Section 359: Kidnapping - Kidnapping is of two kinds: Kidnapping from India and Kidnapping from lawful guardianship.
BNS Section 135 (1) Kidnapping is of two kinds: Kidnapping from India and Kidnapping from lawful guardianship.
(a) 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) whoever takes or entices any child below the age of eighteen years or any person with mental illness, out of the keeping of the lawful guardian of such child or person with mental illness, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship.
Explanation - The words "lawful guardian" in this clause include any person lawfully entrusted with the care or custody of such child or other person.
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 below the the age of eighteen years, 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.
(2) 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.
Section 360: Kidnapping from India - Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person form India.
For an offence under this section the victim may be a male or a female, whether major or a minor. This offence consists of the following ingredients -
(1) Conveying of any person beyond the limits of India.
(2) Such conveying must be without the consent of that person.
If a person has attained the age of majority and has given his consent to his being conveyed, no offence is committed. The age of consent for the purposes of the offence of kidnapping in 16 years for boys and 18 years for girls.
Sec 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 any person of unsound mind, out of the keeping of the lawful guardian of such minor or 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 - This words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception - The 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 believed himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
The provisions of this and subsequent sections under this head are intended more for the protection of the minors and the persons of unsound mind themselves than for the right of guardians of such persons. It may be that the mischief intended to be punished may partly consist, in the violation or the infringement of the guardian's right to keep their wards under their care and custody but more important object is to afford security and protection to the wards themselves against seduction or abduction for improper purposes.
Ingredients - The following are the essential ingredients of this section:
- Taking or enticing away a minor or a person of unsound mind.
- Such minor must be under the age of 16 years, if a male or under the age of 18 years, if a female.
- The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
- The taking or enticing must also be without the consent of the guardian.
Takes or entices away a minor: 'Takes means "cause to go, to escort, to get in possession". In order to prove an offence under this section the prosecution must show that the accused took some active part in the girl's leaving her lawful guardian's custody and taking shelter with him. The taking need not be by force, actual or constructive, and it is immaterial whether the girl consents or not. The taking of the child out of the keeping of the lawful guardianship is necessary.
The word "take" implies want of wish and absence of desire of the person taken. It must be proved that the accused took some active steps, by persuasion or otherwise to cause the girl to leave her home. If the suggestion to go away with the prisoner comes from the girl and he takes merely the passive part of yielding to her suggestion, he is entitled to acquittal. The accused must have done something which led to the girl going out of the keeping of her guardian.
Although merely allowing minor to accompany a person may not ordinarily amount to taking by that person, in certain circumstances it may amount to taking. The factors which should be taken into consideration in deciding whether there has been 'taking' are: the conduct of the parties particularly of the accused at the time and before their going away together, the maturity of the girl and her intellectual capacity to think for herself and to make up her own mind, and the circumstances under which and the object for which she felt it necessary or worthwhile to leave her guardian's protection
In Varadarajan v. State of Madras, a minor girl, who had left the protection her father knowing and having capacity to know the full import of what she was doing voluntarily joined the accused. The Supreme Court observed that there is distinction between taking and allowing a minor to accompany a person. In the present case the accused was held not to have taken her away from the keeping of her lawful guardian. Something more has to be shown, that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian is necessary.
Enticing - "Enticing" is inducing a minor to go of her own accord to the kidnapper. It involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which the person kidnapped would not otherwise do. "Enticing" means that while the person kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in some way by the accused.
In T.D. Vadgama v. State of Gujarat, the accused was charged for kidnapping a minor girl Mohini, below 15 years of age from the lawful guardianship of her father under section 361, Indian Penal Code. It was proved that the accused had at an earlier stage solicited or induced Mohini to leave her father's protection by conveying or indicating and encouraging suggestion that he would give her shelter. Holding the accused liable for kidnapping the Supreme Court held that the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him from him from the offence of kidnapping. In this case the SC has elaborately commented on the meaning of the word "enticing"
It was observed that : The two words, 'take' and 'entice' as used in section 361 IPC are together so that each takes into some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental house completely uninfluenced by any promise, offer or inducement emanating from the guilty party then the latter cannot be considered to have committed an offence as defined in section 361. But if the guilty has laid the foundation by inducement, allurement or threat and if this can be considered as having influence the minor or, weighed with her in leaving her guardian's custody or keeping and going to the guilty party then prima facie it will be difficult for him to plead innocence on the ground that the minor had voluntarily come to him.
When taking is complete: The offence under this section is complete when the minor is actually taken from lawful guardianship and the offence is not a continuing one until the minor's return to his guardian. Where A kidnaps a girl B and gives her to C who accepts her not knowing that she had been kidnapped, A is guilty of kidnapping but C is not. It may sometimes be difficult to determine the precise moment at which the taking is complete but generally speaking, the keeping of the guardian would be an end when the person of the minor had been transferred from the custody of the stranger. The act of 'taking' is not a continuous process, therefore, once the boy or girl is taken out of the keeping, the act is completed and subsequent taking of a minor who had already been kept out of his guardianship constitutes no more taking in the proper sense of the term under this section. Therefore , subsequent takers would not be kidnappers because at the time of taking by them minor had no more been in the lawful guardianship, then so long as he is kept away and is not restored to his guardian it would amount to 'detaining'.
Any person of unsound mind or a minor - The unsoundness of mind must be because of natural reasons, it should not be temporary insanity produced due to alcoholic excess or such other reasons. Where a girl age 20 years was made unconscious due to dhatura poisoning when she was taken away by A, it was held that A was not guilty of kidnapping because the girl could not be said to be of unsound mind. The person kidnapped must be under the age of 16 years if a male and under the age of 18 years if a female. Knowledge of the accused that the person kidnapped was below the statutory age is immaterial. Where a girl under the statutory age of 18 years is kidnapped, it would be no defence that the accused did not know the to be under that age or that from her appearance he might have thought that she was of a greater age. Any one dealing with such a girl does so at his peril, and if she turns out to be under eighteen he must take the consequences, even though he bona fide believed and had reasonable ground for believing that she was over eighteen. The defence that the girl was of easy virtues would not be sufficient to exonerate the accused.
Out of the keeping of lawful guardian - "Keeping" means within the protection or care of the guardian. A minor is said to be in the keeping of a person where he depends upon him for his or her maintenance, support or sustenance. It is not necessary that the minor should be in the physical possession of the guardian. It would be sufficient if he is under continuous control which is for the first time terminated by the act of the accused. If a minor boy goes out into the street or on the playground by himself, or goes on a visit to the market or for a fanfare either with or without the knowledge of the guardian, he is still said to be in the legal keeping of her parents. A minor is no longer in the keeping or control of the lawful guardian if she was driven away from her parental roof or she voluntarily abandoned the control of the guardian on account of ill-treatment. In a case X meets a girl aged 15 years in a park. She tells him that her age is 19 years and that she is ill-treated in her house by her father and that she would be happy to be taken away from home. Thereafter X takes the girl to his house and allows her to remain there. In the case X will not be liable for kidnaping because there is no inducement or active solicitation on the part of the accused which can be said to be the cause of the girl coming out of her father's house, instead she has voluntarily abandoned the control of the guardian on account of ill-treatment.
There must be a taking or enticing of a child out of the keeping of the lawful guardian. If a minor abandons his guardian with no intention of returning back she cannot be deemed to continue in he keeping of the guardian.
Lawful guardian - There is difference between 'lawful guardian'. A guardian may be lawful without being legal. Lawful guardian is one to whom the care and custody of a child is 'lawfully entrusted.' Lawfully entrusted' means that the care and custody of a child has arisen in some lawful manner. The word 'lawful' does not mean that the person who entrusts a minor to the care or custody of another must stand in the position of a person having a legal duty or obligation to the minor.
Under this section guardian must be lawful, he need not be a legal guardian. Therefore, when father of a girl sends her to school with his servant or a friend, the servant or such friend is the lawful guardian without prejudice to the right of possession of the father of the child. The child is still said to be the father's possession or keeping even though the actual physical possession is temporarily with the servant or the friend. Here father is the legal guardian and servant or the friend would be only lawful guardians.
Entrustment - "Entrustment" means the giving, handing over, or confiding of something by one person to another. It involves the idea of active power and motive by the person reposing the confidence towards the person in whom the confidence is reposed. It may by written or oral, express or implied. The entrustment may be by a legal guardian who by so doing reposes his confidence in another (who is called lawful guardian) about the care and custody of the minor. Entrustment may also, in the absence of express or written authority, be presumed from the conduct of a person alleged to be lawful guardian or of the person taking upon himself the duties of care and custody of the minor.
Without the consent of such guardian - Under this section the consent of the minor or a person of unsound mind is immaterial because they are in law incapable of assigning a valid consent. Therefore, taking or enticing of the minor must be without the consent of the guardian.
Hindu law - Among Hindus father is the guardian of his children and is ordinarily entitled to their custody. This rule applies in case of legitimate children. The mother of an illegitimate child is its proper and natural guardian during the period of nurture. In case of legitimate children mother does not have the right to the custody adversely to the father of the child. The mother's custody of the child is considered to be the custody of the father. Therefore, even though mother removes a girl from one place to another, she does so fully consistent with the right of the father as guardian and this does not amount to the taking out of the father's keeping.
If the mother of an illegitimate child while on her death bed entrusts the care of such child to a person who accepts the trust and maintains the child, such a person would be lawful guardian of that child because the care and custody of the child was lawfully entrusted to him. In a case where a minor girl was in the custody of her mother, under orders of the court when the mother had obtained divorce from her husband and the father forcibly removed the daughter from a school, father was held guilty of kidnapping under this section.
Mohammedan Law- Under Mohammedan law if a Sunni father takes away a son under seven years or a daughter before she has attained puberty or an illegitimate child from the custody of the mother he would be guilty under this section because mother is the lawful guardian. Under Sunni law mother is the guardian of her daughter until she attains puberty which is presumed when the daughter completes her fifteenth year. In case of Shia father, if father takes away a son or daughter under seven years or an illegitimate child from the custody of the mother he would be guilty of kidnapping. Even a divorced wife is entitled to the custody of her children.
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