Jus Rerum 2020-10-16: 8 Min


Author: Suhani Gupta

Student of University of Petroleum and Energy Studies, School of Law

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In India, there are increasing cases of Kidnapping reported in the police station. Generally, the Kidnapping is done to ask for the monetary ransom, but nowadays, it is prevalent that the crime constitutes of both Kidnapping and Rape. Such kinds of cases in society raise the question of the country's people's liberty and freedom. To control the offenses, the Indian Penal Code,1860, has made Kidnapping a punishable crime against the Human Body.

Legal Provision:

Section 359 of the Indian Penal Code, 1860 states that Kidnapping is of two kinds: Taking away a person from India or without the consent of the lawful guardian of that person called Kidnap from legal guardianship.  

Kidnapping from India: If any person is taken outside the territory of India, without the person's consent or without the consent of someone who is the legal guardian of that person, then the offense is said to be committed under Section 360.

Kidnapping from Law Guardianship: If any minor is enticed or taken away without the Lawful Guardian, including the person of Unsound Mind, then the offense of Kidnapping from Lawful Guardianship is said to be committed under the Section 361 of the Indian Penal Code,1860. This Section imposes an exception in the following two cases:

  1. If the person is empowered with the lawful custody of the child;

  2. If he is the father of a misbegotten child.

Case Note: In Smt. Suman and another v. State of Uttar Pradesh, 

Facts: A 17-year-old minor girl goes out of the legitimate gatekeeper and starts living in her boyfriend's home; without the allure of the boyfriend.

Held: The court held that girl knew the consequences of her actions and is mature enough to apply the reasoning behind her actions and has not been subject to any enticement by the boyfriend; she went away on of her own will, subsequently, in such cases section 361 of Indian Penal Code,1860 won't make a difference.

Note 1: The meaning of minor under this section can be said as:

  1. Any boy under the age of eighteen years;

  2. Any girl under the age of sixteen years.

Note 2: In the case of Manipur, the girl under the age of sixteen years will be considered as minor to constitute the offense of Kidnapping from Lawful Guardianship.  

Case note: State of Haryana v. Raja Ram[1]

Facts: 'J' endeavored to tempt the prosecutrix, a little youngster of 14 years, to come and live with him. The little youngster's father denied 'J' from heading off to his home, and in like manner, 'J' started sending her messages through the respondent. At some point, the respondent went to the girl and requested that he come at midnight and take her to J. That night, the respondent took her to 'J.'

Issue: Is the respondent guilty of Kidnapping? 

Judgment: Section 361 is to protect the minor from being tempted for inappropriate purposes and ensure the rights and benefits of guardians having their custody.  The consent of a girl is irrelevant, and legal guardian consent is pertinent to decide on the case.' Taking' as referenced in the Section isn't just through extortion or power but also the accused's inducement. For this situation, the respondent was held liable under section 361 as it was the respondent's activity, which convinced the prosecutrix from leaving her dad's custody.

Case note: Biswanath Mallick v. the State of Orissa[2]  

Facts: Kalyani had been abducted by the applicant Biswant Mallick when she had gone out around 12 PM. He initially took her to Cuttack, at that point to Bhubaneshwar lastly to Jeypore. Her dad held up a grievance at the police station. During the examination, she was found from the place of a relative of the accused. The solicitor was held liable and condemned to two years of rigorous imprisonment and a fine of Rs. 100. The accused counsel argued that the girl was mature enough to understand the consequences, and the accused cannot be held liable for Kidnapping.

Held: The court held the accused to be liable under section 361 of IPC,1860, and the essentials needed to constitute Kidnapping as an offense under 361 of IPC, 1860, are fulfilled in this case.

Before we go ahead, it is imperative to refer to a particular case set down on account of Case Note: Chandrakala Menon and another v. Vipin Menon.[3]

Facts: The appealing party Chandrakala was married to Vipin Menon. The two of them were settled in the United States and were employed there. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences emerged among them, and they chose to get separated. While Vipin Menon documented his child custody application, the kid kept on living with her maternal grandparents. While the authority application was still to be settled on, Vipin Menon brought his girl with him to another state. The grandparents filed a suit against Vipin for Kidnapping.

Held: The court held that Vipin Menon was the natural caretaker of the child, and he cannot be set liable under section 361 of IPC, 1860.

Section 363: Punishment for Kidnapping:

Under Section 363 of the Indian Penal Code states down the punishment for Kidnapping done under section 360 and 361:

  1. Imprisonment prescribed up to seven years, which may be Simple Imprisonment or Rigorous Imprisonment.

  2. Fine imposed on the accused.

Note: As indicated by Section 369 of the Indian Penal Code, an individual who grabs a child below ten years to take any versatile property from him/her will be punished with detainment for as long as 7 years and fine.


Kidnapping infringes the fundamental right to life and freedom of an individual, as encapsulated by Article 14 of the Indian Constitution. With the consistent increment in the number of survivors of these deplorable violations, the need to forestall seizing and stealing instances has gotten especially significant, incredibly when it is accomplished for a constrained poor person, mutilating, and sexual intercourse. 

To fight to deal with kids, co-task among the legal structures, the administration bodies, and the non-government bodies is critical. Co-task among countries ought to likewise be developed to counter this marvel by consistency in action reformatory courses. This consistency can be refined through the underwriting of worldwide instruments and public usage of these compassionate global instruments.

End Notes

1. AIR 1973 SC 819

2. (1995) Cr LJ 1416

3. (1993) 2 SCC 6


Websites Referred:

  1. Lexlife India, Criminal law: Kidnapping and abduction, LEXLIFE.IN (MAY 31, 2020), https://lexlife.in/2020/05/31/criminal-law-kidnapping-and-abduction/

  2. Team @Law Times Journal, Kidnapping and its punishment, LAWTIMESJOURNAL.IN ( March 31, 2019), http://lawtimesjournal.in/kidnapping-and-its-punishment/#:~:text=As%20per%20Section%20363%2C,for%20both%20fine%20and%20imprisonment.

  3. Mariya Paliwala, Kidnapping and Abduction: Sections 359 to 374 under IPC, 1860, BLOG.IPLEADERS.IN (January 18, 2020), https://blog.ipleaders.in/kidnapping-and-abduction-sections-359-to-374-under-ipc-1860/


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