KIDNAPPING AND ABDUCTION

Indian Penal Code

Submitted by:

Rahul Tambi

SM0119036

4th semester, 2nd year

Faculty in charge:

Nikita Barooah

National Law University and Judicial Academy, Assam

26th May, 2021

 CONTENTS

TABLE OF CASES .................................................................................................................... i

ABSTRACT............................................................................................................................... iii

INTRODUCTION .................................................................................................................... iv

AIMS.......................................................................................................................................... v

OBJECTIVES ............................................................................................................................ v

SCOPE AND LIMITATIONS ................................................................................................... v

LITERATURE REVIEW .......................................................................................................... v

RESEARCH QUESTIONS .....................................................................................................vii

RESEARCH METHODOLOGY.............................................................................................vii

KIDNAPPING ....................................................................................................................... viii

Kidnapping from India:...................................................................................................... viii

Kidnapping from lawful Guardianship: ................................................................................ ix

Punishment for Kidnapping: ................................................................................................. xi

ABDUCTION ........................................................................................................................ xiii

DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING.......................................... xv

AGGRAVATED FORMS OF KIDNAPPING ....................................................................... xvi

Sec. 363(A): Kidnapping or Maiming a minor for begging ............................................... xvi

Sec. 364: Kidnapping in order to murder...........................................................................xvii

Sec. 364(A): Kidnapping for ransom: ................................................................................xvii

Sec. 365: Kidnapping or abducting with intent secretly and wrongfully to confine person:
.......................................................................................................................................... xviii

Sec. 366: Kidnapping, abducting or inducing a woman to compel her marriage, etc.: ... xviii

Sec. 366(A): Procuration of minor girl: .............................................................................. xix

Sec. 366(B): Importation of girl from foreign country: ...................................................... xix

Sec. 367: Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc :
.............................................................................................................................................. xx
 Sec. 368: Wrongfully concealing or keeping in confinement, kidnapped or abducted person:
.............................................................................................................................................. xx

Sec. 369: Kidnapping or abducting child less than ten years with intent to steal from its
person: ................................................................................................................................. xxi

CONCLUSION ......................................................................................................................xxii

BIBLIOGRAPHY ................................................................................................................ xxiii

 TABLE OF CASES
S. No Name of cases
1. S Varadarajan v. State of Madras
2. State of Haryana V. Raja Ram
3. Chandrakala v. Vipin Menon
4. Gurcharan Singh v. State of Harayana
5. Rabinarayan Das vs State
6. Vishwanath v. State of Uttar Pradesh
7. Upendra Nath v. Emperor
8. State of West Bengal v. Mir Mohmad Omar
9. Netra Pal v. State (National Capital Territory of Delhi)
10. State of Uttar Pradesh v. laiq Singh
11. Chhotelal v. State of Harayana
12. Rajinder v. State of Maharashtra
13. Keasl Mal v. Emperor
14. Manik Molla v. Emperor
15. Dharshan Singh v. State of Punjab

TABLE OF STATUE

S. No Name Year
1. Indian Penal Code 1860

TABLE OFABBREVIATIONS

S. No Abbreviations Word
1. & And
2. AIR All India Report
3. Cr LJ Criminal Law Journal
4. SC Supreme Court
5. SCC Supreme Court Cases

i
6. IPC Indian Penal Code
7. Sec. Sec.
8. v. Versus
9. S. No Serial number
10. Del Delhi

ii
 ABSTRACT
Kidnapping has evolved into a critical social and legal issue over the years. Kidnapping is
defined in criminal law as the unlawful diverting (asportation) and repression of a person
without their consent. In this sense, it is a combined wrongdoing. It can also be defined as false
imprisonment by means of abduction, both of which are separate crimes that, when committed
simultaneously on the same person, converge as the single wrongdoing of kidnapping. The
asportation/abduction component is frequently, but not always, directed by methods of power
or dread. Kidnapping may be carried out in order to extract a ransom in exchange for the
release of the victim, or for other illegitimate purposes. Kidnapping can be accompanied by
significant damage, elevating the wrongdoing to irritated kidnapping.

Abduction is the unlawful removal or retention, detention, or concealment of a child or infant.

Abduction is defined as the taking of a person indefinitely through influence, fraud, open
power, or violence.

Keywords: Kidnapping, Abduction, lawful Guardianship, minor, Indian Penal code,

punishment

iii
 INTRODUCTION

Kidnapping is described as the taking of an individual against his or her will by coercion,
intimidation, or deception. Kidnapping is usually done to obtain a ransom, or for political or
some other reason. Whereas, abduction says that, whoever by force compels, or by any
deceitful means induces, any person to go from any place, is said to abduct that person. Despite
the fact that Indian laws prohibit abduction and kidnapping, more than 100,000 kidnapping and
abduction cases have been reported in India since 2015. People have continued to exploit
minors' vulnerability by kidnapping, exploiting, and forcing them to commit heinous acts. Such
offenses are an affront to citizens’ liberty and freedom, and they must be avoided.

The punishments for these offences are outlined in Sec.s 359-369 of the Indian Penal Code,
1860. In this paper, we will go over these provisions in depth, understand the fundamentals of
kidnapping and abduction, discuss the distinction between kidnapping and abduction, and also
briefly explain the aggravated forms of kidnapping with relevant case laws.

iv
 AIMS
The research project aims to study the provisions of Kidnapping and Abduction as stated under

the IPC and also tries to analyse some differences between them. The project also aims to study

aggravated forms of Kidnapping.

OBJECTIVES
The objectives that the project tends to achieve are:

• To understand the concept of kidnapping.

• To understand the concept of abduction.
• To understand aggravated forms of kidnapping.

SCOPE AND LIMITATIONS

The scope of this research is limited to the study of kidnapping and abduction as mentioned

under the IPC.

LITERATURE REVIEW
1. Mariya Pariwala, Kidnapping and Abduction: Sec.s 359 to 374 under IPC, 1860, Blog
Pleaders (May 14, 2021, 12:49) https://blog.ipleaders.in/

This site provides detailed information on the offence of kidnapping and abduction as listed in
the IPC. This site also provides various relevant case laws on this topic through which further
decisions are been held while this site also talks about the punishments as listed in the IPC for
punishment and abduction.

2. Diganth Raj Seghal, Taking or enticing from lawful guardianship of the minor, Blog
Pleaders (May 14, 2021, 14:29) https://blog.ipleaders.in/

The site provides a detailed information on the process and cases that followed the different
aggravated forms of kidnapping and abduction. While, this site has proved very fruitful for the
user in conducting the relevant research for this research paper.

3. Justice Y V Chandrachud and V R Manohar, Ratanlal And Dhirajlal'S The Code Of

Criminal Procedure, 17th ed. 2017.

v
Ratanlal and Dhirajlal’s THE CODE OF CRIMINAL PROCEDURE is another legal classic.
It is the most original, authentic, dependable and brilliant work having a profound impact on
its vast readership that covers judges, lawyers, police officers, administrators, law teachers and
academicians, students, research scholars and in fact everyone who is in any way concerned
with the administration of Criminal Law and Justice in this country. This book provides deep
insights into the offence of kidnapping and abduction and has helped the researcher in
conducting the relevant research for this paper.

vi
 RESEARCH QUESTIONS
Q.1 What is kidnapping according to the IPC?

Q.2 What is Abduction according to the IPC?

Q.3 State the differences between kidnapping and abduction.

Q.4 What are the different forms of aggravated kidnapping in the IPC?

RESEARCH METHODOLOGY
• Approach of Research

In this project doctrinal research was involved. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles, websites, web journals, were used while making this project.

• Sources of Data collection:

Secondary sources of data collection were used which involves in collection of data from
books, articles, websites etc. No surveys of case studies were concluded.

vii
 KIDNAPPING
The term kidnapping is derived from the words “kid” which means “child” and “napping”
which means “stealing.” Thus, the term literally means “child stealing”. Kidnapping under the
code is not limited only to child stealing. It has taken on a broader connotation, referring to the
taking of a human being without his or her consent or without the consent of someone legally
authorized to give consent on his or her behalf.

According to Walker, “kidnapping is the common name for the common law offence of taking
away or concealing any person against his will or the will of his lawful guardians. It may be
constituted by false imprisonment, which is absolute restriction and confinement of an
individual without lawful authority or excuse”1.

Kidnapping is described as the taking of an individual against his or her will by coercion,
intimidation, or deception. Kidnapping is usually done to obtain a ransom, or for political or
some other reason. “Sec. 359 of the Indian Penal Code divides kidnapping into two types,
which are further specified in Sec.s 360 and 361 of the Indian Penal Code.”2

According to Sec. 359 of IPC; Kidnapping is of two types

1) Kidnapping from India. (Sec. 360)

2) Kidnapping from lawful guardianship. (Sec. 361)

Kidnapping from India:

According to sec. 360 of IPC “whoever conveys any person beyond the limits of India without
the 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”3. This sec. makes kidnapping within India's
borders a punishable offense under the Indian Penal Code. It uses the term “convey” which
literally means to transport, carry, or take from one location to another. As a result, the offence
of kidnapping under this provision is complete when a person is carried, taken, or transported
to a location outside India's geographical territory. Reaching the destination in a foreign
country is not relevant for the completion of this crime.

Similarly, it is important to note that if the accused is in the process of conveying a person from
Indian territory but his actions are hindered before he can cross the Indian Territory, he may be

1
Walker, OXFORD COMPANION TO LAW, 20th Edition 1980, pg. 701.
2
Indian Penal Code, 1860 (India).
3
Id.

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liable for attempt to kidnapping under Sec. 359 but will not be guilty of commission of the
actual offence. The offence of Kidnapping under this sec. has 3 essential ingredients:

1. Conveyance of a person: to convey means to carry an individual from a place to another.

Until the destination is reached, the conveyance or carrying is a continuous process. In the case
of any offence under this sec., the destination must be some foreign territory.

2. Beyond the limits of India: The words included in this sec. indicate that for an offence to be
committed under sec. 360 it must be to any foreign country.

3. Without the consent of that person or of some person legally authorized to consent on behalf
of that person: Consent given under misapprehension of facts, is not true consent.

Illustration: Illustration: ‘T’ is a woman living in Jaipur. ‘R’ takes ‘T’ to Nepal without her
consent. ‘R’ committed the offence of kidnapping ‘T’ from India and would be held liable
under sec. 360 of IPC.

Kidnapping from lawful Guardianship:

“According to sec. 361 of the IPC, 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”4.

The offence under this sec. may be committed against a minor or a person of unsound mind.
As a result, kidnapping an adult does not constitute an offense under this sec.. The aim of this
sec. is to protect children of a vulnerable age from being abducted or seduced for immoral
purposes, as well as to protect the rights of parents and guardians who have lawful charge or
custody of minors or insane people5.

There are 4 main essential ingredients of sec. 361:

1) Taking or enticing:

To bring an act within the purview of this sec., all that is required is to ‘take or entice’ a minor
or a person of unsound mind from the custody of the lawful guardian. Taking does not imply
force or misappropriation. The term literally means “to go, to escort”. The minor child's consent

4
Id.
5
Diganth Raj Seghal, “Taking or enticing from lawful guardianship of the minor”, https://blog.ipleaders.in/
(May 14, 2021, 14:29).

ix
is irrelevant because consent from a minor or from a person of unsound mind is not considered
as a valid consent by law. But there must be some active part played by the accused for ‘taking’
the minor merely permitting or allowing a minor to accompany one would not constitute an
offense under sec. 361 of the IPC.

In S Varadarajan v. State of Madras6, a girl approaching majority voluntarily left her father’s
house, to meet the accused at a specific location, and went to the sub – registrar's office, where
the accused and the girl registered an agreement to marry. There was no evidence that the
accused had ‘taken’ her out of the lawful guardianship of her parents, since there was no active
role played by the accused to persuade her to leave the house. It was determined that no offense
under this sec. had been committed.

2) Out of the keeping of lawful Guardian:

The term 'keeping' simply means that a minor is under the guardian's care and protection. It is
not necessary for a minor to be physically in the possession of the guardian. It would suffice if
a minor is under continuous control that is terminated for the first time by the act of the
offender. The term used in the statute is ‘lawful guardian' rather than ‘legal guardian.’ The term
“lawful guardian” is a much broader and more general term than “legal guardian,” which refers
to parents or guardians appointed by courts. The term “lawful guardian” encompasses not only
legal guardians, but also individuals such as teachers, relatives, and others who are lawfully
entrusted with the care and custody of minors.

The significance of keeping was held in the case of State of Haryana v. Raja Ram. The
prosecutrix in State of Haryana V. Raja Ram7was a 14-year-old girl. She became friendly with
a frequent visitor named Jai Naraian(32). When the prosecutrix’s father forbade Jai Naraian
from coming home, he sent messages through Raja Ram. She was constantly persuaded by
Raja Ram to leave the house and come with Jai Naraian, who would provide her with a lot of
material comfort. One night, the prosecutor went to meet Jai Narain in his house where she was
seduced by Jai Narain.

So, in this case the court Jai Naraian was convicted under sec. 376 for rape of minor and Raja
Ram was convicted under sec. 361 of IPC as it was the respondent’s action which persuaded
the prosecutrix from going out of her father’s keeping, without his consent. “The court
observed that the word ‘keeping’, in the context, connotes the idea of charge, protection,

6
S Varadarajan v. State of Madras, AIR 1965 SC 942.
7
State of Haryana V. Raja Ram, AIR1973 SC819.

x
maintenance and control. Not only that, but the court held that, while the minor's independence
of movement is respected, his/her consent is wholly immaterial in diffusing the element of
enticement under Sec. 361”8.

3) Minor or any person of unsound mind:

The kidnapped person must be a minor, i.e. a boy under the age of 16 or a girl under the age of
18; or he or she must be a person of unsound mind. Unsoundness of mind should be permanent,
not temporary insanity caused by alcoholic excess or other factors. For example, where a girl
aged 22 years was unconscious due to excess of alcohol at the time she was taken away, it
would be held that the accused was not guilty of kidnapping because the girl could not be
declared of unsound mind according to sec. 361 of IPC.

4) Without the consent of the Guardian:

According to Sec. 90 of the IPC, the act of taking or inciting a minor to keep him/her out of the
custody of a lawful guardian must be done with free consent. The minor's consent is irrelevant.
Consent can be implied and does not have to be expressed. Furthermore, consent obtained after
the commission of an offense cannot be used as a good defense. As a result, it is absolutely
meaningless.

Punishment for Kidnapping:

“Sec. 363 of IPC lays down the punishment for both kinds of kidnapping mentioned under sec.
360 (kidnapping from India) and sec. 361”9 (kidnapping from lawful guardianship). The
punishment prescribed in this sec. 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 the prisoner is idle and not required to do any
hard labor during his or her confinement.

8
Muthu Kumar, “A study on kidnapping and abduction in India”, https://acadpubl.eu/hub/2018-120-5/1/88.pdf
(May 12,2021,14:36).
9
Indian Penal Code,1860 (India).

xi
 • Rigorous Imprisonment: This means that the prisoner must engage in hard labor during
his or her confinement.

“In Chandrakala v. Vipin Menon, the Supreme Court refused to convict a father accused of
kidnapping his minor daughter, who was living with her maternal grandfather due to a strained
relationship between her parents, on the grounds that the accused was the child's natural
guardian. In Bhajan Lal v. State of U.P, when a girl testified in a kidnapping case that she had
gone with the accused voluntarily, his conviction under Sec. 363 was overturned”10.

10
Chandrakala v. Vipin Menon, 8 (1993) 2 SCC 6.

xii
 ABDUCTION
“Sec. 362 of IPC states that, whoever by force compels, or by any deceitful means induces, any
person to go from any place, is said to abduct that person. Abduction is not an offense perse,
but it becomes punishable when done with the intent to commit another offence. 19 Abduction
is an offence if it is done with the intent to commit murder, wrongfully confine a person, coerce
a woman into marriage, subject a person to grievous harm, slavery, etc., or steal from a minor
under 10 years of age”11.

The essential ingredients of Abduction are:

1) Forcible compulsion or inducement by deceitful means:

The term ‘force’ as defined in sec. 362 of IPC refers to the use of actual force rather than the
mere display or threat of force. Under this sec., abduction would take place if an accused
threatened the prosecutrix with a pistol in order to force her to accompany him12. The term
deceitful refers to anything that is intended to mislead another. It includes inducement and has
a broad scope. One could argue that the accused's intent is a gravamen of the charge.

In this regard, “the case of Rabinarayan Das is pertinent. Here the prosecutrix was blind and
desired to attend her school. The petitioner, on the other hand, took her to the secretariat
premises. There was no evidence of inducement, and there was nothing to prove that the woman
went there out of her volition or free will”13.

2) Taking of a person from one place to another:

An essential element of abduction is compelling or inducing a person to go from any place. It

does not have to be from the child's legal guardian, as in the case of kidnapping. Abduction,
unlike kidnapping, is a continuing offense. The offence of kidnapping is complete when a
person is removed from India or from the lawful custody of a guardian. However, in the case
of abduction, a person is abducted not only when he is first taken from a location, but also when
he is subsequently removed from one location to another.

Pandey is taken from his home and sent to city X, from where he is taken to city Y. Abduction
is committed twice in this case: once when he is moved from her home and again when she is
moved from city X to city Y. The offence of abduction is committed as many times as the

11
Indian Penal Code,1860 (India).
12
Gurcharan Singh v. State of Harayana AIR 1972 SC 2661.
13
Rabinarayan Das vs State, 1992 CriLJ 269.

xiii
person is moved from one place to another. “In Vishwanath v. State of Uttar Pradesh it was
declared that mere abduction is not an offence. For the offence to be punishable, both the guilty
and wrongful intention must be present. As a result, IPC provides for different punishments for
abductions with varying intentions”14.

14
Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67.

xiv
 DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING
1) ‘Kidnapping' is committed only in the case of a minor under the age of sixteen if male, and
under the age of eighteen if a male or a person of unsound mind whereas ‘abduction' is
committed in case of a person of any age.

2) In kidnapping, the kidnapped person is removed from legal guardianship. A child who does
not have a guardian cannot be kidnapped whereas the term ‘abduction’ refers solely to the
person who has been kidnapped.

3) The minor is simply taken away in the case of kidnapping. The means employed may be
innocuous whereas force, compulsion, or deception are used in the offence of ‘Abduction.’

4) Consent of the person taken or enticed is irrelevant in kidnapping whereas in abduction,

consent of the person moved, if freely and voluntarily given, condones abduction.

5) In kidnapping, the offender’s intent is completely irrelevant whereas in abduction, it is a

very important aspect.

6) Under the Code, kidnapping from guardianship is a substantive offence, however, abduction
is an auxiliary offence, not punishable by itself, but made criminal only when done with one
or more of the intents specified in sec. 364(2).

xv
 AGGRAVATED FORMS OF KIDNAPPING
Sec.s 363A to 369 deal with aggravated kidnapping and abduction. Kidnapping is an offense
in itself, but abduction is not so the aggravated form not only offence, but also a liability clause
in the statute.

Sec. 363(A): Kidnapping or Maiming a minor for begging15

1) Whoever kidnaps a minor or obtains custody of a minor without being the lawful guardian
of the minor in order for such minor to be employed or used for the purposes of begging is
punishable by imprisonment of either kind for a term that may extend to ten years, as well as a
fine.

2) Whoever maims a minor in order for that minor to be employed or used for the purposes of
begging is punishable by life imprisonment as well as a fine.

3) If any person, not being the lawful guardian of a minor employs or uses such minor for the
purpose of begging, it is presumed, unless proven otherwise, that he kidnapped or otherwise
obtained custody of that minor in order for the minor to be employed or used for the purpose
of begging.

4) In this sec.

(a) Begging means:

(i) Soliciting or receiving alms in a public place, whether by singing, dancing, fortune-telling,
performing tricks, selling articles, or otherwise.

(ii) Entering any private premises with the intent of soliciting or receiving alms.

(iii) Exposing or displaying, with the intent of obtaining or extorting alms, any sore, wound,
injury, deforming, or disease, whether of himself or of any other person or of an animal.

(iv) Using a minor as an exhibit in order to solicit or receive alms.

(b) Minor means:

(i) A person under 16 years of age, in case of a male.

(ii) A person under 18 years of age, in case of a female.

15
Indian Penal Code,1860 (India).

xvi
This sec. was first introduced in 1959. It was inserted to convert the growing trend of organized
begging, in which unscrupulous individuals abducted and maimed children for the purpose of
begging. This sec.’s clause (4) defines the term “begging.” Clause (3) of this sec. introduces
the presumption that if a person other than the lawful guardian uses or employs a minor for
begging, it will be presumed that he kidnapped the child unless the contrary is proven.

Sec. 364: Kidnapping in order to murder16

According to sec. 364 whoever kidnaps or abducts any person in order for such person to be
murdered or to be so disposed of as to be in danger of being murdered shall be punished with
imprisonment for a term of up to ten years, as well as a fine.

Illustrations:

1) Ram kidnaps Rahul from India with the intent or knowledge that Rahul will be sacrificed to
an idol. A committed the offence defined in this sec.

2) A entices Z away from his home in order for Z to be murdered. A committed the offense
described in this sec.

This sec. will apply if a person has been kidnapped with the intent to murder17. It is not
necessary to murder the individual. It is enough that there was abduction with the intent to
murder18.

Sec. 364(A): Kidnapping for ransom:

“Whoever kidnaps or abducts any person or keeps a person in detention following kidnapping
or abduction and threatens to cause death or harm to such person, or by his conduct gives rise
to a rational apprehension that such person may be put to death or harm, or causes harm or
death to such person in order to compel the government, any foreign state, inter-governmental
organization, or an international organization to release such person to do or abstain from doing
any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall
also be liable to fine”19.

Sec. 364(A) was incorporated to provide severe punishment for abducting or kidnapping a
person and continuously detaining him, threatening him with death or harm, or creating a
reasonable apprehension that he will be put to death or harm in order to compel the government,

16
Id.
17
Upendra Nath v. Emperor AIR 1940 Cal 561.
18
State of west Bengal v. Mir Mohmad Omar AIR 2000 SC 2998.
19
Indian Penal Code,1860 (India).

xvii
foreign state, international inter – governmental organization, or any other person to refrain
from doing any act.

In “Netra Pal v. State (National Capital Territory of Delhi) the Delhi High Court examined
some key words and the scope of Sec. 364A of the IPC in the context of a peculiar set of facts.
The raiding party recovered the kidnapped child as well as a letter demanding ransom from the
accused. He had neither posted the letter nor personally contracted the child's family for three
days after the kidnapping until he was apprehended. The high court ruled that the accused's
mere intention to demand is translated into action by communicating his demand to the person
in question”20. The question of paying ransom does not arise unless the price of retrieval or
rescue is set, as the words ‘to pay' warrant setting the demand.

Sec. 365: Kidnapping or abducting with intent secretly and wrongfully to confine
person:
“Whoever kidnaps or abducts any person to be secretly and wrongfully confined is punishable
by imprisonment of either description for a term of up to seven years, as well as a fine”21.

Sec. 365 is applicable when someone kidnaps or abducts another with the intent to secretly and
wrongfully confine him. The intent of the kidnapper or abductor must be assessed based on the
facts and circumstances of the case at hand22.

Sec. 366: Kidnapping, abducting or inducing a woman to compel her marriage, etc.:
“Whoever kidnaps or abducts any woman with the intent, or knowledge that she will be
compelled, to marry any person against her will, or in order that she will be forced or seduced
to illicit intercourse or with the knowledge it to be likely that she will be compelled, to marry
any person against her will ,shall be punished with imprisonment of either description for a
term that may extend to ten years, and shall also be liable to fine”23.

Whoever, through criminal intimidation as defined in this code, abuse of authority, or any other
method of compulsion, induces any woman to leave any place with the intent or knowledge
that she will be forced or seduced to illicit intercourse with another person shall also be
punished as aforesaid.

20
Netra Pal v. State (National Capital Territory of Delhi), (2001) CrLJ 1669 (Del).
21
Indian Penal Code,1860 (India).
22
State of Uttar Pradesh v. laiq Singh (1986) CrLJ 584.
23
Indian Penal Code,1860 (India).

xviii
Mere abduction does not warrant sec. 366. “Sec. 366 is not warranted for simple kidnapping.
It only goes into effect when the kidnapper or abductor abducts her for the stated purpose”24.
Even subsequent intent or act of intercourse with a kidnapped or abducted girl cannot bring the
case within the scope of sec. 366 if such intent was not present at the time the accused enticed
the girl.

“Under this sec., ‘abduction' becomes punishable if the victim was illegally ‘forced' or
‘deceived' from one location to another”25. This sec. does not prohibit coerced seduction or
seduction when she is completely under the control of the seducer and her consent would be
nothing more than a mere submission to the will of the seducer. This sec.'s main ingredients
are abduction for forcible sexual intercourse or forcible marriage, or seduction for illicit
intercourse. Compulsion is at the heart of crime.

In this sec., seduction refers to not only inducing sexual intercourse for the first time, but also
induces subsequent illicit sexual intercourse. However, the essential elements of seduction are
ruled out in the case of a woman who regularly engages in the profession of a prostitute, and
thus the offence under sec. 366 cannot be committed in connection with such a woman.

Sec. 366(A): Procuration of minor girl:

“Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years
to go from any place or to do any act with the intent that such girl may be, or knowing that she
is likely to be, forced or seduced to illicit intercourse with another person is punishable by
imprisonment for up to ten years, as well as a fine”26.

Sec. 366(B): Importation of girl from foreign country:

“Whoever imports into [India] from any country outside India any girl under the age of twenty-
one years with the intent, or knowing it to be likely, that she will be, forced or seduced to illicit
intercourse with another person, shall be punished by imprisonment for a term not exceeding
ten years, as well as a fine”27.

Sec.s 366A and 366B of the Indian Penal Code 1860 were added in 1923 in response to the
International Convention for the Suppression of Traffic in Women and Children. They intended
to penalize the export and import of young women for prostitution. Sec. 366A, which punishes

24
Chhotelal v. State of Harayana AIR 1979 SC 1497 (1979) CrLJ 1126 (SC).
25
Rajinder v. State of Maharashtra (2002) 7 SCC 721.
26
Indian Penal Code,1860 (India).
27
Indian Penal Code,1860 (India).

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a person who forces or seduces a girl under the age of 18 to move from one place to another
with the intent of forcing or seducing her illicit intercourse with another person, deals with the
procuration of minor girls from one part of India to another. “In these provisions, the term
“illicit intercourse” refers to sexual intercourse between men and women who are not husband
and wife”28and the term “seduced” (to illicit intercourse) refers to the act of inducing, enticing,
or tempting a girl of the specified age to submit to illicit intercourse not only for the first time,
but also at any time or on any occasion.

“To convict someone under 366A, it must be proven that he induced a girl under the age of 18
to move from one place to another with the intent (or knowledge) that she would be forced or
seduced to illicit intercourse with someone other than himself”29. In the absence of any
evidence revealing coercion or inducement by the accused, the charges under Sec. 366A
are dismissed. Sec. 366-B makes it a crime to bring a girl under the specified age from a foreign
country with the intent or knowledge that she will be forced or seduced into illicit intercourse
with another person.

Sec. 367: Kidnapping or abducting in order to subject person to grievous hurt, slavery,
etc :
“Whoever kidnaps or abducts any person in order that such person may be subjected, or may
be so disposed of as to be put in danger of being subjected to grievous hurt, slavery, or unnatural
lust of any person, or knowing that such person will be subjected or disposed of, shall be
punished with imprisonment of either description for a term that may extend to ten years”30.

In Dharshan Singh v. State of Punjab31, the Supreme Court convicted the accused under Sec.
367 of kidnapping and mercilessly beating the victim.

Sec. 368: Wrongfully concealing or keeping in confinement, kidnapped or abducted

person:
“Whoever, knowing that a person has been kidnapped or abducted, wrongfully conceals or
confines such person shall be punished in the same manner as if he had kidnapped or abducted
such person with the same intention or knowledge, or for the same purpose as he conceals or
confines such person”32.

28
Keasl Mal v. Emperor AIR 1932 Lah 555.
29
Manik Molla v. Emperor AIR 1945 Cal 432
30
Indian Penal Code,1860 (India).
31
Dharshan Singh v. State of Punjab, (1994) CrLJ 226 (SC).
32
Indian Penal Code,1860 (India).

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Sec. 368 does not apply to the perpetrator offence of kidnapping or abduction, but rather to his
accomplice who knowingly conceals the kidnapped or abducted person.

To constitute an offense under sec. 368 of the IPC, the prosecution must prove the following
elements:

(1) The subject has been kidnapped or abducted.

(2) The accused was aware that the victim had been kidnapped or abducted.

(3) With such knowledge, the accused wrongfully conceals or confines the person in question.

In terms of the second ingredient, it is an interference that the courts will draw from various
circumstances. Whether there has been wrongful concealment or confinement under sec. 368
is a question that must be determined based on the facts and circumstances of a particular case.

In Smt “Saroj Kumari v. State of Uttar Pradesh, the accused was charged with stealing a new
born child from its mother's delivery bed in the maternity hospital, as the child was found in
the accused's bedroom, despite the fact that she had not given birth to any new born child. The
Supreme Court upheld her conviction under Sec. 368, ruling that under the circumstances, the
interference of concealment and guilt drawn by the lower courts was justifiable and correct”33.

Sec. 369: Kidnapping or abducting child less than ten years with intent to steal from its
person:
“Whoever kidnaps or abducts a child under the age of ten with the intent of taking dishonestly
any movable property from the person of such child shall be punished with imprisonment of
either kind for a term that may extend to seven years, as well as a fine”34.

Sec. 369, as evidenced by its phraseology, punishes kidnapping or abducting a child with the
intent of stealing movable property from the child's person.

33
Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201 (1973).
34
Indian Penal Code,1860 (India).

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 CONCLUSION
Kidnapping and abduction are dangerous acts that jeopardize a person's freedom. Sec.s 359-
369 go a long way toward ensuring people's liberty. They safeguard children against
kidnapping and abduction. Furthermore, they reinforce guardians' rights to exert control over
children who are easily moved and persuaded by the words of conspiring adults. The number
of abduction and kidnapping cases are massive, and it is only growing. There is an urgent need
to prevent these heinous crimes and to halt the spread of the culture of kidnapping and
abduction, particularly when it is done for forced marriages, forced sexual intercourses, and
forced begar, among other things. These children require safe release, medical, psychological,
and legal assistance because such acts deprive them of their childhood joys by subjecting them
to mental and physical torture.

To combat these offences, not only must states collaborate, but also a spirit of cooperation
among nations must be fostered. Furthermore, it must be understood that a criminal would
circumvent the law and engage in these acts. What is needed to prevent these crimes is
collaboration between non-governmental organizations and government agencies, as well as
increased public awareness.

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 BIBLIOGRAPHY
• Mariya Pariwala, Kidnapping and Abduction: Sec.s 359 to 374 under IPC, 1860, Blog
Pleaders, https://blog.ipleaders.in/
• Diganth Raj Seghal, Taking or enticing from lawful guardianship of the minor, Blog
Pleaders, https://blog.ipleaders.in/
• Justice Y V Chandrachud and V R Manohar, Ratanlal And Dhirajlal'S The Code Of
Criminal Procedure, 17th ed. 2017.
• Muthu Kumar, “A study on kidnapping and abduction in India”,
https://acadpubl.eu/hub/2018-120-5/1/88.pdf

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