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DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,


LUCKNOW
2017-18

INDIAN PENAL CODE

FINAL DRAFT
ON

KIDNAPPING

SUBMITTED TO: SUBMITTED BY:

MR. MALAY PANDEY AAKASH KUMAR

ASST PROFESSOR OF LAW ROLL NO 160101002

RMLNLU 4TH SEMESTER

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ACKNOWLEDGMENT

This project has been completed under the expert guidance and tutorship of Assistant Prof. Mr.
Malay Pandey. I remain grateful to him for the entire experience and knowledge gained on
account of having duly completed my assignment. I have hugely benefited from his timely
guidance and technical support. The Madhu Limaye Library, RMLNLU has contributed to a
major part of the project, as has the world wide web, without which, the project would have
remained grossly unwholesome.

I am also grateful for the support and consideration extended by my parents and friends. The
hands-on approach to drafting and its implications herewith, has by itself been of extreme
importance in furthering my knowledge and understanding of law relating to pleadings and
conveyances and its variations herewith.

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INTRODUCTION

JUDGE Simon Goldstein said, “The crime of kidnap is, after murder, the vilest and foulest crime
known to criminal law.”1

Kidnapping is an assault on and encroachment of the personal liberty of a human being. It


comprises of the carrying away or taking of one individual by force or by fraud, without taking
the consent of the person so taken and without any lawful excuse. It is sometimes also described
as an aggravated form of false imprisonment. False imprisonment is also a common law offence
and includes every wrongful deprivation of a person’s freedom. Kidnapping is viewed as the
more serious offence among the two, but both carry unlimited powers of imprisonment and are
trial can be done only on indictment. This research paper will firstly deal with a concise account
of the historical background of this offense and also of the current cases. Each essential
ingredient will be elaborated and interpreted as each of these topics considers two central issues:
its place and capacity inside the definition (setting) and its significance which is the substance.
Then the blame component of the offense will be taken into consideration and pros and cons of
the fault element will be elaborated in this research paper.

MEANING AND HISTORY

The kidnapping word have been originated from two word ‘kid’ and ‘napping’, where kid means
child and napping means to take away or steal2. So, the word kidnapping means child stealing. In
Seventeenth century the word kidnapper was meant to signify who stole child and others to
provide servants and labourers for American plantation.3

Kidnapping did not rise as a different offense from that of false detainment until the 1680s. For
an extensive time, the legitimate meaning of kidnapping appears to have been limited to sending
individuals to another country. Amid a similar time, kidnapping was perceived as a different
offense. East, writing in 1803, was the first to propose that there is a solitary offense of
kidnapping in a more extensive sense, which covers all occasions of taking and diverting of

1
https://marcus-peterson6.wikispaces.com/Kidnapping+Research+Paper.
2
http://shodhganga.inflibnet.ac.in/bitstream/10603/33145/4/chapter%204.pdf.
3
Law Commission of India, 42nd Report on IPC, 1971, P. 266.

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emitting, and that this single offense is an irritated type of false detainment. In his A Treatise of
the Pleas of the Crown, he gives both the more extensive and smaller definition.

In the expressions of Sir Hari Singh Gaur: At customary law the term kidnapping comprises of
taking and carrying away, or emitting any people, regardless of whether in a similar nation, or by
sending him away from his own nation into some other, or to parts past the oceans whereby he is
denied of the benevolent help of the laws to reclaim from such captivity. The offense of
kidnapping is an aggravated type of wrongful imprisonment and is in this way, an offense in
which every one of the components of that offense are fundamentally present. It is to be that as it
may, repression of such a serious offense, to the point that the code regards it as particular
offense. However, kidnapping does exclude the offense of wrongful restriction or keeping in
control of a kidnapped individual.

MAGNITUDE OF THE CRIME

The rate of kidnapping also increased in 2015 to 59,277 cases from 57,311 in 2014.4 Kidnapping
during circumstances such as the present, is a typical phenomenon everywhere throughout the
globe, a few nations are even called the “world capital of kidnapping”. In 2007, this title had a
place with Iraq, where about in excess of 1,600 foreigners were stolen. In 2004, same was
received by Mexico and Colombia was given the title in 2001. As indicated by the FBI and The
U.S. Branch of Justice 800,000 Juveniles, are accounted for missing every year, and is expanding
by 10 percent yearly. Half of these children announced missing are because of 'family' kidnaps,
leaving 400,000 missing children every year. It is likewise said that 80 percent of kidnappings
are sexually motivated. That implies that out of the 400,000 kidnappings, 320,000 of them are
sexually motivated.

4
http://nationalcrimerecordsbureau.nic.in/.

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INTERPRETATION OF THE OFFENSE

The offense of kidnapping has the following essential indegrients, which are as follows:

1. Taking or carrying away a minor or a person whose mind is not sound.


2. Such minor must be less than 16 years in the event that it is a male and 18 years in the
event that it is a female.
3. The taking or carrying away must be from the lawful guardian of such minor or person
whose mind is not sound.
4. And it should be done without the consent of the guardian.

According to the interpretation the seriousness of the offense of kidnapping means the taking or
alluring of the minor under the age specified above without the consent of the guardian, as the
consent of the minor is immaterial. It is also not necessary that the taking or alluring must by
means of fraud or use of force. In the case of State of Haryana v. Raja Ram5 , it was held that
persuation by accused which makes eagerness with respect to minor to be removed from the
keep of lawful guardian would be adequate to fall under the area of kidnapping. According to the
present interpretation, one doesn't tempt another unless the latter attempted to complete a thing
which the person who is kidnapped would not generally do.

Enticing means while the individual captured may have left the keeping of the legal watchman
voluntarily, still the perspective that achieved that ability probably been actuated or brought
somehow by the accused.6 The two words 'take' or 'tempt' as utilized as a part of area 361 IPC are
as together with the goal that each of the two take into some degree its shading and substance
from the other. The statutory language proposes that if the minor goes out from the parents’
house totally uninfluenced by any guarantee offer or allurement radiating from the liable party
then the latter can't be considered to have committed an offense as characterized under the
section.

5
AIR 1973 SC 819.
6
Sagar Mangolipuri v. State of Gujarat, 1966 Guj. LR. 378.

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If we talk about the other important ingredient which is to keep out of a lawful guardian, then
keeping implies the care and protection which the lawful guardian gives to the minor. That
means to attract this section, the accused must do something which will bring the minor out of
the keeping of the lawful guardian. In any case, it doesn't really imply that a chid strolling in the
city out of the place of his lawful guardian and alluring away such a child would add up to
kidnapping.
Likewise, there is an unmistakable difference amongst 'taking' and 'allowing a minor to go with
someone', these two articulations are not synonymous-where the minor affirmed to have been
taken by the accused individual left her dad's protection knowing and having ability to know the
full consequences of what she was doing deliberately joins the accused - can't be said to have
removed her from the keeping of her legal guardian. Something more must be need to show for a
situation of this kind and that is some sort of instigation held out by the charged individual or a
active support by him in the development of the aim of the minor to go out of the lawful
guardian.

But it happens that sometimes the interpretation of the offense has several obscurities under the
current law which is as follows:
 Firstly, the part of deprivation of freedom in the offense, and specifically at what time it
needs to happen.
 The significance of 'taking or alluring away'.
 The connection between the necessities of force or fraud and absence of assent of the
lawful guardian.
 Also the connection amongst kidnapping and false imprisonment is not clearly defined
under current law.

If we took the interpretation of the first point mentioned above, two interpretations can be drawn.

Firstly, that the deprivation of freedom implies that there is some obstacles which might be
physical or mental to the victim's escape. In that sense, a traveler in a moving flight has lost his
or her freedom. Furthermore, second translation is that it is an encroachment of the right to go
where one picks and as indicated by this elucidation traveler does not lose their freedom as they
board onto the flight. So this remains vague.

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Now the interpretation of the second point which involves a vagueness between "take" in the
‘capture’ sense and "take" in the feeling of taking a man starting with one place then onto the
next. Each case of kidnapping has in actuality included the moving of a man starting with one
place then onto the next. A further ramifications of the words "take" and "convey" is that the
blamed must go with casualty amid the move; or rather, victim must accompany to go with the
accused. Essentially sending the victim starting with one place then onto the next isn't suffice. In
this point additionally there is vagueness.

The third point is relationship between taking “by force or fraud” and “without consent”. Here
the question is that if the consent is given by force or fraud, will that amounts to kidnapping?
Because according to the definition of consent as mentioned under section 90 of the IPC, any
consent given due to fraud or force will not come under the meaning of consent.

According to a Law Commission Report7, where it tried to make the difference between
kidnapping and false imprisonment and stated that existing customary law offences of
kidnapping and false imprisonment be supplanted with two new statutory offences. False
imprisonment will be supplanted by the statutory offence of unlawful detention. Kidnapping will
turn into a a statutory offense in view of the risk of using force or move the victim. based on the
use or threat of force to take or move the victim8.

The new offences will catch the scope of criminal conduct secured by the current law.
Characterized in clear, current dialect, they will elucidate the difference amongst kidnapping and
false imprisonment, and make both less difficult to prosecute. The Report temporarily suggested
that kidnapping and false imprisonment ought to be supplanted by at least one offenses set out in
statue.

7
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/376859/44612_HC_797_Law_Com
mission_355_accessible.pdf.
8
http://www.lawcom.gov.uk/wp-content/uploads/2015/03/lc355_kidnapping.pdf.

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CONCLUSIONS AND SUGGESTIONS

It is reasoned that the IPC has made kidnapping culpable with changing level of seriousness as
indicated by the nature and gravity of the offense. The hidden question of establishing these
arrangements is to secure the individual freedom of subjects, to give lawful insurance to
offspring of youthful age from being captured for despicable purposes and to protect the
privileges of guardians and gatekeepers over their wards for custody or upbringing.

The Fifth Law Commission has suggested some reforms in the law relating to kidnapping like
that the existing punishment provided for kidnapping should be scaled down9, and sections
dealing with definition of kidnapping from lawful guardianship should be revised, A new section
(s 364 A) should be inserted in the IPC to criminalize kidnapping for ransom10 and this proposal
was, ostensibly, recommended to battle the expanding occurrences of kidnapping for demanding
ransom. In any case, these provisions couldn't get the status of law as the Bill got lapsed because
of the dissolution of the Lok Sabha in 1979.

So, the clauses given by the Law Commission should be taken into consideration as it will make
the existing law for the offense of kidnapping more accurate and without any ambiguity. Along
with the recommendations given by the Law Commission, the obscurities which are present in
the current law of kidnapping and discussed above should also be considered as it is making the
interpretation of the offense difficult and full of ambiguity.

9
Law Commission of India, ‘Forty- Second Report: The Indian Penal Code’, Government of India, (1972), paras
16.92, 1697, 16.100, and 16.110- 16.111.
10
The proposal was ultimately carried out in 1993 by the Criminal Law (Amendment) Act 1993 and was further
amended by the Indian Penal Code (Amendment) Act 1995.

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