Halsbury's Laws of England, 3rd edition, Vol. 10, at p. 758 :
"The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her."
Expression "taking out of the keeping of the lawful guardian" must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian; or, in other words an act but for which the person would not have gone out of the keeping of the guardian as he or she did.
In S. Varadarajan v. State of Madras, , the Supreme Court while dealing with the case of a minor girl, who was on the verge of attaining majority and who herself telephoned the accused to meet her and finding him waiting with a car got into that car of her own accord, held that the accused was not guilty of taking out the girl out of the lawful guardianship of her father as there was no suggestion that the act was done by force or anything like that on the part of the accused. In this regard their Lordships held as follows (para 9) :-
"It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and 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."
Orissa High Court
Biswanath Mallick vs State Of Orissa on 21 October, 1994
Section 363 provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. Essential ingredients of the said section are four in number, i.e., (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words 'lawful guardian' in the said section include any person lawfully entrusted with the care or custody of such minor or other person. The word 'take' means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person.
The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperciptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go. to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word 'entice' involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do.
Supreme Court of India
Parkash Vs. State of Haryana (2 December 2003)
"The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I.P.C." When the evidence on record is tested in the background of aforesaid legal principles, the inevitable conclusion is that the trial Court and the High Court were justified in convicting the accused. The sentence as imposed also appears to be liberal when loathsome nature of the offence is considered.
Supreme Court of India
State Of Haryana vs Raja Ram on 27 October, 1972
The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and control-appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
Supreme Court of India
Thakorlal D. Vadgama vs The State Of Gujarat on 2 May, 1973
The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt. In State of Haryana v. Raja Ram(A.I.R. 1973 S.C. 819), this Court considered the meaning and scope of s. 361, I.P.C. It was said there "The object of this section seems as much to protect the minor children from being seduced for improper purposes as. to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this--Section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor........ out of the keeping of the lawful guardian of such minor" in s. 361, are. significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be. compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would: be sufficient to attract the section".
In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some' English decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in s. 361, I.P.C. is "whoever takes or entices any minor The word "takes" does not necessarily connote taking by force and'-it is not confined only to use of force, actual or constructive. 'This word merely means, "to cause to go", "to escorts' or "to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices', as 'used in s. 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,and content from the other. The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s. 3 6 1, I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then 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. The ;question truly falls for determination on the facts and circumstances of each case.
Orissa High Court
Biswanath Mallick vs State Of Orissa on 21 October, 1994
So far as Section 366 is concerned, the essential ingredients are : (i) kidpnapping or abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second part of the section requires two things. (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place; and (2) such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. The word 'woman' has been defined in Section 10. It includes a minor female. If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The intention of the accused is the basis and the gravemen of offence under Section 366. The volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. Kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. It consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. Abuduction is an offence as defined in Section 362 when a person is by force compelled or by deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se in terms of Section 363. Abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. But as kidnapping also may be for the same purposes, Sections 364 to 366 deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments.
SECTION 368:
Supreme Court of India
Smt. Saroj Kumari vs The State Of U.P. on 24 November, 1972
According to the prosecution, the second accused kidnapped a minor child of Smt. Gomti Devi at about 4.00 A. M. on November 6, 1963. P. W. 1 had given birth to a male child at the Dufferin hospital at Bareilly on the evening of November 5, 1963. The second accused, who was the sister of an aya working in the said hospital, was noticed on the evening of November 5, moving about near the bed where Gomti was lying with her new-born baby. She was noticed by P. W. 12 and on enquiry, she told the latter that she was waiting to see some patient in the clean ward. At about 4.00 A. M. on November 6, 1963, the second accused took away the new-born male child from P. W. 1 on the representation that the staff nurse wanted to do the cord dressing of the child. Believing her representation, P. W. 1 allowed her to take the child. As the child was not returned to the ward even after the lapse of about an hour and a half, P.W. 1 informed the sister on duty about the same. A search was made for the second accused, as well as the child, in the hospital premises. As she was not found, the doctor as well as the Superintendent of the hospital were informed. After preliminary enquiries by the Superintendent of the hospital the matter was reported to the Police. The investigation was taken up by R. W. 14 and in consequence of vigorous search made by the Police party, the child was recovered at about 9.00 A. M. from the first floor of the house owned by one Ram Dass, which was occupied as a tenant by the appellant. At the time of seizure of the child, the appellant was lying on the cot with the child beside her and the second accused was sitting in their company in the same room. The child was identified by the mother and other hospital authorities. The identification was easy in view of the fact that the child was in the hospital's dress and it was also having the ticket number given in the hospital.
To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:
(1) The person in question has been kidnapped.
(2) The accused knew that the said person had been kidnapped.
(3) The accused having such knowledge, wrongfully conceals or confines the person concerned.
the appellant's attempt was to deprive another mother of her child and in the circumstances we are not inclined to interfere with the sentence. It is a matter for the State to have regard to all the circumstances of the case and deal with the matter.
In the result the appellant's conviction and sentence are confirmed and the appeal is dismissed.
It has been observed in Mst. Asma v. State 1967 Cri LJ 311 (All), that where the girl abandons her parent and guardian of her own accord and seeks protection of strangers the person who gives protection to such a girl is entitled to get benefit of doubt on the question whether there was really any 'taking' by him.
Similarly in Mst. Bhagia v. State of Bihar 1967 Cri LJ 1240 (Pat), it has been held that if minor girl leaves voluntarily or stays out of her house and some-one picks her up with a view to help her, it does not amount to kidnapping.
Allahabad High Court
Zahoor Ali vs State Of U.P. on 8 February, 1989
Kumari Chhoti is daughter of Majeed resident of Rampur Khatra Police Station Safdarganj district Barabanki. She was, according to the prosecution case, about 10 years old at the time of the incident. Her mother died a few years before the incident and her father was a patient of paralysis. She was, therefore, living with her brother-in-law (Bahnoi). She left the place of her brother-in-law a few days before the occurrence and came to Charbagh Railway Station Lucknow and there she was living on alms whatever she used to get by begging. Zahoor Ali appellant is a rickshaw puller. The case of the prosecution is that Zahoor Ali appellant met Kumari Chhoti at Charbagh Railway Station Lucknow a few days before 29-10-1984 and brought her to his house in Mohalla Mali Khan Sarai Thakurganj Lucknow. There he committed rape on her. Since Kumari Chhoti was suffering from liver ailment, he got her admitted in State Takmiul Tib Hospital Lucknow on 29-10-1984. Zahoor Ali described himself as father of Kumari Chhoti. She remained admitted in Hospital for a few days. She told other patients admitted there that Zahoor Ali is not her father but a rickshaw puller and has brought her from Charbagh Railway station, kept her at his house in Mohalla Mali Khan Sarai a few days, misbehaved with her there and when she fell ill, he got her admitted in the Hospital describing her as his daughter.
The statement of Kumari Chhoti disclosed in her cross-examination that her mother died a few years back and her father was a patient of paralysis. She further states that though she has two brothers, she was sent to live with her brother-in-law (Bahnoi) where she was grazing his she-buffaloes. It shows that her father and brothers were not in a position to provide her food, clothing etc. She lived at her brother-in-law's place for about two months. One day, one of the she-buffaloes was impounded in the cattle pound due to which she was much frightened. She, therefore, left the house of her brother-in-law and came to Barabanki where she earned her livelihood by begging. She further stated that she used to sleep at the hotel of one Ghaffar in Barabanki and from there she came to Lucknow Charbagh by Bus and there also she was living as beggar. It shows that she had left lawful guardianship of her father out of her own accord. It may also be added here that after her recovery she refused to go with her father and preferred to live at Protective Home. All this shows that she left guardianship of her father for good with intention never to go back under it.
COURT HELD :" It has been observed above that the case of rape has not been proved against the appellant. It has also been mentioned above that there has been no enticing, kidnapping or seduction in the present case.
Thus, in the present case prosecution has not been able to prove that Kumari Chhoti was kidnapped or abducted by Zahoor Ali with criminal intent. He could not, therefore, be convicted for the offence under Sections 363 and 366 IPC.
The appeal is allowed. The conviction and sentence of Zahoor Ali appellant for the offence under Section 363, 366 and 376 I.P.C. are set aside. The appellant is in Jail. He shall be released forthwith, if not required to be detained in connection with some other offence."
Supreme Court of India
Ganga Dayal Singh vs State Of Bihar on 31 January, 1992
The narrative of the prosecution case is as follows:
P.W. 4 Hardeo Thakur is the father of the minor girl. He and the appellant were doing potato business. On the previous night, namely, intervening night on 11th and 12th September, 1969, the appellant came to the house of P.W. 4 and the next morning he abducted the minor girl. She was seen being taken away by one of the witnesses whose evidence was recorded in the Committal Court. . Five circumstances have been established as against the appellant. The appellant and the complainant P.W. 4 were together doing potato business; the accused used to go to the house of the complainant; in the eventful night, the appellant stayed at the house of the complainant; in the morning the appellant was seen taking the minor girl and thereafter the minor girl disappeared and her whereabouts are not known. CONVICTION FOR KIDNAPPING WAS UPHELD .
Delhi High Court
Deep Chand @ Dipu vs State on 8 September, 1999
On 31.7.1976 Santosh and Asha, both were around 15 years of age, started for school but never reached the school. On search it was found that one Deep Chand @ Dipu abducted them and took them, to Khurja and brought them back to Delhi. On 22.8.1976 both the girls were found present at the waiting room of Old Delhi Railway Station wherefrom they were recovered.
The statement of both Santosh and Asha were recorded. PW-12 Asha in her statement has mentioned that she was acquainted with Deep Chand accused and they used to meet and roam about together and she used to go out with Deep Chand on her own accord. On 31.7.1976 she had asked Deep Chand to take her out of Delhi for an outing. Santosh had asked Asha to take her also along with her as her father used to beat her every day and if they did not take her along with them she would commit suicide. Further case of the prosecution is that both the girls Asha and Santosh reached the Old Delhi Railway Station. There they met Ajit and Deep Chand. Ajit did not accompany them but Deep Chand had taken the girls to Khurja and they returned on 22.8.1976.
court held :- " The appeal filed by the appellant is allowed and the appellant Deep Chand's conviction under Section 363 IPC is set aside and he is acquitted of this charge."
Difference between Kidnapping and Abduction : -
Kidnapping is classified in Section 359 into two categories and is defined in Section 360 and 361 which relates to Kidnapping from India and Kidnapping from Lawful Guardianship.
Definition to the offence of Abduction is given under Section 362 of the Indian Penal Code.
The offence of kidnapping relates to taking away of girl under age of 18 and boy under age of 16 and people of unsound mind.
The offence of Abduction is in respect of all persons.
Kidnapping is an offence which involves taking away or enticing of a person.
Abduction involves taking away of a person by fraud or by force.
Intention of the person is of no significance. Once it is established that that taking away either outside India or outside the lawful guardianship is present, it amounts to kidnapping.
Intention plays a major role in the offence of abduction. A person is punishable only if abduction is done with an ill intent or criminal intent.
Kidnapping is a substantial offence and is punishable under Section 363 of the Indian Penal Code.
Abduction is merely an auxiliary act and is not punishable unless it is done with a criminal intent.
Consent of the person who is taken outside the custody of lawful guardian is immaterial.
Consent given by the person who is taken, takes the act out of the purview of abduction.
Once a person is taken out of the country or outside the custody of lawful guardian, the offence of kidnapping is complete.The offence of abduction involves forcibly or fraudulently taking of a person from one place to another, hence it is a continuing offence.
Orissa High Court
Rabinarayan Das vs State on 31 July, 1991
Shorn of unnecessary details, the factual backdrop as depicted by the prosecution is that the prosecutrix, a blind girl (PW 1) used to go to Bhubaneswar for trainings in music. On 6-3-1987, she was travelling from Cuttack to Bhubaneswar by bus. The petitioner was a co-passenger and when the prosecutrix got down at Bhubaneswar and took a rickshaw to go to her destination, the petitioner sat by her side and travelled with her. Instead of dropping her at her destination, she was taken to the Orissa Secretariat where she was raped.
In terms of Section 362, IPC, "abduction" means, whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The expression "deceitful means" includes a misleading statement. It is really speaking a matter of intention. The intention of the accused is the basis and the gravamen of the offence. The volition, the intention and the conduct of the woman do not determine the offence. Here the prosecutrix was to go to her school. But the petitioner took her to the Secretariat premises. No evidence is forthcoming that she went out of her own volition without any inducement by the petitioner.
Inducement does not not necessarily involve any force or compulsion. It simply means persuation, but for abduction it must be by deceitful means. There is nothing to show that the prosecutrix had gone on her own volition. The place where she had been taken was not her destination. Any act on the part of a person to lead a woman astray from the path of rectitude is seduction and if it followed by intercourse, it will be seduction for illicit intercourse.
ABDUCTING AN UNCONSCIOUS PERSON :-
Supreme Court of India
Subhash Krishnan vs State Of Goa on 17 August, 2012
The view taken by the learned trial Court for acquitting the said accused persons proceeded from the fact that the victim Shanu fell unconscious and thereafter, he was put in a dicky of the Maruti van. This fact, the learned trial Court reasoned, did not further materialize into his prevention from proceeding in any direction and or his abduction in order to murder him or to put him in danger of being murdered. Essentially both the offences i.e. wrongful confinement and abduction are the offences which are committed as a result of curtailment of personal liberty. The offence of wrongful confinement as defined under Section 340 of the Code occurs when individual is wrongfully restrained in such a manner as to prevent him/her from proceeding beyond certain circumscribing limits. The offence of abduction under Section 362 of the Code involves use of force or deceit to compel or induce any person to go from any place. Evidence clearly shows that the victim Shanu by use of criminal force i.e. the assault was made to loose his consciousness. Even if the victim would have wished to proceed in any one direction, he would not have been in position to do so for the reason of his unconsciousness. Certainly, Shanu never wished to go with his assailants in the Maruti Van, but was compelled by the said accused persons to go from the place of incident to the place where he ultimately met his death. Deceit involves tricking away of individual from reality. Unconsciousness paralyzed the mental faculties of the victim and freezed his perception as regards the place. Virtually, the victim was, thereafter, tricked away from the reality while in unconscious state and made to go from one place to another.
As rightly pointed out by the High Court under Section 362, IPC when by force or deceit if any person is compelled or induced to go from any place and such an abduction takes place in order to ultimately eliminate him, the offence would be made out under Section 364, IPC. As rightly pointed out by the High Court, examining the conduct of the appellant along with the other accused in wrongfully restraining the deceased by inflicting severe injuries on the body of the deceased i.e. by causing as many as 36 injuries in which process the person lost his conscious where after he was shifted to a different place, where it ultimately came to light that the person was killed by hanging, every description of the offence under Sections 342 and 364 with the aid of Section 34, IPC was clearly made out. Therefore, we do not find any fault in the said conclusion of the High Court in having reversed the judgment of the trial Court for convicting the appellant for the offence under the said Sections.
Orissa High Court
Dutta Pradhan And Ors. vs State Of Orissa on 15 February, 1985
According to the custom prevalent in the Kandha tribe, one of the recognised forms of marriage is that a young man forcibly takes away a young girl and later, with the consent and full participation of elders of both families marriage is solemnised. By advancing this argument the learned Counsel wanted to convey that petitioner Rajendra, a young man forcibly took away Baseli, a young girl to marry her according to the tribal custom. The notion is entirely misconceived. The tribal custom, if any, may be confined to young and unmarried men and women according to which the former makes a show of forcibly taking away of the latter after which some form of marriage is solemnised. But by no stretch of imagination such a custom, if any, will legalise a crime according to the penal law of the land and go to the extent of compromising an action, whereby, a married woman is forcibly! kidnapped from her lawful guardian and against her will which is a punishable crime. The contention is entirely unacceptable. Conviction of appellants affirmed.
Supreme Court of India
Sucha Singh vs State Of Punjab on 22 March, 2001
when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc.. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle to be laid down is that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.
section 364A : -
Supreme Court of India
Malleshi vs State Of Karnataka on 15 September, 2004
To attract the provisions of Section 364 A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom.
It cannot be laid down as a strait- jacket formula that the demand for payments has to be made to a person who ultimately pays. By way of illustration it can be said that a rich business man is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364 A. It has to be seen in such a case as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim.
Delhi High Court in Netra Pal v. The State (NCT of Delhi) (2001 Crl. L.J. 1669) to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled.
To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one's due;" "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made.
Netra Pal's case (supra) was one where a child was kidnapped. The court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not under Section 364 A but was under Section 362 of the IPC. Accordingly conviction of the accused was altered to offences relatable to Sections 363 and 365 of the IPC.
In Netra Pal's case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364 A has no application as no demand has been communicated. The position factually is different here. Ultimately the question to be decided is "what was the intention? Was it demand of ransom"? There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.
Supreme Court of India
Anil @ Raju Namdev Patil vs Administration Of Daman & Diu, ... on 24 November, 2006
The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom.
Supreme Court of India
Vikas Chaudhary vs State Of Nct Of Delhi & Anr on 11 August, 2010
If Section 364A I.P.C. and Section 472 Cr.P.C. are to be read together, it has to be held that even after the death of the victim every time a ransom call was made a fresh period of limitation commenced
TRIBAL CUSTOMS OF FORCED MARRIAGE ARE NO DEFENCE TO CHARGE OF SECTION 366 UNLESS SAVED BY STATUTE ITSELF (KUNWARSINGH V. STATE OF MP 2013 CR LJ 1567 (MP))
(366 IS ALSO NOT A MINOR OFFENCE UNDER SECTION 376 AS ITS OF DISTINCT AND DIFFERENT CATEGORY)
REMEMBER KIDNAPPING OFFENCES ARE OFFENCES WHICH INVOLVE STRICT LIABILITY .
Regina v. Prince, L.R. 2 C.C.R. 154 (1875), held the mens rea necessary for criminal liability should be required for the elements central to the wrongfulness of the act, and that strict liability should apply to the other elements of the statute, such as the believed age of an abductee being irrelevant. In this case accused was charged for kidnapping a minor girl , his plea of honest belief that the girl was not a minor was rejected.
“Parental Kidnapping,”
A parent who does not have legal custody of a child can be convicted of kidnapping. When a parent takes a child without the other parent’s consent, it is considered parental kidnapping. States do not have a specific law “Parental Kidnapping,” but most states have arranged their general kidnapping laws to provide for the same type of offence
even if a parent took their child without the consent of the custodial parent. Whether or not the taking of a child by a parent is considered parental kidnapping.