Kidnapping And Abduction Under Indian Penal Code | Law Optional Notes for UPSC PDF Download

Understanding the Exception Clause

Overview

• The exception clause does not apply to individuals acting in good faith who believe they are the father of an illegitimate child or are entitled to lawful custody of such a child.

Conditions

• Individuals must act in good faith.
• The act should not be committed for an immoral or unlawful purpose.

Explanation

• If a person genuinely believes they are the father of an illegitimate child, their actions regarding the child are not covered by this exception unless the actions are immoral or unlawful.
• Similarly, if someone believes they have a lawful right to the custody of an illegitimate child, their actions are exempt from this clause as long as their intentions are not immoral or unlawful.

Example

• For instance, if a man genuinely believes he is the father of a child born out of wedlock and takes steps to establish paternity, his actions would fall outside the scope of this exception.
• Conversely, if an individual falsely claims to be the father of a child solely to gain some advantage or to harm another person, their actions would not be protected by this provision.

The Purpose of this Section

• The main aim of this section is to safeguard minors and individuals with unsound minds from exploitation.
• It also aims to protect the rights of guardians who are legally responsible for their wards.
• The absence of consent from a parent or guardian is the central element of this section.

Understanding Section 361 of the Indian Penal Code (IPC)

Definition of "Taking Away or Enticing"

• Enticing involves creating hope or desire that persuades a person, especially a minor, to do something they wouldn't typically do. For instance, if an accused person persuades a minor to leave their lawful guardian, it falls under this section.

Criteria for Application of Section 361

• The minor should be under 16 years of age if male and under 18 years if female.
• The minor must be taken away from the lawful guardian without their consent.
• The act of taking must be complete once the minor is out of the guardian's keeping.

Legal Interpretation and Cases

• In the case of Vardargan v. State of Madras, the court distinguished between "taking" and "allowing a minor to accompany." If a minor willingly accompanies someone and understands the consequences, it may not constitute kidnapping.
• In Pradeep Kumar v. State of Bihar and Anr, the Supreme Court ruled that obtaining consent through deception does not qualify as valid consent under this section, and such actions amount to kidnapping.

Understanding Kidnapping

• Kidnapping involves taking a person against their will to an undisclosed location. It is not limited by age, as even adults can be kidnapped. Motives for kidnapping can include ransom or furthering other criminal activities.

By comprehensively analyzing Section 361 of the IPC, we gain insight into the legal implications of taking away or enticing minors or persons of unsound mind. It's crucial to understand the criteria, legal nuances, and real-life applications of these laws to ensure justice and protection for vulnerable individuals.

Abduction under Indian Penal Code

• Abduction is defined in Section 362 of the Indian Penal Code as compelling or inducing a person to move from a place.

Case Law - Bahadur Ali v King Emperor

• In this legal case, the accused posed as a police constable and held a girl in his house under false pretenses related to money.
• The court determined that the actions of the accused constituted abduction.
• In an abduction offense, the offender must either use force or deceitful means to compel the victim.
• The term "force" aligns with its definition in section 349 of the Code, requiring actual physical coercion.
• Inducement involves actively persuading the victim to move to a location they would not have gone to otherwise.
• Deceitful means encompass deceptive actions by the abductor, including misleading statements.
• Simple abduction is not inherently punishable under the Indian Penal Code; it becomes an offense only when linked to specific intentions outlined in subsequent sections.
• For abduction through force, actual force must be employed, and mere threats are insufficient for prosecution.

Difference between Kidnapping and Abduction

Age of Aggrieved Person

• In the case of Kidnapping, the crime is committed concerning a minor, typically under 16 for males and 18 for females or persons of unsound mind.
• On the other hand, Abduction can involve individuals of any age, without any specific age restrictions.

Removal from Lawful Guardianship

• Kidnapping involves the removal of a person from lawful guardianship, where the kidnapped individual is taken away from those legally responsible for them.
• Abduction, however, focuses solely on the person abducted, without considering lawful guardianship.

Means Used

• In kidnapping, the means of taking the minor can be innocent, while abduction may involve force, compulsion, or deceitful methods.

Consent

• In Kidnapping, the consent of the person kidnapped is irrelevant due to their status as a minor.
• Conversely, in Abduction, the consent of the abducted person can impact whether the offense has occurred.

The Intention of the Accused

• In Kidnapping, the intent of the accused is generally immaterial, whereas in Abduction, intent plays a crucial role in determining guilt.

Continuity of the Crime

• Kidnapping is usually a one-time offense, occurring when the minor is taken from lawful guardianship.
• Abduction involves moving the abducted person from one place to another, making it a continuous process.

Kind of Offence

• Kidnapping is a substantive offense punishable under specific laws.
• Abduction, on the other hand, is often an auxiliary act and requires specific intent for punishment.

Punishment for Kidnapping and Abduction

• Kidnapping is considered a serious offense under Section 363 of the Indian Penal Code (IPC), carrying a punishment of up to seven years of imprisonment along with a fine.
  Specific provisions for different types of kidnapping include:
  • Kidnapping for the purpose of begging (section 363A): Punishable by up to 10 years of imprisonment and a fine.
  • Kidnapping with the intent to murder (section 364): Punishable by up to 10 years of imprisonment and a fine.
  • Kidnapping for ransom (section 364A): Punishable by up to 10 years of imprisonment and a fine.
  • Kidnapping with the intent to wrongfully confine a person (section 365): Punishable by up to seven years of imprisonment and a fine.
  • Kidnapping to compel a woman to marry (section 366): Punishable by up to 10 years of imprisonment and a fine.
  • Kidnapping to subject a person to grievous hurt (section 367): Punishable by up to 10 years of imprisonment and a fine.
  • Kidnapping a child under the age of 10 in order to steal from a person (section 369): Punishable by up to seven years of imprisonment and a fine.
• Abduction, on the other hand, is not considered a standalone offense under the IPC and is treated as an auxiliary act. As such, there is no general punishment outlined for abduction in the Indian Penal Code.
• However, specific types of abduction may attract the following punishments:
  • Abduction with the intent to murder: Punishable by up to 10 years of imprisonment and a fine.
  • Abduction with the intent to wrongfully confine a person: Punishable by up to seven years of imprisonment and a fine.
  • Abduction to compel a woman to marry: Punishable by up to 10 years of imprisonment and a fine.
  • Abduction to subject a person to grievous hurt: Punishable by up to 10 years of imprisonment and a fine.
  • Abducting a child under the age of 10 in order to steal from a person: Punishable by up to seven years of imprisonment and a fine.