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 from India.
Ingredients
1. The offender must convey the victim beyond the limits of India.
2. Such conveyance must be without the consent of the victim or of some person legally authorized to consent on behalf of that person.
3. If the above ingredients are satisfied, there will be kidnapping from India.
Section 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, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Ingredients
1. The offender must take or entice any minor or person of unsound mind.
2. Such taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
3. Such taking or enticing must be without the consent of such guardian.
4. The minor must be:
(i) if male, under 16 years of age(ii) if female, under 18 years of age
5. If the above ingredients are satisfied, there will be kidnapping from lawful guardianship.
Explanation - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Comment
For a person to claim the protection of the phrase "lawful guardian" for his act, he has to prove that he was "lawfully entrusted" with the "care or custody" of such minor or other person. In other words, the necessary constituents of "lawful guardian" are:
(i) Valid entrustment,
(ii) for the purpose of care/custody
Exception - 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.
Ingredients of Exception
The exception extends the protection from the wrath of Section 361 to the following persons:
(i) any person who in good faith believes himself to be the father of an illegitimate child
(ii) any person who in good faith believes himself to be entitled to lawful custody of such child
However, if the act in question is committed for an immoral or unlawful purpose, the exception will not apply.
Punishment of Kidnapping from India or from lawful guardianship - Section 363 - Up to seven years imprisonment of either description and fine.
Classification of Offence
- Cognizable
- Bailable
- Triable by Magistrate of the First Class
- Non-Compoundable
Important Case Laws
Inducement not immediate cause - Thakorilal D. Vadgama v State of Gujarat (AIR 1973 SC 2314) - The accused was charged for kidnapping a minor girl below 15 years of age from the lawful guardianship of her father. It was established that the accused had at earlier stage solicited or induced minor girl to leave her father's protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under Section 363, the Supreme Court said that the mere circumstances 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 the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case.
Lawful guardian - S. Varadrajan v. State of Madras (AIR 1965 SC 942) - Where facts indicate that a girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out.
Use of word 'keeping': Meaning of - Prakash v State of Haryana (AIR 2004 SC 227) - 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.
Section 362 - Abduction - Whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Ingredients
1. The offender must compel or induce the victim.
2. The victim must be compelled by force or induced by deceitful means.
3. As a result of such compelling or force, the victim must go from any place.
4. If the above ingredients are fulfilled, there will be abduction.
Section 363A - Kidnapping or maiming a minor for purposes of begging —
[NOTE: This section was inserted by Act 52 of 1959 with effect from 15/01/1960]
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients of Sub-Section(1)
1. The offender must either kidnap the minor or obtain his custody, not being his lawful guardian.
2. Such kidnapping or obtaining of custody must be for the purpose of employing or using the minor for begging.
3. If the above ingredients are satisfied, there will be kidnapping of minor for the purpose of begging.
Punishment - Up to 10 years imprisonment of either description and fine.
Classification of Offence
- Cognizable
- Non-bailable
- Triable by Magistrate of the First Class
- Non-Compoundable
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.
Ingredients of Sub-Section (2)
1. The offender must maim the minor.
2. Such maiming must be with the purpose of employing or using such minor for the purpose of begging.
3. If the above ingredients are fulfilled, there will be maiming of minor for the purpose of begging.
Punishment - Imprisonment for life and fine.
Classification of Offence
- Cognizable
- Non-bailable
- Triable by Court of Session
- Non-Compoundable
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.
Comment
This sub-section raises a rebuttable presumption against any person who employs or uses a minor, not being his lawful guardian, for the purposes of begging. The presumption raised will be that such a person has kidnapped or obtained the custody of the minor for the very purpose of begging and as a result, the stringent provisions of sub-section (1) or (2) may be attracted.
(4) In this section,—
(a) ‘begging’ means—
(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;
(b) ‘minor’ means—
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.
Section 364 - Kidnapping or abducting in order to murder - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished...
Ingredients
1. The offender must kidnap or abduct the victim.
2. Such kidnapping or abduction of the victim must be for the purpose of either:
(i) murdering him or(ii) disposing him in such a manner that he is put in danger of being murdered
3. If the above ingredients are satisfied, there will be kidnapping or abducting in order to murder.
Punishment - Imprisonment for life or up to 10 years rigorous imprisonment and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by a Court of Session
- Non-Compoundable
Illustrations
(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.
Section 364A - Kidnapping for ransom etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens 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 inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable...
Ingredients
1. The offender must either:
(i) kidnap or abduct the victim or(ii) keep the victim in detention after such kidnapping or abduction
2. In addition to such kidnapping, abduction or detention, the offender must either:
(i) threaten to cause death or hurt to the victim or(ii) by his conduct give rise to a reasonable apprehension in the mind of the victim that he may be put to death or hurt
3. Such threats or conduct on the part of the offender must be with a view to compel:
(i) the government or(ii) any foreign state or(iii) international inter-governmental organisation or(iv) any other person
(a) to do or abstain from doing any act or(b) to pay a ransom
4. If the above ingredients are satisfied, there will be kidnapping for ransom.
Punishment - Death or Imprisonment for Life and Fine
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Magistrate of First Class
- Non-Compoundable
Section 365 - Kidnapping or abducting with intent secretly and wrongfully to confine person - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished...
Ingredients
1. The offender must kidnap or abduct the victim.
2. Such kidnapping or abduction must be with intent to cause the victim to be secretly and wrongfully confined.
3. When the above ingredients are fulfilled, there will be kidnapping or abducting with intent secretly and wrongfully to confine person.
Classification of Offence
- Cognizable
- Non-bailable
- Triable by Magistrate of First Class
- Non-Compoundable
Section 366 - Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman 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 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 shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and
whoever, by means of criminal intimidation as defined in this code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
Ingredients
I have broken the section into two parts for the sake of better understanding.
Part I
1. The offender must kidnap or abduct any woman (the victim).
2. Such kidnapping or abduction must be for the purpose of compelling the victim to marry against her will or for illicit intercourse.
3. In the case of marriage against will of the victim, the offender must kidnap or abduct:
(i) with intent that the victim may be compelled to marry any person against her will(ii) with knowledge that the victim will be compelled to marry any person against her will
4. In the case of illicit intercourse, the offender must kidnap or abduct:
(i) in order that the victim may be forced or seduced to illicit intercourse(ii) with knowledge that the victim will be forced or seduced to illicit intercourse
Part II
1. The offender must induce any woman (the victim) in any of the following ways:
(i) criminal intimidation or(ii) abuse of authority or(iii) any other method of compulsion
2. The offender, through such inducement, must make the victim to go from any place:
(i) with intent that the victim may be or(ii) with knowledge that victim will be
forced or seduced to illicit intercourse with another person.
If the ingredients mentioned either in Part I or Part II are fulfilled, there will be kidnapping, abducting or inducing woman to compel her marriage etc.
Punishment - Up to 10 years imprisonment of either description and fine.
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
- Non-Compoundable
Section 366A - Procuration of Minor Girl - Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable...
[NOTE: This Section was inserted by Act 20 of 1923]
Ingredients
The offender must induce by any means any minor girl under 18 years of age:
(i) to go from any place or(ii) to do any act
(a) with intent that such girl may be, or(b) knowing that it is likely that she will be
forced or seduced to illicit intercourse with another person.
If the above ingredients are fulfilled, there will be procuration of minor girl.
Punishment - Up to ten years imprisonment and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Court of Session
- Non-Compoundable
Section 366B - Importation of girl from foreign country - Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable...
[NOTE: This Section was inserted by Act 20 of 1923]
Ingredients
1. The offender must import into India any girl under the age of 21 years from:
(i) any country outside India or(ii) from the State of Jammu and Kashmir
2. Such importation must be made by the offender:
(i) with intent that the girl may be or(ii) with knowledge that she will be
forced or seduced to illicit intercourse with another person.
3. If the above ingredients are satisfied, there will be importation of girl from foreign country.
Punishment - Up to ten years imprisonment and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by a Court of Session
- Non-Compoundable
Important Case Law
Mohandas Suryavanshi v State of Madhya Pradesh [1999 Cr LJ 3451 (MP)] - Consent of a minor prosecutrix does not matter if she was taken to separate places for making sexual intercourse away from her lawful guardians, her name as different in FIR does not matter as it was her pet name, under such circumstances accused is guilty of kidnapping and raping minor for days long.
Section 367 - Kidnapping or abducting in order to subject person to grievous hurt, slavery etc. - Whoever kidnaps or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of shall be punished...
Ingredients
1. The offender must kidnap or abduct the victim.
2. Such kidnapping or abduction must be in order that the victim:
(i) may be subjected to or(ii) may be disposed of in such a manner that he is put in danger of being subjected to or(iii) with knowledge that the victim will be disposed of or subjected to
(a) grievous hurt or(b) slavery or(c) unnatural lust of any person
3. If the above ingredients are fulfilled, there will be kidnapping or abducting in order to subject person to grievous hurt, slavery etc.
Punishment - Up to ten years imprisonment of either description and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Court of Session
- Non-Compoundable
Section 368 - Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge or for the same purpose as that with or for which he conceals or detains such person in confinement.
Ingredients
1. The offender must wrongfully conceal or confine a victim of kidnapping or abduction.
2. If he does so, he shall be punished in the same manner as if he had kidnapped or abducted the victim:
(i) with the same intention or(ii) with the same knowledge or(iii) for the same purpose
as that with or for which he conceals or confines the victim.
Punishment - Same as punishment for kidnapping or abduction i.e. up to seven years imprisonment of either description and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by court by which kidnapping or abduction is triable
- Non-compoundable
Section 369 - Kidnapping or abducting child under ten years with intent to steal from its person - Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished...
Ingredients
1. The offender must kidnap or abduct the victim.
2. The victim must be a child under ten years of age.
3. The offender must kidnap or abduct the victim with the intention of dishonestly taking any movable property from the person of such child.
4. If the above ingredients are satisfied, there will be kidnapping or abducting of child under ten years of age with intent to steal from its person.
Punishment - Up to seven years imprisonment of either description and fine.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Magistrate of the First Class
- Non-Compoundable
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