KIDNAPPING AND ABDUCTION UNDER PENAL CODE

by Dr. Aspalella A. Rahman

INTRODUCTION
Offences that affect a persons freedom of movement

include: i. Wrongful restraint; ii. Wrongful confinement; iii. Kidnapping and abduction; and iv. Hostage- taking

Wrongful restraint
s339-whoever voluntarily obstructs any person from

proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person. s341- punishment for wrongful restrain i.e. imprisonment up to one month OR max fine RM1000 OR both.

Wrongful Confinement
s340- whoever wrongfully restrains any person in such

a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said to wrongfully confine that person. s342- punishment for wrongful confinement i.e. imprisonment up to one year, OR fine max RM2000 OR both. See PR v Isa bin Johnit [1994] 3 MLJ 218

KIDNAPPING
Penal Code provides two forms of kidnapping:

s.360- Kidnapping from Malaysia; and ii. s.361 -Kidnapping from lawful guardianship These sections are not exhaustive as there may be cases in which the two kinds overlap each other.
i.

s.363- Punishment for kidnapping i.e. max 7 years imprisonment AND fine.

KIDNAPPING ACT 1961

provide for the detection and punishment of the

offences of abduction, wrongful restraint and wrongful confinement for ransom and other related offences and for matters incidental thereto.

Kidnap from Malaysia

s360-whoever conveys any person beyond the limits of

Malaysia without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from Malaysia. The essence of the offence is the conveyance of the victim beyond the territory of Malaysia without the victims consent or of a person legally authorised to consent on his behalf, where a person is unable to give a valid consent.
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Cont
See s90 PC- circumstances when a consent can be an

improper consent. i.e. when the consent is given under fear or misconception and consent of a child or person of unsound mind.

Case;
Peraiswami Kangani [1910]MWN 11 Cr LJ 368 The accused induced some women to leave India for Ceylon on the promise that they were to be married to his sons. H/e after arriving in Ceylon, they were made to work as labourers on his tea plantations. Held: The women were taken to Ceylon without their consent and that they were kindapped from India.

Kidnap from lawful guardianship

s361- whoever takes or entices any minor under 14

years of age if a male, or under 16 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. lawful guardian includes any person lawfully entrusted with the care or custody of such minor or other person. i.e. no need formal entrustment. May include the mother/ adopted family.
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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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

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Cont
S361 is the offence of taking or enticing of a minor or a

mentally incapacitated person out of the keeping of his or her lawful guardian. The essence of the offence is the taking or enticing of the victim out of the keeping of the lawful guardian. It must be shown that the accused took some actual step, by persuasion or otherwise to cause the person to leave home. taking means a physical taking.
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Jagan Nath [1914] AIR 126

A father had sent his daughter to live with another married daughter of his, who then, without the fathers consent, had her married to an inmate of the house. Held: An offence of kidnap had not been committed as there was no taking her out of the keeping of the lawful guardian as she had not left the house of the married daughter, where she was living with her fathers consent.

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Cont
Acc to Ratanlal & Dirajlal, if a minor suggests to the

accused to go away with her and the acsused only takes the passive part of yielding to the suggestion, it is not taking.

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Cont
entice refers to the idea of inducement by exciting

hope or desires in the other. The offence of kidnapping from lawful guardian is complete when the minor or incapacitated person is taken out of the keeping of the lawful guardian. The distance of the taking is not material. Chhajju Rams case Held: a taking occurs even if the accused takes a minor without the consent of the guardian to a distance of 20-30 yards.
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Cont
The period of detention is also not material.

Timmins case

The accused took a girl away not with a view to keeping her permanently away from home but in order to gratify his passion for three days and then, allowed her to return home. Held: Guilty of the offence.

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Neelakandan v PP [1956] MLJ 206

A 15 yrs old girl cheated her mother and went out with

his boyfriend and had sex with him. The parents had not consented to her to be out with the boyfriend. The accused was convicted under s363 PC and he appealed. Held: The offence was committed if the taking was without the consent of the lawful guardian. The consent of the girl was immaterial and it was not necessary that the accused should make use of force or fraud.

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Cont
It is not a defence that the accused did not know of the

victims age or that from the appearance, the accused thought that the victim was of greater age.

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Abduction
s362- whoever by force compels or by any deceitful means

induces any person to go from any place is said to abduct that person. by force compel indicate the actual use of certain physical force in compelling the victim to move from one place to another place against the victims will. The prosecution has to prove that the taking away of the child was by compulsion. by deceitful means induce indicate some allurement or inducement done to lead a person to some direction in which he would not otherwise have gone but for the allurement or inducement. The offence of abduction is not a substantive offence per se.
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Aggravated Offences
Where kidnapping or abduction with the following

intention. 1. s364- kidnapping or abduction in order to murder. Punish with death or max 30 yrs imprisonment AND whipping.
2. s365- kidnapping or abduction with intent secretly or wrongfully to confine a person. Punish with max 7 yrs imprisonment AND fine. Case: PR v Wong Shew Choong [2008] 4 AMR 717
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Cont
s366- kidnapping or abduction of a woman to compel

marriage, illicit intercourse or a life of prostitution. Punish with max 10 yrs imprisonment AND fine. Case: Wahab bin Osman v PR [2002] 7 MLJ 48 Held: the prosecution had to prove: 1) The A had kidnapped or abducted the woman; and 2) The kidnapping or abduction was done with the intention to compel the woman to marry the A. Once the intention can be proven, the offence was completed.
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Cont
s367- kidnapping or abduction in order to subject a

person to grievous hurt, slavery or unnatural lust. Punish with max 10 yrs imprisonment AND fine.

s369 - kidnapping or abducting a child under 10 yrs

old with intent to steal moveable property from the person of such child. Punish with max 7 yrs imprisonment AND fine.

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