Explain briefly the concept of Kidnapping given under Indian Penal Code, 1860.
Nature’s best ever gift could be to us life itself and same becomes bane if it is just to spend in a cage rather than living freely. To live a free life is not only a fundamental right given by the State but it is also a natural right as this right has been given by the nature. So, no person has right to compel another person to go to a particular place or to restrain another person without his consent except the procedure established by law.
According to our Criminal Legal System, if any person restrains another person or takes that person to somewhere else without the consent of that particular person or if that person is minor than without the consent of his guardian, then there is one provision in law to punish the wrongdoer and that is Kidnapping.
Kidnapping is such a socio- economic offence which is not only committed against a person to whom the kidnapper kidnaps but it is simultaneously committed against the guardian of a person under whose custody that person has been kidnapped. It not only affects the rights of person who has been kidnapped but it also affects the rights of guardian under whose custody that person has been kidnapped. That is why, to protect the rights of guardian as well as of minor, the legislature has enacted this law.
Section 359 of Indian Penal Code, 1860, deals with the provisions of Kidnapping. According to this section, Kidnapping is basically of two types: –
• Kidnapping from India
• Kidnapping from lawful guardian
Section 360 of Indian Penal Code, 1860, deals with the provisions of kidnapping from India. According to this section, if any person conveys another person out of India without the consent of latter person or if that person is not capable to give consent than without taking the consent of that person who is legally entitled to give consent on behalf of latter person, then in such a situation, it will be considered that the former person has committed the offence under this section by kidnapping a person from India.
Whereas, section 361 of Indian Penal Code, 1860, deals with the provisions of kidnapping from lawful guardian. According to section 361 of Indian Penal Code, 1860, if any person takes any child out of the custody of his/her guardian without the consent of that guardian then that person will be held liable for having committed the offence of Kidnapping from lawful guardian
According to this section, to hold an offender liable it is necessary to prove that the person to whom he has kidnapped is under the age of 16 years if he is male or under the age of 18 years if she is female.
In the leading case of Gurcharan Singh vs. State (SC 1972), the Hon’ble court stated that if the accused induced a minor girl to go with him by threatening her by pointing a pistol at her, then the act of accused amounted to abduction and not kidnapping because the element of compulsion by force is present in the case.
According to the provisions of Indian Penal Code, 1860, to commit the offence of kidnapping, it is necessary that the person to whom the accused has kidnapped must be under the possession of his/her guardian. It does not matter whether the minor was under direct possession or constructive possession. Here direct possession means that minor is with the guardian. On the other hand, constructive possession means guardian knows that where the ward is. In this case, guardian has no direct control over the minor.
According to the provisions of Indian Penal Code, 1860, it is irrelevant that whether the minor was under direct possession or constructive possession of his guardian. If he was under the control of guardian at the time of kidnapping, then only the accused can be held liable for having committed the offence of kidnapping.
But if the minor to whom the accused has kidnapped was not in the possession of guardian at the time of kidnapping i.e., neither in direct possession nor in constructive possession and the guardian did not know the location of minor, then in such a case, the accused cannot be held liable for having committed the offence of kidnapping.
In the leading case of Vardarajan vs. State of Madras (SC 1965), the Hon’ble court held that if the minor went out of the custody of guardian himself, so in this case, the person with whom the minor has gone cannot be held liable for having committed the offence of kidnapping.
According to the provisions of Indian Penal Code, 1860, kidnapping is a socio- economic offence and there is no need to prove the mens rea which is one of the main elements of every crime. In the case of kidnapping, the prosecution has to prove the actus reus only to secure the punishment to the offender and here actus reus is taking the minor out of the custody of his guardian without his consent.