
pain within twenty days of the causation of hurt.

Wrongfully Concealing or Keeping in Confinement a

kidnapped or abducted person
Section 368 of the Indian Penal Code provides that if a person knows that a person has been
kidnapped or abducted, and wrongfully confides such kidnapped person, would be punished as if he
had kidnapped or abducted the person with the intention to keep or confide in him/her.

This section can be better understood by looking at the following case:

Smt. Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201

Facts

• The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just born a
few hours ago. She took him away by saying that the staff nurse wanted to do the cord
dressing of the child.
• When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told the
sister-in-charge. She searched the premises for the accused and the child. When she failed
to find them the doctor and superintendent of the hospital was informed and they further
told the police.
• On investigation, police found the child at the house of Ram Das, who was the tenant of the
appellant. At the time of the seizure of child, appellant was lying next to the child and the
accused kidnapper was sitting in the same room.The appellant was charged with a
punishment of rigorous imprisonment for 5 years under Section 368 of IPC and the accused
was charged under Section 363 (kidnapping for murder).

Issue

Is the appellant guilty under section 368 of IPC?

Judgement

• The court dismissed the appeal petition. It explained that to constitute an offence under
Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in question
must be kidnapped; (2) The accused must know that the person has been kidnapped (3) The
accused having such knowledge wrongfully conceals or confines the person.
• In the present case, the first essential was fulfilled when the accused took the 15 hours old
child away from his mother, the lawful guardian. The second essential was an inference
drawn from the facts of the case and the third essential was evidenced as the appellant
made it appear that the child was hers.
Kidnapping or Abducting Child under ten years with the
intent to steal from its person
According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to
steal any movable property from him/her, will be punished with imprisonment up to 7 years and
also fine.

Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal that phone.
Here, A is guilty under section 369 of IPC.

Difference between Kidnapping and

Abduction
Now that we have understood what kidnapping and abduction are let’s understand the difference
between them.

Basis Kidnapping Abduction

Provision of Section 359 of IPC states the two The definition of abduction is
law types of kidnapping. Section 360 given in Section 362 of IPC.
defines kidnapping from India,
Section 361 defines kidnapping
from lawful guardianship.

Age of the As per section 360 and 361, the
victim female kidnapped should be under
18 years of age and male
kidnapped should be under 16
years of age.
There is no provision which puts
a bar on the age of the person
abducted, since being a minor is
not essential to constitute this
offence.

Means In kidnapping, the person is taken In abduction. force, deceit or

away or enticed. The means of compulsion is used to take a
doing these is irrelevant to person from a place.
constitute the crime.

Removal from Here lawful guardian refers to a In abduction, there is no concept

lawful person who is legally authorised to of taking a person away from
guardianship take care of a minor or a person of his/her lawful guardian.
unsound mind. For kidnapping, it
is essential that the victim is taken
away from their lawful guardian

Consent of the Consent of the person kidnapped In case the person abducted gives
victim is immaterial, however, the his/her consent, it is considered
that there is no offence.
 consent of the guardian can be
material.

The intention In kidnapping the intention of the In abduction, intention is

of the accused person kidnapping the minor or essential to determine the guilt of
person of unsound mind is the accused.
immaterial.

Nature and Since kidnapping is a substantive Since abduction is an auxiliary

Punishment offence, it’s general punishment is
prescribed in section 363 of IPC as
imprisonment for a term up to
seven years and a fine.
offence, it does not have a
general punishment prescribed in
the IPC. Rather, the punishment
of specific types of abduction is
given in different sections of IPC.
(As discussed above)

Continuity of Kidnapping is not a continuing Abduction is a continuing offence

the offence offence. because it does not end when a
person is moved from a particular
place, rather continues with every
movement from one place to the
other.

Completion of The offence is completed as soon It is a continuing offence and

the offence as a person is taken away from the involves forcibly or deceitfully
country or from his/her lawful taking a person from one place to
guardianship. another
Show more

Trafficking and Slavery

Section 370 of the Indian Penal Code was recently amended after the Delhi rape case in 2013. Now,
it states the definition and punishments of trafficking.

As per this section, if anyone recruits, transports, harbours, transfers or receives a person for the
purpose of exploitation commits the offence of trafficking. This is done by :

• Using fraud, deception or abuse of power, or

• Using threats, or
• Using force or coercion, or
• Abduction, or
• Inducement of the person extorted himself or someone who has authority over him.

Exploitation, as mentioned in this section has a very wide ambit, and refers to sexual exploitation,
slavery or practices similar to it, servitude or forced removal of organs.

It must also be mentioned that the consent of the victim is completely immaterial for the offence of
trafficking.
The punishment for this offence has been given in depth in this Section. These are as follow:

Offences Punishments

Trafficking • Rigorous imprisonment for a term of at

least 7 years and not more than ten years;
• Fine

Trafficking of more than one person • Rigorous imprisonment for at least 10

years which may extend to life;
• Fine

Trafficking of a minor • Rigorous imprisonment for at least 10

years which may extend to life;
• Fine

Trafficking of more than one minor • Rigorous imprisonment for at least 14

years which may extend to life;
• Fine

Trafficking of minor on more than • Imprisonment for the rest of the

one occasion offender’s natural life;
• Fine

Trafficking where a police officer or a • Imprisonment for the rest of the police
public servant is involved in officer’s or public servants’ natural life;
trafficking • Fine

Show more

Sale or Purchase of Minors for Immoral

Purposes
Section 372 of the Indian Penal Code provides that if a person sells or allows hiring of any person
under the age of 18 years, with the intention or knowledge that such a person would be used for
prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous
imprisonment for a period of up to 10 years and would also be punished with fine.

Illicit purposes, as mentioned in the section, means sexual intercourse between people who are not
married or united by any union recognised in a personal law or custom.
Illustration: ‘A’ is a brothel owner. ‘B’ sells ‘C’ to A for Rs. 1,00,000 so that she (C) can be used as a
prostitute. Here, ‘B’ has committed an offence under Section 372 of IPC.

Similarly, Section 373 of Indian Penal Code provides the punishment for a person who buys a minor
for immoral purposes. It states that if a person buys or hires or in some other way obtains a person
under the age of 18 years, with the intention of using or knowledge that such person would be used
for purposes like prostitution or illicit intercourse, then he/she will be punished with either simple or
rigorous imprisonment for a period of up to 10 years and would also be punished with fine.

Continuing with the above illustration: In that case, ‘A’, the brothel owner would be liable for the
offence under Section 363 of IPC as he purchased ‘C’ for Rs. 1,00,000 with the intention of engaging
her in prostitution.

Forced Labour
Section 374 of Indian Penal Code states the offence of unlawful compulsory labour. As per this
section, if a person unlawfully forces some person to provide labour against his will, then he is
punished with either simple or rigorous imprisonment for a period of up to one year, or with fine, or
with both imprisonment and fine.

Conclusion
Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to
369 go a long way in securing the liberty of people. They give protection to children against
kidnapping and abduction. Moreover, they reinforce the rights of guardians to have control over the
children who are easily moved and convinced by the words of conspiring adults. The number of
abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent
these horrendous crimes and stop the culture of kidnapping and abduction from spreading,
especially when it is done for marriages, forced sexual intercourses and forced begar etc. These
children require safe release, medical, psychological and legal assistance as such acts take away the
good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among
nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go
around the laws, and indulge in these acts. What is required to prevent these offences is hand in
hand working of non-governmental organisations and government bodies, and more sensitisation.