What is Kidnapping?
Kidnapping in its most common meaning is the action of taking away a person against their will to achieve an ill-intentioned objective. Kidnapping is of two types as per Section 359-
- Kidnapping from India
- Kidnapping from lawful guardianship
Elements of Kidnapping
These certain elements need to be fulfilled if the offence of kidnapping has to be established which are as follows-
- Taking or Enticing- the word ‘taking’ simply means to remove the minor/person outside the domain of lawful guardian’s reach, this does not always involve the use of force or coercion while the word ‘entice’ means to lure the minor by way of enticement by luring through the form of hope and excitement so the minor himself moves towards the kidnapper.
- The person must be either- a minor ( under 16 years in the case of a boy and 18 years in the case of a girl)
– A person of unsound mind ( age no bar)
- The said person must be taken outside the custody of the lawful guardian.
Section 361 also mentions the 2 circumstances in which an act would not be constituted as kidnapping both of which contain the element of ‘good faith-
- When a person in ‘good faith believes himself to be the father of the illegitimate child, or
- When a person in ‘good faith’ considers himself to be in the lawful custody of the child unless the act committed is for an unlawful or immoral purpose.
Punishment for Kidnapping
Section 363 of the Indian Penal Code contains the provision for the kidnapping penalty. It states that whoever kidnaps any person from India or a legal guardianship must be punished with either fine or either type of imprisonment, or both, for a time that may not exceed seven years.
Difference between Kidnapping and Abduction
Many times people make the common mistake of confusing kidnapping with abduction which although do share some similarities have their share of differences.
While Kidnapping is a specific offence which is cognizable and bailable under the IPC, abduction is a sort of appendage used to facilitate the commission of other offences. The IPC’s Section 362 defines abduction. This section just defines the term “abduction,” which is used in some of the subsequent punitive laws. The law does not recognise the crime of abduction, but it does recognise the crime of abduction with a specified purpose. Fraud or force must be used.
Aggravating forms of Kidnapping
1. Kidnapping to beg
Section 363 A of IPC refers to the crime of kidnapping or mutilating a juvenile for begging. According to it:
To use a juvenile in begging, someone who kidnaps the child or gains control of him/her without being the child’s legal guardian is guilty of this crime. This is punishable by up to ten years in jail and a fine under Section 363A of the Indian Penal Code. To maim is to hurt or harm a body part to the point of irreversible harm. According to this clause, a person who maims a juvenile so that the minor might be used as a beggar is subject to a life sentence in prison and a fine. If someone uses a juvenile to beg when that person is not the youngster’s legal guardian, the court will think that person abducted the minor. The onus of proof would lie with the defendant to establish his innocence.
2. Kidnapping for Murdering
As seen in Section 364 IPC The punishment for kidnapping or abducting someone with the knowledge or intent that they will be killed or put at risk of being killed is life in prison or harsh imprisonment for a duration of up to 10 years, as well as a fine.
3. Kidnapping for purpose of compelling a woman to marriage
Section 366 IPC punishes anybody who kidnaps or takes a woman with the knowledge that she would be forced into marriage or with the purpose to do so. Additionally, it punishes anybody who kidnaps or abducts someone with the intent to compel them into illicit relations or who knows they would be forced into such relations as a result of their kidnapping or abduction. This section also suggests penalties include a fine and a maximum 10-year sentence in jail.
4. Kidnapping for purpose of wrongfully confining a person-
Section 365 provides for a person who kidnaps or abducts someone with the goal to jail them unjustly and secretly to be punished with up to seven years in prison and a fine.