Section 360 says, “Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of the person, is said to kidnap that person from India” (Seven years and fine).
The essentials of this section are, therefore, the conveying of any person beyond the limits of India and such conveying must be without the consent of that person. It is apparent from the above that the offence with regard to kidnapping from India may be committed on a grown up person or a minor by conveying him or her beyond the limits of India.
Kidnapping from lawful guardianship:
Section 361 says, “Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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.” (7 years and fine).
The essential ingredients of the offence of kidnapping from lawful guardianship are: (1) taking or enticing away a minor or a person of unsound mind; (2) such minor must be under 16 years of age if a male, or under 18 years of age if a female; (3) such minor or person of unsound mind must be in the keeping of a lawful guardian; (4) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and (5) such taking or enticing must be without the consent of such guardian.
The object of Sec. 361, I.P.C. seems as much to protect the minor children from being used for improper purposes as to protect the rights and privileges of guardians having the lawful charge of custody of their minor wards.
The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in the section, out of the keeping of the lawful guardian without the consent of guardian.
The words “takes or entices any minor out of the keeping of the lawful guarding of such minor” in the section are significant.
The use of words “keeping” in the context connotes the idea of charge, protection, maintenance and control; further the guardian’s charge and control appears to be compatible with the independence of action movement to the minor, the guardian’s protection and control of the minor being available whenever necessity arises.
On a plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial, it is only the guardian’s consent which takes the case out of its purview.
Nor it is necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the lawful guardian would be sufficient to attract the section. [State of Haryana v. Raja Ram, 1973(11) S.C.J. 124],
(b) Taking or enticing of the minor out of the keeping of the lawful guardian must be without his consent. The consent of the minor is immaterial. Consent given by the guardian after the commission of the offence would be of no avail. If a man by false and fraudulent representation induces the parent of a girl to allow him to take her away, such taking will amount to kidnapping.
(c) The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship; it is not an offence so long as the minor is kept out of such guardianship.
The word “taken” as used in Section 361, I.P.C., does not mean a continuing or continuous act. The “taking” which constitutes the offence is completed as soon as the girl is removed from the keeping of the lawful guardian.
(d) C has not committed an offence of kidnapping from lawful guardianship under Section 361 of the Code because he cannot be said to have been taken or enticed away A out of the keeping of her lawful guardian. In point of fact, C took the girl away from the custody of person who was not her lawful guardian, viz., B.
Kidnapping from India Kidnapping from lawful
1. A person of any age can be kidnapped from India.
1. Only a minor (less than 16 years if a male and 18 years if a female) and a person of unsound mind can be kidnapped.
2. Want of consent of the 2. Consent of the person kidnapped or legally au- kidnapped is immaterial, thorized to consent is essential.
3. A continuing offence and can be abetted.
3. Not a continuing offence and cannot be abetted.