At common law kidnapping consists in the forcible abduction or stealing away of a man, woman or child from his or her own country and sending him or her into another country.
Kidnapping in common law is to be regarded as an aggravated species of False Imprisonment, so that in addition to the essential elements of false imprisonment, to constitute the common law offence proper, another element was necessary, viz., that of sending away the person on whom offence was committed from his own country into another. Kidnapping is of two kinds – kidnapping from India and kidnapping from lawful guardianship.
Kinds of Kidnapping:
According to Section 359, kidnapping is of two kinds – kidnapping from India, and kidnapping from lawful guardianship.
Kidnapping From India:
Section 36C lies down that whoever conveys any person beyond the limits of India without 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.
Kidnapping From Lawful Guardianship:
Section 361 explains the provisions about kidnapping from lawful guardianship.
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.
The words “lawful guardian” in this Section includes any person lawfully entrusted with the care or custody of such minor or other person.
The 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.
The ingredients of Section 361 “kidnapping from lawful guardianship” are:—
(1) Taking or enticing away a minor or a person of unsound mind;
(2) Such minor must be under sixteen years of age if male, or under eighteen years of age 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; and
(4) Such taking or enticing must be without the consent of such guardian.
Section 361 has two fold objects. First it protects the minor children and unsound mind persons from being seduced for improper purposes. Secondly it protects the rights and privileges of lawful guardians haying the lawful charge or custody to their minor wards.
The consent of the minor or unsound mind person, who is taken or enticed, is wholly immaterial. The word “takes” signifies “want of wish and option of desire of the person taken”. The taking need not be by force, actual or constructive.
The important point of Section 361 is that there must be taking of the child or unsound mind person out of the possession of the lawful guardian. “Taking” means neither force nor misrepresentation. If a girl below eighteen years is taken away from her lawful guardian, even at her own wish, the accused is treated as kidnapper.
The mere fact that the accused and the girl went away together or found in the company of one another is not sufficient to impose the criminal liability on the accused. The prosecution must establish that the accused allured or persuaded or induced the minor girl to abandon her parents and run away with him.
The age is an important factor in Section 361. The person kidnapped must be a minor (below sixteen years in case of a boy or below eighteen years in case of a girl). There is no age restriction in case of an unsound mind person.
E. Where a minor girl herself leaves her father’s house or lawful guardian’s house without any inducement or allurement by the accused, and the accused merely gives the shelter to the girl with humanitarian views, he cannot be held guilty of taking the minor out of the lawful guardianship.
There must be evidence of taking. The accused must have taken some active steps or persuasion to cause the girl to leave her home. Mere passive roll in helping the girl, viz., giving shelter, medical treatment, accompanying her to hospital, etc., do not make him the guilty of kidnapping.
F. The offence of kidnapping is not a continuing or a continuous act. The word “taking”, which constitutes an offence, is completed as soon as the girl is removed from the keeping of the lawful guardian.
G. Abdul Sattar vs. Emperor (AIR 1928 Mad 525)
In this case, the accused wrote several letters to the minor girl alluring her to come away from her father’s house. The Court held that the accused was guilty of the offence of kidnapping from lawful guardianship.
H. It is not necessary that the accused should be present when the minor quits its home. The Court investigates into the influence, allurement, pursuance of the accused.
I. Bhagavan Paanigrahi vs. State (1989 CRLJ 103)
The minor girl aged sixteen years, came from a village for study purpose. Her father used to visit her monthly once or twice and was looking after her necessities.
She stayed in a rented room. She had contacted with accused. Both of them went away from that town to another place with an intention to marry. The Court convicted the accused under Section 361. The consent of the minor girl was not considered.
J. S. Varadarajan vs. The State of Madras (AIR 1965 SC 942)
S. Natarajan was an Assistant Secretary to the Government of Madras in the Department of Industries and Co-operation. Savithri was his third daughter. Savithri became friend with the appellant S. Varadarajan, who was residing in a house next door to that of S. Natarajan. Savithri was a student of the second year B.Sc. in Yathi Raj College. Savithri was born on 13-11-1942.
On 30-9-1960, the love affair between Savithri and Varadarajan came to know to S. Natarajan. On the same day, S. Natarajan took his daughter Savithri to Kodambakkam and left her at the house of a relative K. Natarajan with an intention to separate the lovers.
On the next day, i.e., on 1-10-1960, Savithri left the house of K. Natarajan at 10.00 a.m. and telephoned to S. Varadarajan to meet at a certain place. Varadarajan came there in a car. Both of them went to the Registrar’s office and registered their marriage.
From there both of them went to Sirukulam and stayed twelve days there. On 16-10-1960, the police arrested them at Tanjore. The lower Court convicted S. Varadarajan under Section 361. The High Court confirmed the conviction.
The Supreme Court acquitted the accused from the charges of Sec. 361. The Supreme Court considered the puberty of the girl who was studying B.Sc. and few days’ difference, i.e., 15 days or one month to complete her minority.
Further the Court opined that the accused had not taken active steps but the girl herself activated. The accused had no ill-intention to spoil the carrier of the girl. Both of them were married. It held that the girl had attained the age of puberty and discretion and was on the verge of attaining majority and was a senior college student.
The Supreme Court observed: “There is a distinction between “taking” and “allowing” a minor to accompany a person. Two expressions are not synonymous though cannot be laid down that in no conceivable circumstances can the two be regarded as the same meaning for, the purposes of Sec. 361.
Where the minor leaves her father’s house knowing and having capacity to know the circumstances of what she is doing, voluntarily. It means the accused person cannot be deemed to have taken her away from the lawful guardianship.
Something more has to be shown in a case of this kind and some kind of inducement held out by the accused person or an active participation by him in the information of the intention of the girl to leave the house of the guardian.”
K. Smt. Ram Devi vs. State of U.P. (AIR 1955 SC 574)
Brief Facts: The accused/appellant and one Chameli (aged 15-17 years) were neighbours. The prosecution was that on 30-4-1949, Ram Devi took Chameli for evening walk to certain place, where there were five persons, namely, Prahlad Singh, Dhani Ram, Baburam, Gokaram, and Niranjan.
They kidnapped the girl and kept her in the house of Niranjan. Baburam and Gokaram mishandled the girl. The trial Court acquitted Prahlad Singh and Dhani Ram. It convicted Baburam, Ram Devi, Gokaram and Niranjan.
They appealed to the High Court. The High Court gave the benefit of doubt to Baburam and Gokaram and acquitted them and the conviction of Ram Devi and Niranjan was upheld. Ram Devi appealed to the Supreme Court. The main contention raised by the appellant that the girl’s age was above 18 years and the outside limit of age was 16 years under Section 366 (at that time).
The Supreme Court acquitted the appellant.
Section 375 was substituted by Act 43 of 1983, w.e.f. 25-12-1983. Before this amendment, the sixth description of 375 was: “With or without her consent, when she is under eighteen years of age.” After the amendment, the sixth description of 375 is: “With or without her consent, when she is under sixteen years of age.”
The Supreme Court held:
“When the amendment of Sec. 361 fixing the outside age limit for girls at 18 came into force, the prosecution has to prove, as the law then was, that the girl was under 16 years of age on the date of the alleged offence.
If the Court, on the evidence, hesitates to hold that the girl was below 16 on that date the accused cannot be convicted under Sec. 366, although the Court holds there is affirmative evidence that the girl was below 18 years.”
L. R. vs. Prince (LS 2 CCR 154)
[Brief facts of this case are given in Topic Mens rea. It is a sensational case of Mens rea and kidnapping. Prince kidnapped Annie Phillips and took away her from her lawful guardian and married her. Prince/accused argued that the girl told him that she was major and thus he believed the girl attained majority in good faith and he had no mens rea in his action. The Court didn’t believe his version and convicted him.]
M. R. vs. Robbins (IC & K 456)
The accused went to the house of the minor girl during the night and for her convenience placed a ladder against the window of her room by which she descended and eloped with him. The Court convicted the accused even though the minor girl was a consenting party.
N. Punishment for Kidnapping:
Section 363 imposes punishment for kidnapping. It states that 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. The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.