A brief on Kidnapping, Abduction & Offence | Legal Reasoning for CLAT PDF Download

Introduction

Kidnapping and abduction are particular types of offences under the law of crime. Under these offences, a person is taken away secretly or forcible without his consent or without the consent of authorised guardian. Under kidnapping, a person is kidnapped from lawful custody.
Under section 359 of IPC, there are two types of kidnapping:

• Kidnapping from India.
• Kidnapping from lawful guardianship.

Section 360: defines kidnapping from India and section 361 defines that kidnapping from a lawful guardianship.  The offence of abduction is defined under section 362 of IPC.

Kidnapping from India

Section 360 says that whoever conveys any person beyond the limit of India without the consent of that person or of any person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Age limit is immaterial.
This has two essentials:

• Convey any person beyond the limits of India.
• Such conveying must be without the consent of that person or of the person legally authorised to give consent on behalf of that person.

Kidnapping from Lawful Guardianship: Section 361

• Sec. 361 says that 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 guardianship 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.  
• The word lawful guardian here mans any person lawfully interested in care or custody of such minor or another person.

Exceptions to Kidnapping

There is one exception of this section, 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 lawful custody of such child unless such act is committed for an immoral or unlawful purpose. 

• Take or entice away: Take away or entice away means to induce a person for going to another place. The object of this Sec. Is to protect minor children from being reduced ( to corruption) for an improper purposes. 
• Guardian consent: The kidnapping must be without the consent of the guardian. The consent may be expressed or implied.  Thus, to attract this sec. there must be taking or enticing away any minor or unsound mind person out of lawful guardianship.

Abduction

Section 362 says that whoever by force compels or by any deceitful induces any person to go from any place, is said to abduct that person. This section may read with Section 364, 365, and 360.
This section contains two essentials for the offence of abduction:

• Forcible compulsion or inducement by deceitful means.
• The object of such compulsion or inducement must be the going off a person from any place. Thus abduction is an offence under sec.362. If by force a person compels or even by fraudulent means induces any other person to go from any place taken is called abduction.

Punishment for Kidnapping under Section 363

• 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 be liable to a fine.
• Theft is an offence in which the moveable property of a person is taken away without his consent. Such property must be taken away dishonestly. Thus in theft, there would be moveable property.  It should be taken dishonestly and without the consent of the owner. 
• Theft has been defined in Section 378 of IPC. Simultaneously the punishment for the commitment of an act of theft has also been defined in Section 379 of IPC.

Offence

Under section 40 of Indian Penal Code, any act/omission punishable by law is an offence.
To constitute an offence 4 things are required:

1. Person: 

• A person includes a company or a body of persons. 
• Persons which come under the chapter of “General Exceptions” are not persons.

2. Intention: 

• Intention must be a wrongful intention or a guilty intention. 
• Thus there should be Mens rea for committing a crime which means Guilty intention. 
• Maxim: “Actus non facit reum nisi mens sit rea”. This means: that no act is an offence unless done with a guilty mind.
  • Exceptions of mens rea: 
    (i) Kidnapping
    (ii) Bigamy
    (iii) Adultery
    (iv) Contempt of Court
    (v) Public nuisance
    (vi) Cases of strict liability

3. Act/ Omission: 

• Act means “to do something”. 
• Omission means “to abstain from doing anything” or “non-fulfillment of a liability”. 
• Under IPC act also includes omission. The code also says that an act includes one act or a series of acts. Similarly, an omission includes one omission or a series of omissions. 
• Thus, there must be an “actus reus” which means a wrongful act.

4. Injury: There are 4 types of injuries:
(i) Body: injuries like hurt, grievous hurt,  murder, attempt to murder, attempt to suicide, dowry death, culpable homicide etc.
(ii) Mind: cruelty etc
(iii) Reputation: defamation etc
(iv) Property: Theft, robbery, dacoity etc. 

• IPC describes only one kind of property which is called “movable property”. The words “movable property” intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth. 
• Thus movable property includes Corporeal property or tangible property which means a property that can be perceived by the senses. 
• And it does not include “land”, “things attached to the earth” or “permanently fastened to anything, which is attached to the earth”.