KIDNAPPING AND

ABDUCTION
As per Section 359 of the Indian Penal Code, Kidnapping is of two
types:
• Kidnapping from India,
• Kidnapping from lawful guardianship.
Section 360 : Kidnapping from India
Whoever conveys any person beyond the limits of India without the
consent of that person, or of some person legally authorised to
consent on behalf of that person, is said to kidnap that person from
India.
Sec 361: kidnapping from lawful guardianship.
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.
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 the lawful
custody of such child, unless such act is committed for an immoral or
unlawful purpose.
Section 363 : Punishment for kidnapping - 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.
COMPONENTS OF SEC 361
1. There must be taking or enticing a person by accused.
2. That person must be minor or person of unsound mind
(a) Below the age of 16yrs in case of Male
(b) Below the age of 18yrs in case of Female.
3. Out of the keeping of lawful guardianship
4. Without his consent.
R v. Prince, (1857) -
Accused had bonafide belief that girl is major. But she was minor. The accused was
held to be liable for kidnapping.
• It is an offence of strict liability. Intention not required to be proved.
• Why? – object is to protect the interest of child as well as of lawful guardian. If we
allow intention to be proved then accused will take advantage that I took the child
with good motive.
TAKING OR ENTICING

(1) S. Vardarajan v. State of Madras (1965)

(2) T.D. Vadgama v. State of Gujarat (1973)
S. VARDARAJAN V. STATE OF MADRAS
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.
Whether the essential of ‘taking’ of Savitri was fulfilled or not?
The court laid down the following propositions of law:
• There is a distinction between taking and allowing a minor to
accompany a person.
• The question to be determined in this case i.e. where the minor
alleged to have been taken by the accused person left his father’s
protection.
• Knowing and having capacity to know the full import as of what she
was voluntarily joins the accused person would amount to taking or
not.
• Something more has to be shown in case of this kind, there must be
some proof of the accused having done something which led to the
girl going out of the keeping of her guardian
• In the present case, the SC held that there is hardly any evidence
against the accused which will prove that he had played some active
role in order to persuade the minor from the lawful guardianship of
her parents. It will not be legitimate to draw inference of taking or
enticing. Therefore after she had actually left her guardian’s house
or a house where her guardian had kept her joined the accused.
• No doubt the part played by the accused could be regarded as
facilitating the fulfillment of intention of the girl but it falls short of
inducement as to attract u/s 361 of IPC.