Introduction
In simple terms, the act of kidnapping is defined as abducting someone and holding them confined. The word kidnapping has been originally derived from ‘kid’ meaning ‘child’ and ‘napping’ means to ‘steal’. Thus, kidnapping literally means child stealing. However, Kidnapping under the Code is not limited to child stealing only. It has been given a wider dimension by carrying away any human being of 16 years of age or less in case of males and 18 years of age or less if in case of females. Sections 359 to 369 of the Indian Penal Code, 1860 deals with kidnapping and abduction. These are punishable with a different degree of severity according to the nature and gravity of the offence.
Kinds of Kidnapping
Section 359 describes kidnapping in two ways: 1.Kidnapping from IndiaIf any person takes the other person beyond the limits of India without the consent of that person or any person who is legally authorized to give consent on behalf of that person, is said to kidnap that person from India. This is mentioned in Section 360. The offence under this section may be committed in respect of any person, male or female, major or minor and irrespective of his nationality.
2. Kidnapping from Lawful Guardianship If any person takes any minor of: a. 16 years of age or less in case of a male; b. 18 years of age or less if in the case of a female; c. any person of unsound mind from the custody and without the consent of the lawful guardian is said to kidnap that minor from the lawful guardianship. A female child may be married as well as unmarried. This is described in Section 361.A lawful guardian is different from that of the legal guardian. A legal guardian is a guardian appointed by law or whose appointment is in harmony with the general law of the land. A lawful guardian is the one whose custody is sanctioned by law.
When a minor has attained the age of majority and leaves the lawful custody of his or her guardian, then the accused will not be charged with the offence of kidnapping. The role of consent also plays an important role in the offence of kidnapping.
Abduction
In common language, abduction means carrying away a person by fraud or force. As per section 362, if any person compels or by any dishonest means induces, any person to go from any place is said to abduct that person. When there is no force or dishonest intention applied to the person abducted, there can be no offence of abduction.
Punishment
Section 363 states the punishment for kidnapping. If anyone kidnaps any person from India or from lawful guardianship, shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Abduction alone is not punishable. When it is committed with the certain intention to commit another offence as mentioned in sections 363A, 364, 364A to 396 of IPC, then it becomes punishable as an offence. For e.g. kidnapping or abducting with the intention to secretly and wrongfully confining a person is punishable under section 365. Sections 363A to 369 deals with the aggravated forms of kidnapping and abduction.