Beruflich Dokumente
Kultur Dokumente
CRIMINAL LAW
FACULTY OF LAW
JAMIA MILLIA ISLAMIA
SUBMITTED BY:
Najaf Hussain
B. A. LL.B. (Hons.)
Class: 2nd yr
SUBMITTED TO:
Dr. Samia Khan
2. Kidnapping
3. Abduction
6. Conclusion
7. Bibliography
KIDNAPPING, ABDUCTION AND DIFFERENCE BETWEEN
KIDNAPPING & ABDUCTION DISCUSSED WITH RECENT
CASE LAWS AND STATISTICS
1. INTRODUCTION
In the terminology of the common law in many jurisdictions
(according to Black’s Law Dictionary), the crime of kidnapping
is labeled abduction when the victim is a woman. In modern
usage, kidnapping or abduction of a child is often called child
stealing, particularly when done not to collect a ransom, but
rather with the intention of keeping the child permanently (often
in a case where the child’s parents are divorced or legally
separated, whereupon the parent who does not have legal
custody will commit the act; then also known as “child
napping”). The word “kidnapping” was originally “kid nabbing”,
in other words slang for “child stealing”, but is no longer
restricted to the case of a child victim.1
Chapter XVI of the Indian Penal Code - which deals with offences
affecting human development, covers Kidnapping and Abduction.
Kidnapping from India
(c) Ingredients -
(i) To Convey any person
(ii) Beyond the limits of India
1
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt,
(iii) Without the consent of that person or his/her
guardian
2. KIDNAPPING
Meaning of kidnapping in the local language include the
abduction as synonym but the real difference in the
understanding is following:
2.1 Section 359- Kidnapping: Kidnapping is of two kinds:
kidnapping from India, and kidnapping from lawful
guardianship.
The literal meaning of kidnapping is child stealing.
The draftsmen of the code said:
“the crime of kidnapping consists, according to our definition of
it, in conveying a person without his consent or the consent of
some person legally authorized to consent on his behalf, or with
such consent obtained by deception, out of the protection of the
law, or of those whom the law has appointed his guardians.”
4
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt.,
“This offence may be committed on a child by removing that
child out of the keeping of its lawful guardian or guardians. On a
grown-up man it can be committed only by conveying him
beyond the limits of the Company’s territories, or by receiving
him on board of a ship for that purpose.”
8
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.3.
9
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 649.
guardians having the lawful charge or custody of minors or
insane persons.
Ingredients: This section has four main essentials10:
1. Taking or enticing away a minor person or a person of
unsound mind.
2. Such minor must be under the age of sixteen years, if male,
or under the age of eighteen years, if a female.
3. The taking away or enticing must be out of the keeping of
the lawful guardian of such minor or person of unsound
mind.
4. Such enticing away must be without the consent of the
lawful guardian.
16
2004 Cr.L.J. 595 SC
17
Ganesh, (1909) 31 All 448
18
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 651
own will and married a man, section 363 or 366 was not
attracted. 19
Where in a case of kidnapping the girl deposed that
she had gone with the accused voluntarily, his conviction u/s 363
was set aside.20
3. ABDUCTION
Force in Section 362 means actual force and not merely a show
or threat of force. Deceitful means signifies anything intended
to mislead another. It includes inducement and its scope is very
19
Oroos Fatima v Sr. Supdt of Police, Aligarh, 1993 CrLJ 1 (All)
20
Bhajan Lal v. State of U.P, 1996 CrLJ 460 (All)
21
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 657
wide. The intention of the accused, one may say, is a gravamen
of the charge.
22
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 658
23
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd Edition, 2006, p. 529
servitude, or sexual exploitation. An estimated 50,000 persons
are trafficked each year to the United States. Trafficking is now
considered the third largest source of profits for organized
crime, behind only drugs and guns, generating billions of dollars
annually.
26
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc
27
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 660
nothing to connect them with the murder, there was evidence of
the body being destroyed by them, they were convicted not of
murder but only under this section and s. 201 for destroying
evidence.28 In another case the two accused and the third person
were seen disappearing together. They had drinks and moved
away. The one who did not return home, his moustache, torn
kurta and a few drops of blood were found by the side of a
swollen river. Whether he was pushed, or he slipped could not
be known. His companions were not convicted under this
section.29 Where the accused persons, on false pretext of
repaying the money to the deceased, induced him to accompany
them to a distant place and after killing him, threw the body in a
private ravine, their conviction under s. 364 along with sections
300 and 201 was upheld.30
33
Sacha Singh v. State of Punjab, 2001 Cr LJ 1734 (SC).
34
Netra Pal v. State (NCT) of Delhi, 2001 Cr LJ 1669 (Del)
35
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 661.
wrongfully. Holding a person to ransom by his abductors is an
offence under this section. 36
There was ample evidence to show that the victim was taken
away under deceit and then sold to a brothel house. She was not
a minor at the time of the incident. Therefore, the accused could
not be convicted under S. 366 or 372. They could be convicted
under S.365.38
5.5 Section 366- Kidnapping, abducting or inducing
woman to compel her marriage, etc: Where a woman has no
intention of marriage or lawful intercourse when kidnapped, this
section applies.39
Ingredients: this section requires:
36
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.530
37
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.
38
Shaik Ramjan v State, 1999 Cr LJ 2161.
39
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 664.
ii)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; or
iii) by means of criminal intimidation or otherwise by
inducing any woman to go from place with the intent
that she may be, or knowing that she will be, forced or
seduced to illicit intercourse.40
It is immaterial whether the woman kidnapped is a married
woman or not.
Ingredients:
This section requires two things: 1. inducing a girl under
eighteen years to go from any place to do an act, 2. intention
or knowledge that such girl will be forced or seduced to illicit
intercourse with a person.
An offence under this section is one of inducement with a
particular object, and when after the inducement the offenders
40
Ibid.
41
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 667.
offer the girl to several persons a fresh offence is not committed
at every fresh offer for sale.
importing the girl first into an Indian State. 42 After the coming
into force of the Constitution of India this section was amended
to bring it in accord with the changed circumstances. 43
42
Gazette of India, dated February 10, 1923, Part V, p.79
43
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.536
term which may extend to ten years, and shall also be liable to
fine.
This section does not apply to the principal offender but to those
persons who assist him in concealing any person who has been
kidnapped. A kidnapper cannot be convicted under this section. 44
Ingredients of this section:
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.
47
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
48
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
CONCLUSION
Essential to combating trafficking of children is the co-operation
between the legal systems, the government bodies and the non-
government bodies around the globe. The passing of deterrent
laws for the trafficker, as opposed to the victim is a step towards
reducing the occurrence of trafficking in children, however one
must bear in mind that the criminal mind will always find its
ways to circumvent the laws passed.
BOOKS REFERRED:
1. Gandhi B.M, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd
Edition, 2006.
3. Singh K.K and Bagga R., “Indian Penal Code”, The Law Book Company,
Edition. 2006.
ONLINE SOURCES:
1. http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-
Ranendra%20Man.ppt.
2. http://www.indiatogether.org/2006/oct/law-immoral.htm.