Jamia Millia Islaimia: Faculty of Law
Jamia Millia Islaimia: Faculty of Law
Jamia Millia Islaimia: Faculty of Law
Faculty of Law
Project
Batch: 2018-2023
INTRODUCTION
Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful
guardianship.
Section 361 in The Indian Penal Code – 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.1
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 .
1
1 Section 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 of 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
To constitute an offence under this section the following conditions must
exist –
1. There must be taking or enticing of a minor, or a person of unsound
mind;
2. Such minor must be under 16 years of age, if a male, or under 18 years of
age, if a female;
3. Taking or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind; and
4. Taking or enticing must be without the consent of such guardian.
The courts have formulated certain guiding principles in section 361, besides its
essential ingredients, which are as follows:
1. In the case of minor girls this section is attracted irrespective of the question
whether she is married or unmarried.
2. The consent of the minor is immaterial. (State of Haryana vs Raja Ram,
AIR 1973 SC 819) -
3. The word kidnapping has been derived from the word "kid" meaning child
and "napping" means to steal Thus kidnapping literally means child stealing
and the word kidnapper originally meant to signify one who stole children
and others to provide servants and laborers for the American Plantations.
The offense of kidnapping is an aggravated form of wrongful confinement
and is, therefore, an offense in which all the elements of that offense are
necessarily present. Section 359 to Section 369 of the code has made
kidnapping and abduction Punishable. The underlying object of enacting
these Provisions is to secure the personal liberty of citizens, to give legal
protection to children of tender age from being abducted or seduced them for
improper purposes and to prevent the rights of parents and guardians over
there wards 2
1) Kidnapping –
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.
Here the lawful guardianship shall include any person who has been authorized
by law to take care of the person who has yet not attained the age of majority. A
lawful guardian may be the parents, in-laws, etc.
Means
Consent
(2) Such minor must be under 16 years of age if a male or under 18 years of
age if a female
(3) Taking or enticing must be out of the keeping of the local Guardian of
such minor or person of unsound mind; and
Kidnapping has been codified as a criminal offence under the Indian Penal
Code,1860. Section 359-363 deals with the offence of Kidnapping. Kidnapping
is the unlawful taking away or conveying of a person and wrongfully confining
the person against his or her will. Kidnapping literally means “Child-Stealing”
however the offence has not been only confined to child stealing. It is an
aggravated form of wrongful confinement.
3
R v. Prince- Taking, Consent and a Reasonable Mistake of Fact The case of R.
v. Prince12 is a nineteenth century English case which has generated a lot of
debate on the relevance of means rea in certain offences. In this case, Henry
Prince was charged under section 55 of the Offences against the Person Act,
1861 for taking Annie Phillips a fourteen year old girl. The section penalised
unlawful taking of an unmarried girl below sixteen years of age out of the
possession of her lawful guardians including her father and mother. The most
interesting facet of this case is that the girl looked much older than sixteen and
stated to Prince that she was eighteen years old. Under the mistaken belief that
Annie was eighteen years old, Prince had ‘taken’ her out of her father’s custody.
The jury also found that Prince had acted under a reasonable belief and that the
girl did look a lot older than 16. However, Prince was convicted of the offence
on the ground that his intention did not really matter in an offence which did not
require the means rea element to be proved as per the statute. In other words,
the offence made provision for strict liability. The dissenting opinion in this
case was based on the premise that the defence of a reasonable mistake of fact
should have been made available to Prince as it is a fundamental premise of
Criminal Law that there cannot be a crime without a guilty mind. Unfortunately,
the defence was not made available to Prince and he was convicted of the
offence under section 55 of the Offences against the Person Act, 1861. 4
Thakorlal D. Vadgama v. State of Gujarat AIR 1973 SC 2313 12 L.R.2
C.C.R.154
The act of taking is not a continuous act and as such when once the boy or girl
has been actually taken out of the keeping, the act is complete.
The Court in Vardargan V. State of Madras highlighted the dichotomy between
‘taking’ and ‘allowing a minor to accompany a person’. Stating that the two are
not synonymous held that where the minor having capacity to understand the
consequences of her actions voluntarily joins the accused on her free will, the
accused cannot be held liable for taking her away from the keeping of lawful
guardian.
The taking or enticing must also be without the consent of the guardian.
The consent of the minor is immaterial for this section and its only the consent
of the guardian that will take the case out of the purview of this section.
The Supreme Court in Pradeep Kumar v. State of Bihar and And held that the
consent obtained by lying to the father of the girl regarding the purpose of
taking his minor daughter away cannot be termed as consent under the purview
of this section and such taking away would amount to kidnapping.
Punishment