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KIDNAPPING AND ABDUCTION

QUESTION BANK

Q.1. What is kidnapping from lawful guardianship? Distinguish between Kidnapping

and Abduction.

SHORT NOTES

1. Kidnapping from lawful guardianship.

2. Kidnapping women to compel her to marry or force her to illicit intercourse.

3. Kidnapping and Abduction.

SYNOPSIS

I] KIDNAPPING:-

A)    INTRODUCTION:-

B) KIDNAPPING MEANS:-

C) KINDS OF KIDNAPPING:-

1) Kidnapping from India (S. 137 (1) (a): -

2) Kidnapping from Lawful Guardianship (S. 137 (1) (b)): -

a) Explanation: -

b) Exception: -

3. Punishment (S. 137 (2))-    

D) DIFFERENCE BETWEEN ‘KIDNAPPING FROM INDIA’ AND

‘KIDNAPPING FROM LAWFUL GUARDIANSHIP’

II] ABDUCTION (S. 139):

A) DEFINITION:-

B) DIFFERENCE BETWEEN ‘KIDNAPPINGS FROM GUARDIANSHIP’ AND

‘ABDUCTION’:-

1) As to Person: -

2) Removal of Person: -

3) Means Used: -

4) Consent: -

5) Intention: -

6) Type of Offence: -

7) Nature of Offence: -

C) Aggravated forms of Kidnapping or Abduction:-

I] KIDNAPPING:-

A)    INTRODUCTION: -

Kidnapping and Abduction are offences against the human body. Ss. 137 to 142 have made Kidnapping and Abduction punishable. The object of these provisions is to secure the personal liberty of citizens, to give legal protection to the children from being abducted or seduced for improper purposes, and to preserve the rights of parents and guardians over their wards for custody or upbringing.

B) KIDNAPPING MEANS: -

At Common Law (Law of England), Kidnapping consists of stealing and carrying away or secreting of any human being against his/ her consent or the consent of some person legally authorised to consent on behalf of such person.

The offence of Kidnapping is an aggravated form of ‘wrongful confinement’. Therefore, in the offence of Kidnapping, all necessary elements of ‘wrongful confinement’ must be present. It is, however, a confinement of such a serious form that this Code treats it as a distinct offence.

C) KINDS OF KIDNAPPING:-

Kidnapping is of two kinds-

1) Kidnapping from India (S. 137 (1) (a): -

Whoever conveys any person-

1. beyond the limits of India,

1. 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.

Thus, the offence under this section may be committed in respect of any

person, male or female, major or minor, irrespective of their nationality.

2) Kidnapping from Lawful Guardianship (S. 137 (2)): -

Whoever takes or entices-

1. any child, or

1. any person of unsound mind-

i) out of the keeping of the lawful guardian of such child or persons of unsound mind,

ii) without the consent of the lawful guardian,

- is said to kidnap such a minor or person from lawful guardianship.

a) Explanation: - The words ‘lawful guardian’ in this clause include any person

lawfully entrusted with the care or custody of such minor or other person.

b) Exception: - This clause 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 an act is committed for an immoral or unlawful purpose.

The object of this section is to protect minors and persons of unsound mind from exploitation and to protect the rights and privileges of guardians having the lawful charge or custody of their persons.

The gravity of the offence of kidnapping lies in the ‘taking’ or ‘enticing’ of a minor under eighteen years of age out of the keeping of the lawful guardian without the consent of such guardian. Thus, the consent of the minor, who is taken or enticed, is wholly immaterial; only the guardians’ consent takes the case out of the purview of S.137 (2). The term ‘child’ is defined under S. 2 (3) of BNS, 2023 as “Child” means any person below the age of eighteen years. Earlier, under the I.P.C the age for a girl child was 18 and for a boy was 16 years.

However, in Varadrajan’s Case

Facts: - Savitri is a student in the second year of B.SC. i.e., below 18 years but on the verge of attaining majority, telephoned the accused to meet her in his car at a certain place, went to that place, and, finding the accused waiting in the car, got into that car on her own accord. Went together to the registrar’s office and got their marriage registered. Thereafter, they remained husband and wife. There was no evidence of the use of force or inducement. On the contrary, it appeared that insistence on marriage came from the girl.

Held: - That the accused is not guilty of taking away the girl out of the keeping of her

father.

3. Punishment (S. 137 (2))-

    Kidnapping from India or from lawful guardianship is punishable with imprisonment up to 7 years, and the offender shall also be liable to fine.

D) DIFFERENCE BETWEEN ‘KIDNAPPING FROM INDIA’ AND

‘KIDNAPPING FROM LAWFUL GUARDIANSHIP’

1) A person of any age can be kidnapped from India. Whereas only a minor

and a person of unsound mind can be kidnapped from lawful guardianship.

2) In Kidnapping in India, consent of the person kidnapped or authorised

by consent is a good defence. Whereas, in kidnapping from a lawful guardian, the consent of a minor is no defence.

3) The offence of Kidnapping is complete when the minor is actually taken

from lawful guardianship; therefore, it is no continuing offence, and therefore, cannot be abetted.

However, Kidnapping from India is a continuing offence that can be abetted.

II] ABDUCTION (S. 139):

A) DEFINITION: -

Abduction itself (simpliciter) is no offence unless it is done with the intent to commit an offence, to rob, to murder or to confine or to compel marriage.

S. 137 defines ‘Abduction’ as-

Whoever-

i) by force, compels, or

ii) by deceitful means induces,

1. Any person who goes from any place is said to ‘Abduct’ that person.

The words ‘by force compels’ denote that the accused must use actual force. Mere show or threat does not constitute ‘Abduction’.

    The words ‘by deceitful means’ denote anything done by the accused to mislead another. Thus, inducing a girl to leave her guardian’s house constitutes abduction.

B) DIFFERENCE BETWEEN ‘KIDNAPPINGS FROM GUARDIANSHIP’ AND

‘ABDUCTION’:-

1) As to Person: -

Kidnapping from lawful guardians is committed only in respect of child under 18 years of age, or a person of unsound mind. But abduction can be committed in respect of any person of any age.

2) Removal of Person: -

The person kidnapped is removed from lawful guardianship. However, a child without a guardian cannot be kidnapped. Abduction relates exclusively to the person abducted.

3) Means Used: -

Kidnapping is simply taking away a minor or a person of unsound mind. The means used are not relevant. In abduction, force, compulsion, or deceitful means must be used.

4) Consent: -

In ‘kidnapping’, the consent of the person kidnapped is immaterial. In abduction, consent does not constitute an offence if freely and voluntarily given.

5) Intention: -

In kidnapping from a lawful guardian, the intention of an offender is immaterial to constitute an offence. Whereas, in kidnapping from India, the intention of the offender in abduction is an important factor in determining the guilt of the accused.

6) Type of Offence: -

Kidnapping is a substantive offence. Abduction is not a substantive offence and is not punishable unless done with the intent of committing the other offences.

7) Nature of Offence: -

Kidnapping is not a continuing offence. It is complete as soon as a minor or someone of unsound mind is removed from lawful guardianship.

Abduction is a continuing offence and continues so long as the abducted person is removed from one place to another.

C) Aggravated forms of Kidnapping or Abduction:-

    Kidnapping and abduction under the Bharatiya Nyaya Sanhita, 2023 (BNS) become more serious when committed for certain criminal purposes. These situations are called aggravated forms because they involve higher degrees of danger, exploitation, or harm to the victim. The BNS has consolidated and strengthened provisions compared to the old IPC, prescribing stricter punishments such as life imprisonment or even the death penalty in extreme cases. They are as follows-

i) Kidnapping or maiming a child for the purpose of begging: Punishment-

(1). Kidnapping/Obtaining custody for begging: Rigorous imprisonment not less than 10 years, but may extend to life imprisonment, and fine.

(S. 139 (1));
(2). Maiming a child for begging: Rigorous imprisonment not less than 20 years, but may extend to imprisonment for the remainder of natural life, and fine.. (S. 139 (2));

ii) Kidnapping or abducting in order to murder or for ransom etc: Punishment-imprisonment for life or rigorous imprisonment for 10 years and fine (S. 140);

iii).     Kidnapping or abduction for ransom or to compel Government/organisation/person, with threat or causing of death or hurt, is punishable with death or life imprisonment and fine. (S. 140 (2)).

iv) Kidnapping or abducting a person with intent to secretly and wrongfully confine them is punishable with imprisonment up to 7 years and fine. (S. 140(3)).

iv) Kidnapping or abduction to subject a person to grievous hurt, slavery, or unnatural lust is punishable with imprisonment up to 10 years and fine (S. 140 (4)).

v) Importing into India a girl under 21 years or a boy under 18 years for illicit intercourse is punishable with imprisonment up to 10 years and fine. (S. 141).

vi) Whoever knowingly conceals or confines a kidnapped or abducted person shall be punished as if they had themselves committed the kidnapping or abduction with the same intent.(S. 142);

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