Kidnapping

Kidnapping (Section 359):

It means, carrying a child by illegal force. Kidnapping is of two kinds.

1) Kidnapping from India

2) Kidnapping from lawful guardianship.

1. Kidnapping from India (Section 360):

It means carrying away a person beyond the territorial limits of India against its consent.

2. Kidnapping from lawful guardianship (Section 361):

The object of these sections is to protect the minor children from being seduced for improper purposes, & also to protect the rights of the guardians. As per Sec- 359, if a person takes away or entices a minor, under 16 if a male, and under 18 if a female, or any person of unsound mind, from the lawful custody of guardianship, without the consent of such guardian, he is guilty of kidnapping.

Essentials:

1. Lawful guardian means any person who is lawfully entrusted with the care and custody of such minor or other person.

Exception:

If a person in good faith believes that he is the father of an illegitimate child, he is not guilty. But he becomes guilty if he has taken the child for an immoral or illegal purpose.

In R

V

 Jagannath

Father F sent his second daughter to his married first daughter's house. The first daughter got the second daughter married to J. It was Held that, there was no offence because there was no taking out of lawful guardianship.

In Varadarajan

 V

State of Madras

The accused was charged of kidnapping a minor girl by name Savithri. The Supreme Court held that when a minor girl leaves her father's protection, knowing, and having full capacity in all aspects of what she was doing, and finally of marrying him, the accused is not guilty. There was no "taking" of the minor, there was no inducement: the girl was capable of knowing what was good for her, the Supreme Court observed.

2. The taking must be of a boy below 16 or a girl below 18, or a person of unsound mind.

In R

V

 Robbins 

the accused went to the house of a minor girl by night, kept a ladder against the window, by which she came down. She eloped with him. It was held that the accused was guilty.

In R

V

 Prince

(English case: girl must be below sixteen).

The accused pleaded that the girl looked to be above 16 and therefore he was not guilty. The court held that this was a bad argument. Her real age must be taken into consideration. The taking must be from the lawful guardian. Moving with the girl is important and it completes the offence. If a girl runs away from her house because of ill treatment and joins service as a coolly with A. It was held that there is no offence.

Abduction: (Section 362)

If a person by force or by deceitful means induces any person to go from one place to another, he is guilty of abduction.

Kidnapping from lawful guardianship and abduction:- 

Kidnapping from lawful guardianship can be committed only against a minor, under 16 years of age if male and under 18 years of age if female, or a person of unsound mind whereas abduction can be committed against any person. In kidnapping from lawful guardianship taking or enticement must be without the consent of the lawful guardian guardianship of the victim, but in abduction the same is not necessary. 

In kidnapping from lawful guardianship the taking or enticement must be out of the keeping of the lawful full guardian of the victim, but in abduction there is no such condition.

In kidnapping from lawful guardianship consent of the victim is immaterial whereas in abduction if the consent of the victim is free and voluntary no offence of abduction is committed. Kidnapping from lawful guardianship is not a continuing offence, but abduction is. Kidnapping from lawful guardianship by itself is an offence without proof of any mental element on the part of the offender and it has been made punishable under section 363, but abduction by itself is not an offence and it has been made punishable under subsequent sections only when the act is accompanied with certain mental element.