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Report No. 42

16.91. Kidnapping in English law.-

Derived from the word 'kid' meaning child, and 'napper', an American cant word for thief, the word 'kidnapper' originally (seventeenth century) meant one who stole children and others to provide servants and labourers for the American plantations.1 In England, however, "according to East, the most aggravated species of false imprisonment is the stealing and carrying away, or secreting of some person, sometimes called kidnapping, which is an offence at common law. Blackstone confines this offence to the case where the victim is sent into another country, and East appears to agree that this is strictly a constituent of kidnapping properly so called.

According to Russell, the offence is committed if a minor is taken away against the will of his friends or lawful guardians."2 Child-stealing, as such, is a statutory offence3 punishable with seven years' imprisonment. The offence is unlawfully, either by force or fraud, to take away or entice any child under the age of fourteen years, with intent to deprive its guardian of the possession of such child, or with intent to steal any article from the child. It appears that the common law offence of kidnapping is of small importance at the present day in England :4

1. Oxford Dictionary of English Etymology.

2. Smith and Hogan Criminal Law, 2nd Edn., p. 276.

3. Offences against the Person Act, 1861, section 56.

4. Smith and Hogan Criminal Law, 2nd Edn., p. 277.

16.92. Kidnapping to be of one kind onl.-sections 359 and 360 to be omitted.-

The Penal Code distinguishes between two kinds of kidnapping, viz., kidnapping from India and kidnapping from lawful guardianship. The first kind is defined in section 360 as conveying any person beyond the limits of India without the consent of that person or of some person authorised to consent on behalf of that person. This offence was of importance in the last century when the practice of indentured labour was common and "coolycatching" by devious methods had to be put down.

As will be seen by a comparison of the definition of kidnapping from India in section 360 with the definition of abduction in section 362, the difference between the two is very slight; where an adult is conveyed out of India without his consent, it is almost certain that he would have been compelled or induced to go from some place, i.e., "abducted". We think it is unnecessary to have the first kind of kidnapping as a special offence, and propose that both sections 359 and 360 should be omitted.

16.93. Revised definition of kidnapping.-

In order to amount to kidnapping of a minor from lawful guardianship, the age limit of the minor is fixed in section 361 at 16 for boys and 18 for girls. It was suggested that since, under clause five of section 375, it is not rape to have sexual intercourse with a girl of 16 or more with her consent, the age limit for kidnapping also should be 16 for girls as well as boys. We do not, however, think that this is a valid argument since the two offences are very different. Kidnapping being an offence against lawful guardianship, it is logical to fix the age of majority as the age limit. In fact, we see no reason why it should be 16 in the case of boys. We propose that all minors under 18, whether male or female, should be brought within the scope of the definition of kidnapping, but the punishment may be more severe where the kidnapped person is under 15.1

The explanation of the section refers to "any person lawfully entrusted" etc. These words have led to a needless controversy as to whether there has to be a formal entrustment.2 For instance, orphanages and similar charitable institutions which take charge of neglected or abandoned children may find it difficult to establish that they have been lawfully entrusted by anyone with the care or custody of a particular child. De facto guardians are clearly intended to be covered by the Explanation.3 We propose to use the words "any person who has lawful custody of" etc. in the Explanation.

Kidnapping may accordingly be re-defined as follows.-

"361. Kidnapping.- Whoever takes or entices any person who is under eighteen years of age or is of unsound mind, out of the keeping of the lawful guardian of such person, without the consent of such guardian, is said to kidnap that person.

Explanation.- In this section, the words 'lawful guardian' include any person who has lawful custody of a minor or of a person of unsound mind."

1. See para 16.93, below.

2. See discussion in State v. Harbans Singh, AIR 1954 Born 339.

3. Jangli Milan, AIR 1934 Pat 170; Saharali, AIR 1931 Cal 446.

16.94. Exception in section 361 considered and revised.-

The exception under section 361 provides for two different cases which may arise in relation to the immediate care and custody of an illegitimate child. The first is where the alleged kidnapper in good faith believed himself to be the father of the child and takes it away from the custody of its present guardian. The second exception is where there is a bona fide dispute over the custody of the illegitimate child. It will be noticed that the exception has no application in relation to legitimate children.

In England, under section 56 of the Offences against the Person Act of 1861, the mother of the child (whether legitimate or illegitimate), a person who shall have claimed any right to possession of the child, and a person who shall have claimed to be the father of the child where it is illegitimate, are all exempted from prosecution for child-stealing. While we do. not consider that the scope of the exception in section 361 should be widened to this extent, the distinction it makes between legitimate and illegitimate children is neither logical nor satisfactory.

Disputes do arise between the parents of a child who have fallen out over the custody of the child: should it be regarded as a culpable act, and a serious offence at that, for either of them to take or entice the child out of the keeping of the other? There may, in some cases (but not necessarily in all) be good justification for the father of an illegitimate child to take it out of the custody of its mother, but, equally, there could be justification for the mother of a child born in wedlock to take it out of the keeping of the father even if he is its lawful guardian.

It seems to us, therefore, that the exception should be extended to the taking of a child by either parent, and where it is illegitimate, by a person who in good faith believed himself to be its father. Bona fide claims by other persons to the lawful custody of a child, whether legitimate or illegitimate, should not, in our opinion, be sufficient to exculpate them from the offence of kidnapping.

We propose accordingly that the exception should be revised to read as follows:

"Exception.- It is not kidnapping when a minor is taken or enticed out of the keeping of his lawful guardian by either of his parents, or, where the minor is an illegitimate child, by a person who in good faith believes himself to be the father of such child, unless such act is committed for an illegal or immoral purpose."

It will be noticed that in the above re-draft, we have mentioned "illegal purpose" instead of "unlawful purpose", which are the words used in the present exception. The question what is an 'unlawful purpose' has led to controversy1 in courts because of the vagueness of the expression. As the word 'illegal' is defined in section 43, it is desirable to replace it by the more precise expression 'illegal purpose'.

1. See Khalil-ur-Rehman, AIR 1933 Rang 98; Mahindra Nath, 1934 ILR 62 Cal 629l Chowdayya, AIR 1938 Mad 656.

16.95. Section 36.-Recommendation for amendment.-

The language of section 362, which defines abduction, is defective in two respects. First, it is doubtful if it covers the act of bodily lifting and carrying away a person, when he is unconscious or asleep. Such cases do not literally fall within the words 'by force compels or by deceitful means induces.-which is the formula used in the present section. Secondly, while 'force' is mentioned, show of force is not mentioned, with the result, that some High Courts have construed the section as confined to cases where force is used.1 It appears to us that it would be useful to amend the section so as to clarify the position on the first point and widen the section on the second point,' as follows.-

"362. Abduction.- Whoever,

(a) by force or show of force compels, or by any deceitful means induces, any person to go from any place; or

(b) takes any person away from any place without the consent of that person or some person legally authorised to consent on behalf of that person, is said to abduct that person."

1. See AIR 1949 All 710.

16.96. Abduction incidental to hi-jacking.-

It was suggested that, to cover cases of hi-jacking of aircraft or other vehicles, an amendment may be made so as to punish those who indirectly cause persons to be transported to a place which is not their intended destination. The need for such amendment was emphasised on the ground that the compUlsion in such cases, at least so far as the passengers are concerned, is indirect. We are, however, of the view, that such cases could be regarded as falling within the section, notwithstanding the indirect nature of the compulsion, and no amendment is necessary.

16.97. Section 363.-

As regards section 363, we are of the view that the maximum punishment for kidnapping a person not under 15 years of age should be less severe than at present. If such kidnapping is for one of the purposes, mentioned in the succeeding sections, then the increased punishment under the relevant section will apply. The section may be revised as follows:

"363. Punishment for kidnapping.- Whoever kidnaps any person who is under fifteen years of age shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever kidnaps any person who is not under fifteen years of age shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."

1. See Khalil-ur-Rehman, AIR 1933 Rang 98; Mahindra Nath, 1934 ILR 62 Cal 629; Chowdayya, AIR 1938 Mad 656.

2. See AIR 1949 All 710.

16.98. Section 363.-amendments proposed.-

Section 363A deals with kidnapping for begging. We have examined the recommendations of the Committee appointed to inquire into this offence, as well as the papers relating to the Bill prepared by the Home Ministry to amend the section.

(i) It has been suggested that the definition of 'begging' in sub-section (4)(a) of section 363A, should be expanded so as to cover persons wandering without visible means of subsistence, on the analogy of the definition of 'begging' in the Bombay Prevention of Begging Act, 1959. The object of anti-beggary legislation is not punitive, but to tackle the problem of begging by remedial and welfare measures, whereas the object of section 363A is to prevent the cruelty to minors involved in kidnapping children and making beggars of them. The act punishable is kidnapping: subsequent use for begging is only the motive of the act. Where there is evidence of begging in any form, there should be no difficulty, even in the absence of a definition. We, therefore, recommend omission of the definition.

(ii) As in section 361, we do not think it necessary to have one age for boys and another for girls while defining 'minor'. It may be 18 years for both.

(iii) In regard to punishment, the Committee considered,1 and we agree, that the maximum provided in the section is sufficient. We also agree with the Committee2 that a minimum punishment of 3 years' imprisonment would be justifiable in order that the provision might be effective as a deterrent. We do not think that there is any need to give the court a power to award a lesser punishment, as the offence in question is bound to be grave in every situation. Imprisonment should be rigorous.

Accordingly, section 363A may be amended as follows:

(i) in sub-section (1), for the words 'imprisonment of either description', the words 'rigorous imprisonment' shall be substituted; and after the words 'ten years', the words 'but which shall not be less than three years', shall be inserted; and

(ii) for sub-section (4) the following shall be substituted, namely.-

"(4) In this section, 'minor' means a person under eighteen years of age."

1. Report of the Committee on Kidnapping of Children for Begging, (1969).

2. Ibid.

16.99. Section 36.-amendments proposed.-

Section 364 punishes the offence of kidnapping or abduction of a person in order to murder him, the maximum punishment being imprisonment for life or for ten years. In view of our general recommendation as to imprisonment for life, we propose that life imprisonment should be omitted and term imprisonment increased to 14 years.

The illustrations to the section do not elucidate any particular ingredient of the offence and should be omitted.

16.100. Section 364.-Kidnapping or abduction for ransom.-

We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable under section 365 since the kidnapped or abducted person will be secretly and wrongfully confined.

We also considered the question whether a provision1 for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section.-

"364A. Kidnapping or abduction for ransom.- Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imprisonment for a term which may extend to 14 years, and shall also be liable to fine."

1. The New South Wales Criminal Code contains such a provision vide section 90A.



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