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The term Kidnapping means that taking away any person without their will with the use of Force, threat and deceit and having some purpose behind it such as Ransom, etc.

Kidnapping is classified into categories under section 359 of Indian Penal Code and these categories defined under section 360 and section 361 of IPC.

As per SECTION 359 of IPC, Kidnapping is of two types:
  1. Kidnapping from India,
  2. Kidnapping from lawful guardianship.

According to section 360 under Indian penal code, it states about Kidnapping From India,
  • Whoever conveys any person beyond the limits of India 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.

"A" is a woman living in Pune. "B" takes "A" to Delhi without her consent. According to the facts "B" has committed the crime of Kidnapping.

According to the section 361 under Indian Penal Code, it states about the 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.

Illustration: "A" is a boy of 13 years of age, living under the lawful guardianship of his mother, "Z". "B" convinces him to accompany him to his house against the consent of his mother. According to Section 361, "B" has committed the offence of Kidnapping from lawful guardianship.

This section also mentions an exception. It says that it does not result in the crime of kidnapping from lawful guardianship, if the person in good faith, i.e, honestly with reason, believes that:
  1. He is entitled to the lawful custody of the child; or
  2. He is the father of an illegitimate child.

Hence, If in the above illustration, 'B' believes that 'A' is his illegitimate son, then his act of convincing him to come to his house without his mother's consent would not result in kidnapping from lawful guardianship.

Case Law:

State Of Haryana V. Raja Ram, Air 1973 Sc

In this case, "J" had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl's father forbade "J" from coming to their house and in response, "J" started sending her messages through the respondent.
  • One day, the respondent went to the girl and asked him to come to his house and later sent his daughter to bring her. At his house, the respondent told her to come to his house at midnight so that she can be taken to "J".
  • That night when she went to his house, the respondent took her to "J".

Judgement Of The Case,
The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:
  • Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.
  • The consent of a child is completely immaterial and only the guardian's consent is relevant to decide whether the offence was committed or not.
  • 'Taking' as mentioned in the Section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of minor to be taken away from his/her lawful guardian.
  • In this case, the respondent was held guilty under section 361 as it was the respondent's action which persuaded the prosecutrix from going out of her father's keeping, against her father's wishes.

S Varadrajan V. State Of Madras, Air 1965 Sc 942

In this case, the meaning of "taking" was further clarified by the court where Varadarajan, the appellant was living next to Savitri's (a minor girl) house. They talked every day and became good friends. One day, Savitri's sister, Rama caught them talking and asked her about it. Savitri told her that she wanted to marry him. Rama told her father about this who inquired Savitri. She started crying but didn't reply to her father's question. Consequently, he decided to send her to a relative's house, away from Varadarajan.

Next morning, Savitri called the appellant and told him to meet her on a certain road. They met and she sat in his car. They both went to the house of P.T. Sami with a view to take him as a witness to their marriage. They went to the Registrar's office where they both got their marriage registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.

On the morning of the day she went away, her father, Natraj realised she was missing and tried to find her around the area where they lived. However, all his attempts were futile and he filed a complaint at the police station. The police took up the investigation and ultimately apprehended the appellant at Tanjore.

Judgement Of The Case,
The court held that where a minor girl leaves the protection of her father to join the accused, knowing and completely understanding the consequences of her act, it cannot be said that the accused has taken her away from the keeping of legal guardian.

In such case, for the accused to be held guilty, it must be established that the accused induced the minor or actively participated in developing such intention in her mind, either immediately prior or at some prior stage of her leaving her father's protection.

The accused cannot be held guilty simply because after leaving her guardian's house willingly she joined the accused and the accused encouraged her to not return to her guardian's house by taking her to different places.

Section 363 Of Indian Penal Code

lays down the punishment for both kinds of kidnapping:
  1. Kidnapping from India
  2. Kidnapping from lawful guardianship.

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.

Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal Code:
  1. Simple Imprisonment:
    This means that during the imprisonment, the prisoner is idle and is not required to do any hard labour.
  2. Rigorous Imprisonment:
    This means that during the imprisonment, the prisoner must engage in hard labour.

Case Law:

Chandrakala Menon And Ors. V. Vipin Menon

In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated. While Vipin Menon filed an application for his daughter's custody, the child continued to live with her maternal grandparents.

One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that Vipin Menon was the natural guardian of the child.

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