Part 3

INGREDIENTS OF KIDNAPPING, DIFFERENCE BETWEEN KIDNAPPING
AND ABDUCTION DISCUSSED WITH RECENT CASE LAWS
INGREDIENTS OF KIDNAPPING, DIFFERENCE

BETWEEN KIDNAPPING AND ABDUCTION DISCUSSED
WITH RECENT CASE LAWS
CHAPTER 1
1. INTRODUCTION
In the terminology of the common law in many jurisdictions (according to Black’s Law
Dictionary), the crime of kidnapping is labeled abduction when the victim is a woman. In
modern usage, kidnapping or abduction of a child is often called child stealing,
particularly when done not to collect a ransom, but rather with the intention of keeping
the child permanently (often in a case where the child’s parents are divorced or legally
separated, whereupon the parent who does not have legal custody will commit the act;
then also known as “child napping”). The word “kidnapping” was originally “kid
nabbing”, in other words slang for “child stealing”, but is no longer restricted to the case
of a child victim.1
1.1 Child Abduction

Child abduction can refer to children being taken away without their parents’ consent,
but with the child’s consent. In England and Wales it is child abduction to take away a
child under the age of 16 without parental consent. Abduction is the crime in English law
of taking a) a girl under 16 from possession of her parent, or guardian, or b) a girl of 18
or defective woman of any age from such possession of unlawful sexual intercourse, or c)
a girl under 21 to marry or have sexual intercourse, or d) taking away and detaining any
woman with the intention that she shall marry or have unlawful sexual intercourse with a
1
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt,
retrieved on 14th April 2009 at 7:30 p.m
INDIAN PENAL CODE PROJECT SUBMISSION Page 1

person, by force, or for the sake of her property. Abduction or kidnapping any child is
also an offence. Abduction of voters is also a criminal act.2
1.2. Kidnapping
Kidnapping, according to Walker,3 is the common name for the common law offence of
carrying away, or secreting, of any person against his will, or against the will of his
lawful guardians. It may be constituted by false imprisonment, which is total restraint of
a person and his confinement without lawful authority or justification.
1.3. Ten Conditions, Of Kidnapping In IPC:

India has comprehensive legislation to counter kidnapping, with the Indian Penal Code
outlining 10 specific offences related to the purpose of the kidnapping. These are-
• Kidnapping a minor for purposes of begging;
• Kidnapping in order to murder;
• Kidnapping for ransom;
• Kidnapping with the intent to secretly and wrongfully confine a person;
• Kidnapping a woman to compel her into marriage;
• Procuration of a minor girl;
• The importation of a girl from a foreign country;
• Kidnapping in order to subject a person to grievous harm, including slavery
kidnapping a child under 10 years old;
• Stealing or buying a minor for the purpose of prostitution. 4
2
Walker, “Oxford Companion to Law”, Oxford Publications, New Delhi, 20th Edition, 1980, pg. 701
3
Ibid, pg.3
4
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt.,
retrieved on 14th April 2009 at 7:30 p.m

CHAPTER 2
2. KIDNAPPING
Meaning of kidnapping in the local language include the abduction as synonym but the
real difference in the understanding is following.
2.1 Section 359:
Kidnapping: Kidnapping is of two kinds: kidnapping from India, and kidnapping from
lawful guardianship.
The literal meaning of kidnapping is child stealing.

The draftsmen of the code said:
“the crime of kidnapping consists, according to our definition of it, in conveying a
person without his consent or the consent of some person legally authorized to consent
on his behalf, or with such consent obtained by deception, out of the protection of the
law, or of those whom the law has appointed his guardians.”
“This offence may be committed on a child by removing that child out of the keeping of
its lawful guardian or guardians. On a grown-up man it can be committed only by
conveying him beyond the limits of the Company’s territories, or by receiving him on
board of a ship for that purpose.”
“The carrying of a grown up person by force from one place within the Company’s
territories to another, and the enslaving him within the Company’s territories, are
offences sufficiently provided for under the heads of restraint and confinement. The
enticing of a grown-up person by false promises to go from place , may be a subject for a

civil action, and , under circumstances, for a criminal prosecution; but it does not appear
to us to come properly under the head of kidnapping.”5
The words ‘kidnapping’ and ‘abduction’ do not include the offence of wrongful
confinement or keeping in confinement a kidnapped person.
2.2 Section 360:
Kidnapping from India: 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
that person, is said to kidnap that person from India.
Essential ingredients: The following are the essential ingredients of the offence under
this section:
1) Conveyance of a person: To convey means to carry from one place to another.
The conveyance or carrying is a continuous process until the destination is
reached. In the case of any offence under this section, the destination must be
some foreign territory.
2) Beyond the limits of India: these words in the section indicate that for an offence
under it must be to some foreign territory.
3) Without the consent of that person or of some person legally authorized to
consent on behalf of that person: A consent given under a misapprehension of
fact, is not true consent.6
5
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.2.
6
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.3.

2.3 Section 361:
Kidnapping from lawful guardianship: 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
The offence under this section may be committed in respect of either a minor or a person
of unsound mind. To kidnap a grown-up person, therefore would not amount to an
offence under it.7
The object of this section is at least as much to protect children of tender age from being
abducted or seduced for improper purposes, as for the protection of the rights of parents
and guardians having the lawful charge or custody of minors or insane persons.
Ingredients: This section has four main essentials8:
1. Taking or enticing away a minor person or a person of unsound mind.
2. Such minor must be under the age of sixteen years, if male, or under the age of
eighteen years, if a female.
3. The taking away or enticing must be out of the keeping of the lawful guardian of
such minor or person of unsound mind.
4. Such enticing away must be without the consent of the lawful guardian.
The taking need not be by force, actual or constructive, and it is immaterial whether the
girl consents or not. There must be a taking of the child out of the possession of the
7
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 649.
8
Restated in Biswanath Mallick v. State of Orissa, 1995 CrLj 1416 (Ori).

parent. If a child leaves its parent’s house for a particular purpose with their consent, it
cannot be said to be out of the parent’s keeping. 9
The offence of kidnapping from lawful guardianship is complete when the minor is
actually taken from lawful guardianship; it is not an offence continuing so long as the
minor is kept out of such guardianship. In determining whether a person takes a minor
out of the lawful guardian, the distance to which the minor is taken away is immaterial.
The act of taking is not, in the proper sense of the term, a continuous act: when once the
boy or girl has been actually taken out of the keeping, the act is a completed one. If
continuous, it would be difficult to say when the continuous taking ceased; it could only
be when the boy or girl was actually restored to the keeping of the guardian.10
Enticing is an act of the accused by which the person kidnapped is induced of his own
accord to go to the kidnapper. The word ‘entice’ involves an idea of inducement or
allurement by exciting hope or desire in the other. It may take many forms difficult to
visualize.
The word “keeping’ implies neither apprehension nor detention but rather maintenance,
protection and control, manifested not by continual action but as available on necessity
arising and this relation between the minor and the guardian is certainly not dissolved so
long as the minor can at will take advantage of it and place herself within the sphere of
its operation.11
The guardianship of the mother does not cease while a minor is in the possession of
another person who has been lawfully entrusted with the care and custody of such minor
by the mother.12If the minor is not in the custody of a lawful guardian, the offence cannot
be committed, whatever the belief of the taker may be. The taking or enticing of the
9
(Reprint 2004 Edition) 2008 at pg. 650.
10
Ibid.
11
Vishnu v. State, 1997 Cr LJ 1724
12
K.K Ali, (1936) 15 Pat 817

minor out of the keeping of the legal guardian must be without his consent. The consent
of the minor is immaterial. If a man by false and fraudulent representation induce the
parents of a girl to allow him to take her away, such taking will amount to kidnapping.
Consent given by the guardian after the commission of the offence would not cure it. 13
The word ‘lawful’ must be literally construed so as to distinguish it from “legal
guardian” as a guardian maybe lawful without being legal. The expression “lawfully
entrusted” signifies that the care and custody of a minor. Entrustment means the giving,
handing over, or confiding of something by one person to another.
2.4 Section 363:

Punishment for Kidnapping:Whoever kidnaps any person from India or from lawful
guardianship shall be punished with imprisonment of either description for a term which
may extent to seven years, and shall also be liable to fine.
This section must be read with Section 361. The offence of kidnapping from lawful
guardianship penalized by this section is the offence which is defined by Section 361.14
The person against whom the offence is committed must be under the age of sixteen, if a
male, and under the age of eighteen years if a female. Where a girl of 23 years of age left
15
her parents of her own will and married a man, section 363 or 366 was not attracted.
Where in a case of kidnapping the girl deposed that she had gone with the accused
voluntarily, his conviction u/s 363 was set aside.16
13
Ganesh, (1909) 31 All 448
14
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint
2004 Edition) 2008, p. 651
15
Oroos Fatima v Sr. Supdt of Police, Aligarh, 1993 CrLJ 1 (All)
16
Bhajan Lal v. State of U.P, 1996 CrLJ 460 (All)

CHAPTER 3
3. ABDUCTION
As expand kidnapping, abduction is also a crime under Indian Penal Code it is mentioned
in following sections.
3.1 Section 362:
Abduction: “Whoever by force compels, or by any deceitful means induces, any person
to go from any place, is said to abduct that person
This section merely gives a definition of the word “abduction” which occurs in some of
the penal provisions which follow. There is no such offence as abduction under the Code,
but abduction with certain intent is an offence. Force or fraud is essential.
Ingredients- this section requires two things17:
1. Forceful compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the going of a person from any
place.
Force in Section 362 means actual force and not merely a show or threat of force.
Deceitful means signifies anything intended to mislead another. It includes inducement
and its scope is very wide. The intention of the accused, one may say, is a gravamen of
the charge. The case of Rabinarayan Das18 is a pointer in this regard. Here the
prosecutrix was blind. She wanted to go to her school. However, the petitioner took her
17
2004 Edition) 2008, p. 657
18
1992 Cri LJ 269 at p.273

to secretariat premises. Evidence of inducement is not forthcoming and yet there was
nothing to prove that the woman had gone there out of her volition or free will.19
Abduction is a continuing offence. The abduction of a married woman comes under
section 366 and the actual validity or otherwise of the marriage is immaterial. Mere
abduction without a criminal intent of one of the kinds specified in the section is not
recognized as an offence.\
19
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006, p. 528

CHAPTER 4
4. DIFFERENCE BETWEEN KIDNAPPING AND

ABDUCTION
The difference can be understood by the mentioned definition in a definitive way but to
go into dept, when we put the practical and theoretical implication the following
difference comesout in point
1. ‘Kidnapping’ is committed only in respect of a minor under sixteen years of age

if male and under eighteen years if a male or a person of unsound; ‘abduction’, in
respect of a person of any age.
2. In ‘Kidnapping’, the person kidnapped is removed out of lawful guardianship. A
child without a guardian cannot be kidnapped. ‘Abduction’ has reference
exclusively to the person abducted.
3. In Kidnapping, the minor is simply taken away. The means used may be
innocent. In ‘Abduction’, force, compulsion, or deceitful means are used.
4. In kidnapping, consent of the person taken or enticed is immaterial; in abduction,
consent of the person moved, if freely and voluntarily given, condones abduction.
5. In ‘kidnapping’ the intent of the offender is a wholly irrelevant consideration: in
abduction, it is the important factor.
6. Kidnapping from guardianship is a substantive offence under the Code; but
abduction is an auxiliary offence, not punishable by itself, but made criminal only
when it is done with one or other of the intents specified in S.364.20
20
2004 Edition) 2008, p. 658

CHAPTER 5
5. AGGRAVATED FORMS OF KIDNAPPING AND

ABDUCTION
Section 363A to 369 are aggravated form of kidnapping and abduction. We now that
kidnapping is a offence in it self but abduction is not so the aggravated form not only
offence but they are only liability clause in the statute.
5.1. Section 363A.
Kidnapping or maiming a minor for purposes of begging: (1) Whoever kidnaps any
minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in
order that such minor may be employed or used for the purpose of begging shall be
punishable with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor can be employed or used for the
purposes of begging shall be punishable with imprisonment for life, and shall also be
liable to fine.
(3) Where any person, not being the lawful guardian of minor, employs or uses such
minor for the purpose of begging, it shall be presumed, unless the contrary is proved, that
he kidnapped or otherwise obtained the custody of that minor in order that the minor
might be employed or used for the purposes of begging.
(4) In this section –
(a) “Begging” means;
(i) Soliciting or receiving alms in a public place, whether under the pretence of singing,
dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) Entering on any private premises for the purpose of soliciting or receiving alms;

(iii) Exposing or exhibiting, with the object of obtaining or e extorting alms, any sore,
wound, injury, deformity or disease, whether of himself or of nay other person or of an
animal;
(iv) Using a minor as an exhibit for the purpose of soliciting or receiving alms;
(b) “Minor” means-
(i) In the case of a male, a person under sixteen years of age; and
(ii) In the case of a female, a person under eighteen years of age.
This Section was inserted in 1959 to put down effectively the evil of kidnapping children
for exploiting them for begging. There are cases wherein minors are kidnapped are
kidnapped and castrated with a view to make them eunuchs who could be useful as
professional beggars. The offence under Section 363-A is triable by a Magistrate of the
first class while under 363 –A(2) is triable by a Court of Sessions. Barring this the
offence under 363-A is cognizable, not bailable and not compoundable.21
Although men are also victimized, the overwhelming majority of those trafficked are
women and children. According to official estimates, between 1 and 2 million women
and children are trafficked each year worldwide for forced labour, domestic servitude, or
sexual exploitation. An estimated 50,000 persons are trafficked each year to the United
States. Trafficking is now considered the third largest source of profits for organized
crime, behind only drugs and guns, generating billions of dollars annually.
Child Trafficking22 is an inhumane offence against defenseless and innocent children.

Millions of children are forcibly trafficked or coerced across borders only to be sold in
the sex trade, for illegal adoption, for criminal activities, for work as domestic servants,
beggars, soldiers, or for other purposes. The urgency to combat trafficking in children is
understandable considering the heinous nature of the phenomenon – it is an affront to
principles of human dignity and morality and a severe violation of basic human rights.
21
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd Edition, 2006, p. 529
22
Van Bueren ,“The International Law on the Rights of a Child,” Kluwer 1989 – “Trafficking” in children
is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of
exploitation.

Principle 9 of the Geneva Declaration of Rights of the Child of 1924 states explicitly that
the “The child shall be protected against all forms of neglect, cruelty and exploitation. He
shall not be the subject of traffic, in any form.” 23
Despite being in existence for centuries, Child Trafficking has only in recent years
emerged as an issue of global concern due to the worldwide consensus and co-operation
to join hands in fighting this heinous crime; With the amplification of international and
national legal apparatus, the trafficking of human beings is perceived to be more than a
crime – it is a serious violation of human rights, children’s rights, labour rights and basic
fundamental freedoms. Child Trafficking has become highly lucrative and increasingly
worthwhile as women and children are considered commodities which can be “sold”
several times over. With the permeable borders and the advancement of technology child
trafficking has expanded around the Globe where the routes for trafficking children alter
according to local conditions or supply and demand factors. It is no longer adequate to
say that victims are trafficked from poor to the wealthier ones.
Violence is not the necessary mode for child trafficking, as has been often misconceived,
as the victims are tricked, deceived, forced, sold by their parents or otherwise coerced
into situations, which they later cannot escape from.24
5.2. Section 364:
Kidnapping or abducting in order to murder: Whoever kidnaps or abducts any person
in order that such person may be murdered or may be so disposed of as to be put in
danger of being murdered, shall be punished with imprisonment for life or rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.
23
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc on 14th April 2009 at 12:30 am.
24

To establish an offence under this section it must be proved that the person charged with
the offence had the intention at the time of the kidnapping or abduction that the person
will be murdered or so disposed of as to be put in danger of being murdered.25 If no
evidence is available on the score, the accused cannot be convicted under this section.
Where the witnesses saw the party of the accused persons forcibly taking away a woman,
who was found dead a week later, and though there was nothing to connect them with the
murder, there was evidence of the body being destroyed by them, they were convicted
not of murder but only under this section and s. 201 for destroying evidence. 26 In another
case the two accused and the third person were seen disappearing together. They had
drinks and moved away. The one who did not return home, his moustache, torn kurta and
a few drops of blood were found by the side of a swollen river. Whether he was pushed,
or he slipped could not be known. His companions were not convicted under this
section.27 Where the accused persons, on false pretext of repaying the money to the
deceased, induced him to accompany them to a distant place and after killing him, threw
the body in a private ravine, their conviction under s. 364 along with sections 300 and
201 was upheld.28
In Sacha Singh v. State of Punjab29, during the period of insurgency, two young Sikh
boys were abducted by armed assailants from their house on a dark night in the sight of
their parents. They were killed within a short while by the abductors. The abductors were
charged with murder. It was held that when more persons than one have abducted the
victim, who was later murdered is within the legal province of the court to justifiably
draw a presumption depending on the factual situation that all the abductors are
responsible for murder. Section 34 of the Penal code could be invoked for the aid to meet
the ends of justice.30
25
2004 Edition) 2008, p. 660
26
Pati Ram v. State of U.P., 1990 Cr LJ 447 (All.).
27
Mahavir v. State of U.P, 1990 Cr LJ 1605 (All).
28
Valiyaveetil Ashraf v State, 1994 Cr LJ 555 (Ker).
29
2001 Cr LJ 1734 (SC).
30
S.N. Mishra, “Indian Penal Code”, Central Law Publications, Allahabad, 14th Edition, 2006 at pg. 583.

An abducted victim was murdered later on. It was held that the court can, depending on
the factual situation, draw the presumption that the abductors are responsible for the
murder. It is their responsibility to explain to the court what they had done with the
victim. 31
5.3. Section 364-A
Kidnapping for ransom, etc: Whoever kidnaps or abducts any person or keeps a person in
detention of the such kidnapping or abduction and threatens to cause death or hurt to such
person, or by his conduct gives rise to a reasonable apprehension that such person may be
put death or hurt, or causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-governmental organization or any
other person to do or abstain from doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be liable to fine.
The kidnapped child was recovered from the custody of the accused by the raiding party.
The letter demanding ransom was recovered from the pocket of the accused. He had
neither posted it nor contacted any body for the purpose for three days till his arrest. The
court said that there was no demand for ransom. An offence under this section was not
made out. Conviction under section 363 and 365 was held proper.32
Hence the ingredients of this section are33:
1. Kidnapping or abducting any person
2. Threatens to cause death or hurt to such person
3. Compelling the Government or any person to pay ransom.
31
Sacha Singh v. State of Punjab, 2001 Cr LJ 1734 (SC).
32
Netra Pal v. State (NCT) of Delhi, 2001 Cr LJ 1669 (Del)
33
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition

Recent Case Law:

Anil Raju Namdev Patil v. Administration of Daman and Diu, Daman and Anr.34
Paras, deceased herein were aged about 5 years. He was a student in Coast Guard School.
He went to the school on 3.08.2000. His parents are owner of a factory situated in
Daman. The appellant admittedly was appointed as a driver by them and worked for
about three months. At around 6.15 p.m. on the said date, a phone call was attended by
Alpa, mother of the deceased. When she heard the caller, she started weeping at which
point their neighbor Khimjibhai picked up the phone and from other end he was informed
that the boy was in their custody. A demand of Rs. 25 lakhs was made as ransom money
for returning the child safely. Ashwin, father of Paras, thereafter went to the police
station and lodged a complaint. A few calls demanding ransom were received in the next
two days. Ashwin was asked to come to a place near Ankleshwar with the amount of
ransom in his Armada Car. Further instructions as to how money should be handed over
were also furnished. A trap was arranged at Ankleshwar but nobody turned up to claim
the amount of ransom. When a query was made as to whether he knew a person who was
a resident of Ankleshwar, the name of the appellant was disclosed. He was arrested and
on conducting a search his personal diary was seized. He made a confession that the boy
had been murdered. He made a statement which led to recovery of a few bones on
7.08.2000 at about 4.00 p.m. from a nalla. The bones recovered were examined by a
Medical Officer who opined that they might be of a boy who would be of the same age as
that of the deceased. Bones along with blood samples of the parents were sent for DNA
test to Hyderabad. The bones were found to be that of Paras. Two other persons Satish
and Chhotu who were also allegedly involved in commission of the crime committed
suicide in a hotel. A purported suicide note written by Satish was found wherein they
implicated not only themselves but also the appellant. On 15.08.2000, the appellant was
sent to judicial custody. On 16.08.2000, a request was made to the Chief Judicial
Magistrate, Daman for recording the purported confessional statement of the appellant. It
was recorded on 17.08.2000 and 18.08.2000. He therein admitted to have kidnapped
Paras for the purpose of demanding ransom but stated that he was murdered by Chhotu
34
JT2006(10)SC586

@ Dharamraj and Satish. Indisputably, the suicide note and other specimen documents in
the handwriting of Satish were sent to the government examiner for opinion. The
prosecution in support of its case examined a large number of witnesses and also proved
a large number of documents.
It was held that the ingredients for commission of offence under Section 364 and 364A
are different. Whereas the intention to kidnap in order that he may be murdered or may
be so disposed of as to be put in danger as murder satisfies the requirements of Section
364 of the Indian Penal Code, for obtaining a conviction for commission of an offence
under Section 364A thereof it is necessary to prove that not only such kidnapping or
abetment has taken place but thereafter the accused threatened to cause death or hurt to
such person or by his conduct gives rise to a reasonable apprehension that such person
may be put to death or hurt or causes hurt or death to such person in order to compel the
government or any foreign State or international intergovernmental organization or any
other person to do or abstain from doing any act or to pay a ransom. It was, thus,
obligatory on the part of the learned Sessions Judge, Daman to frame a charge which
would answer the description of the offence envisaged under Section 364A of the Indian
Penal Code. It may be true that the kidnapping was done with a view to get ransom but
the same should have been put to the appellant while framing a charge. The prejudice to
the appellant is apparent as the ingredients of a higher offence had not been put to him
while framing any charge. The appellant could not have been convicted under Section
364A of the Act. The court found him guilty of commission of an offence under Section
364 of the Indian Penal Code. He, deserved the highest punishment prescribed therein,
i.e., the rigorous imprisonment for life. The appeal was dismissed with the modification
of sentence as also quantum thereof.
5.4. Section 365:
Kidnapping or abducting with intent secretly and wrongfully to confine person: Whoever
kidnaps or abducts any person with intent to cause that person to be secretly and

wrongfully confined, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.
Section 365 requires an intention to confine a person secretly and wrongfully. Holding a
person to ransom by his abductors is an offence under this section. 35
Where there was sufficient evidence to show that the victim woman abducted from her
house and then taken to different places which included confinement to one place until
she was recovered by the police, it was held that the accused could be convicted under
this section and S. 368 but not section 366.36
There was ample evidence to show that the victim was taken away under deceit and then
sold to a brothel house. She was not a minor at the time of the incident. Therefore, the
accused could not be convicted under S. 366 or 372. They could be convicted under
S.365.37
5.5 Section 366:

Kidnapping, abducting or inducing woman to compel her marriage, etc: Whoever
kidnaps or abducts any woman with intent that she may be compelled, or knowing it to
be likely that she will be compelled, to marry any person against her will, or in order that
she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will
be forced or seduced to illicit intercourse shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces any woman to go from any place
35
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.530
36
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.
37
Shaik Ramjan v State, 1999 Cr LJ 2161.

with intent that she may be, or knowing that it is likely she will be, forced or seduced to
illicit intercourse with another person shall be punished as aforesaid.
Where a woman has no intention of marriage or lawful intercourse when kidnapped, this
section applies.38
Ingredients: this section requires:
1. Kidnapping or abducting of any woman

2. Such Kidnapping or abducting must be-
i) with intent that she may be compelled or knowing it to be likely that she will
be compelled to marry any person against her will or
ii) in order that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that she will be forced or seduced to illicit intercourse; or
iii) by means of criminal intimidation or otherwise by inducing any woman to
go from place with the intent that she may be, or knowing that she will be,
forced or seduced to illicit intercourse.39
It is immaterial whether the woman kidnapped is a married woman or not.
5.5.1 KIDNAPS OR ABDUCTS ANY WOMAN:

If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she
was under eighteen she could be kidnapped as well as abducted if the taking was by force
40
or the taking or enticing was by deceitful means. Voluntarily going away for marriage
is not an offence under this section. Doubts about age, if not resolved satisfactorily,
would go in favor of the accused.41
38
39
Ibid.
40
Nawabkhan v. State, 1990 Cr LJ 1179 (MP)
41
Satish Kumar v. State, 1988 Cr LJ 565 (Del)

5.5.2 WITH THE INTENT THAT SHE MAY BE COMPELLED TO MARRY ANY
PERSON AGAINST HER WILL :
The intention of the accused is the basis and the gravamen of the offence under this
section. The volition, the intention and the conduct of the woman do not determine the
offence; they can only bear upon the intent with which the accused kidnapped or
abducted the woman.42 Where only confinement was established, the Supreme Court held
that the conviction was possible under S. 365 and 368 and not 366.43 Once the necessary
intent of the accused is established the offence is complete, whether or not the accused
succeeded in effecting his purpose, and whether or not in the event the woman consented
to the marriage or the illicit intercourse.44
5.5.3 FORCED OR SEDUCED TO ILLICIT INTERCOURSE:

The word ‘forced’ is used in its ordinary dictionary sense and includes force by stress of
circumstances. The expression ‘seduced’, used in this section and section 366-A, means
45
inducing a woman to submit to illicit intercourse at any time. Where a girl under
eighteen years of age is taken away from the keeping of her father by the accused with
the object of marriage and section, he is guilty of an offence under this section,
notwithstanding the fact that the girl accompanied him if her own accord and not as a
result of force or misrepresentation. Mere abduction does not bring an accused under the
ambit of Section 366 of the Indian Penal Code (Kidnapping abducting or inducing
woman to compel her marriage).
Unless the prosecution proves that the abduction is for the purposes mentioned in Section
366, IPC, the Court cannot hold the accused guilty and punish him under the section.
The Supreme Court made these observations while hearing an appeal challenging a
conviction under Section 366 of the IPC.
42
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition
43
Fiyaz Ahmad v. State of Bihar, 1990 Cr LJ 2241
44
Khalil-Ur-rahman, (1933) 11 Ran 213 (FB)
45
Ramesh, (1962) 64 Bom LR 780 (SC)

Gabbu was tried for committing offences under Section 366. The Session Court
convicted the accused-appellant under Sections 366 and sentenced him to undergo two
years rigorous imprisonment. The High Court in the appeal preferred by the accused
appellant confirmed the order of the Session Court following which the Supreme Court
was moved.
A Division Bench comprising Justices S B Sinha and P P Naolekar, while setting aside
the conviction and allowing the appeal observed that that a mere finding that a mere
finding that a woman was abducted is not enough. It must be further proved that the
accused abducted the woman with an intent that she may be compelled, or knowing it to
be likely that she will be compelled to marry any person or in order that she may be
forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or
seduced to illicit intercourse. Further, the Bench observed that is necessary for the
prosecution to prove that the accused induced the complainant-woman or compelled by
force to go from any place that such inducement was by deceitful means.
While dealing with the instant case the Bench observed that the prosecutrix had nowhere
alleged that she was abducted with the intention to commit an offence. In overall
consideration of the material placed on record by the prosecution, we do not find that the
prosecution has proved that the accused-appellant has committed an offence under
Section 366, IPC. There is a doubt as to the place of incident and the motive of the
accused in taking away the prosecutrix. We find it difficult to believe in the story put up
by the prosecutrix that she was forced to leave her place of residence under a threat by
showing a knife to her, the court also observed. In order to constitute an offence a person
must be carried off.
Recent case law:
State of Maharashtra v. Gajanan @ Hemant Janardhan Wankhede46
46
2008 Cr LJ 3549

Prosecutrix, who is the daughter of complainant Ambaprasad Mishra, was residing with
the family in Mangilal plots, Amravati. The accused-respondent was also the resident of
the same locality. The prosecutrix was educated upto 7th standard and she had taken her
education in Municipal School No. 5 at Amravati. Her date of birth recorded in official
documents was 4.6.1976 and the incident of kidnapping her by the accused took place on
21.4.1991. As such she was aged 14 years, 10 months and 17 days at the time of the
incident. On 21.4.1991, the accused sent a message to prosecutrix through one Sachin
and called her to come with a bag at a place near her school. Accordingly, the prosecutrix
went at that place. Then the accused, prosecutrix and Sachin went by an autorickshaw to
Chinchfail area of Amravati where the grandmother of the accused was residing. They
reached there at about 1.00 p.m. The accused took his suitcase. Then the accused and
prosecutrix who were accompanied by Sachin, arrived by an autorickshaw at Badnera
Railway station. Sachin went back to Amravati from Badnera Railway Station and the
accused and prosecutrix arrived at Nagpur by train. They reached Nagpur at about 5.00
p.m. Therefrom they went to Jhansi. They reached Jhansi early in the morning, i.e. at
about 4.00 to 5.00 a.m. At Jhansi, they went to the house of the sister of the accused
namely Lata. They stayed in one separate room in the house of accused’s sister for about
8 to 10 days. During this period, they used to sleep in that room and the accused
practically on every night performed sexual intercourse with prosecutrix. Then from
Jhansi, the accused and prosecutrix arrived at Bichona and stayed there in the house of
one Rajput for about 3-4 days and the accused performed sexual intercourse with the
prosecutrix twice. Then from Bichona, both of them came to Mundai. They resided at
Mundai in the house of one Narmadaprasad for about one and half months. From
Mundai, the accused and prosecutrix arrived at Chinchkhed via Nagpur and Amravati
and stayed in the house of the sister of the accused for about 4-5 days. Again from
Chinchkhed, they went to Nagpur and stayed in the house of one friend of the accused for
about 20 days. The accused was working as a labourer during this period. The accused
and the prosecutrix then again came back to Chinchkhed, stayed there for one day and
then went to Katsoor. They stayed at Katsoor at the house of maternal aunt of the accused
for about 4-5 days. Then they came to Paratwada and therefrom went to village Talegaon

where they stayed with the aunt of the accused. Then from Talegaon, they went to Delhi.
But since the address of the person within whom they were going to stay at that place
was not available, they returned back to Talegaon. During all these days, the accused
performed sexual intercourse with the prosecutrix. While at Talegaon, the father of the
prosecutrix and Rajapeth (Amravati) Police arrived there. The statement of the
prosecutrix was recorded and she was taken back.
Meanwhile, immediately on the next day of the occurrence, i.e. 22.4.1991, the father of
the prosecutrix on coming to know the fact about kidnapping his daughter by the
accused, had lodged the report in Police Station Rajapeth, Amravati, on the strength of
which the offence under Sections 363 and 366 IPC was registered as Crime No. 184 of
1991. Then on 28.8.1991, the prosecutrix and the accused were traced at Talegaon and
accused was arrested. Prosecutrix was referred to Women’s Hospital, Amravati, for her
medical examination. The Medical Officer concerned examined her and found that her
hymen was ruptured, she was habituated to sexual intercourse and she was carrying
pregnancy of 4 to 6 weeks. On arrest of the accused, he was also referred for medical
examination and the Medical Officer concerned opined that he was capable of
committing sexual intercourse. The ossification test of the girl was also carried out and
the opinion of the concerned Medical Officer was that the girl was aged about 14 to 16
years. The radiological examination of the accused was also performed wherein it was
found that he was aged about 20 years. The necessary investigation was conducted and
on completion of the same the accused stood charge sheeted for the offences punishable
under Sections 363, 366 and 376 IPC. The conclusions of the High Court were totally
erroneous. The High Court came to presumptuous conclusion about the date of birth of
the victim. The inevitable conclusion was that the judgment of the High Court is
unsustainable, and was set aside. The respondent was surrendered to custody to serve the
remainder of the sentences.
5.6 Section 366 A:

Procuration of minor girl: Whoever, by any means whatsoever, induces any minor girl
under the age of eighteen years to go from any place or to do any act with intent that such
girl may be, or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable with imprisonment which may
extend to ten years, and shall also be liable to fine.
Sections 366 Aand 366 B are intended to punish the export and import of girls for
prostitution. Section 366 A deals with procuration of minor girls from one part of India to
another part. Section 366B makes it an offence to import into India from any country
outside India below the age of twenty one years for the purpose of prostitution.47
Ingredients:
This section requires two things: 1. inducing a girl under eighteen years to go from any
place to do an act, 2. intention or knowledge that such girl will be forced or seduced to
illicit intercourse with a person.
An offence under this section is one of inducement with a particular object, and when
after the inducement the offenders offer the girl to several persons a fresh offence is not
committed at every fresh offer for sale.
1. Seduced: The word ‘seduced’ is used in the ordinary sense of enticing

or tempting irrespective of whether the minor girl has been previously
compelled or has submitted to illicit intercourse.
2. Age: It is necessary to prove the age of the prosecutrix to be below 18
years. In this case, the school certificate was considered to be the best
evidence.
Predominantly, women and children are trafficked in for the “sexual trade”.
47

The lack of employment in their native countries, force women and children into illegal
migration, through migrant traffickers who offer “package deals”. Deceptive means such
as false promises of careers in business, factories and households, are used to lure the
women and children to being trafficked. They are inevitably then found imprisoned in
brothels. In many cases, the women are lured to foreign countries in the hope of
obtaining legitimate work, where they are then paid salaries and the poverty eventually
forces them to resort to prostitution or to prostitute themselves under duress.48
The trafficking of children is usually by way of kidnapping or abduction, once abducted,

threats and acts of violence are used to hold on to the victims. In Thailand for instance,
brothel managers employ agents to collect photos of young girls as they go to school.
The girls are then selected by the managers and upon selection the girls are ordered by
them for the agents to kidnap.
Aside from the kidnapping or abduction, Asian Countries have also faced the poverty
driven selling of “daughters” by the impoverished families to “agents” for sometimes as
low as US$200 a child, which children are then re-sold to traffickers. The sale of the girl
child by her family, due to poverty, in turn places the financial burden of supporting her
family on the girl child. Such trafficking is an example of non-violent trafficking of
children. Also of large incidence is where the agents pose as “potential husbands” used
to deceive the family of the girl child into believing the girl child and her “rich” husband
will take over their financial burden, inevitably however, the girl child is then either sold
to traffickers or forced into prostitution. However, one must remember that it benefits
the traffickers to keep their victims in a foreign environment where not only are they
vulnerable for having entered a country illegally, but are also disadvantaged because of
their ignorance of the law, culture and language of that country.49
48
49

For women and girls additional protection is provided in the Immoral Traffic Prevention
Act. This act was amended in 1956 to provide for more severe penalties for offences
involving children and minors. Under this act anyone who detains a woman or girl in a
brothel or on any other premise with the intent that the female person shall have sexual
intercourse with other persons is liable to punishment. To facilitate prosecution, certain
circumstances are presumed to constitute illegal detainment. Thus if someone is found
with a child in a brothel or a child that has been sexually assaulted is found in a brothel it
is presumed that the child is illegally detained. Offenders are liable to a prison term from
7 years to life. These strict liability provisions allow for a higher possibility of curbing
the offence, which would otherwise not be possible without the reversal of the burden of
proof as has often happened in drug-related offences.50
5.7. Section 366B:
Importation of girl from foreign country:Whoever imports into India from any country
outside India 3or from the State of Jammu and Kashmir any girl under the age of twenty-
one years with intent that she may be, or knowing it to be likely that she will be, forced
or seduced to illicit intercourse with another person, shall be punishable with
imprisonment which may extend to ten years and shall also be liable to fine.
The Select Committee in their Report observed: “the case of girls imported from a
foreign country we propose to deal with by the insertion of a new section 366 B in the
Code. We are unanimously of opinion that the requirements of the Convention will be
substantially met by penalizing the importation of girls from a foreign country. At the
same time we have so worded the clause as to prevent its being made a dead-letter by the
adoption of the course of
50
Ibid

importing the girl first into an Indian State. 51 After the coming into force of the
Constitution of India this section was amended to bring it in accord with the changed
circumstances.52
5.8 Section 367:
Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc:
Whoever kidnaps or abducts any person in order that such person may be subjected, or
may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery,
or to unnatural lust of any person, or knowing it to be likely that such person will be so
subjected or disposed of, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.
5.9 Section 368:
Wrongfully concealing or keeping in confinement, kidnapped or abducted person:
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully
conceals or confines such person, shall be punished in the same manner as if he dad
kidnapped or abducted such person with the same intention or knowledge, or for the
same purpose as that with or for which he conceals or detains such person in
confinement.
This section does not apply to the principal offender but to those persons who assist him
in concealing any person who has been kidnapped. A kidnapper cannot be convicted
under this section.53
51
Gazette of India, dated February 10, 1923, Part V, p.79
52
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.536
53
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241

Ingredients of this section:

1. The person in question has been kidnapped
2. The accused knew that the said person had been kidnapped.
3. The accused having such knowledge wrongfully conceals or confines the person
concerned.
Apart from direct evidence these ingredients can be proved by facts and circumstances of
a particular case.54 In Saroj Kumari case55 the appellant was found in possession of a
newborn child. On asking, no explanation was given by her. She pretended to conceal the
child and claim it to be hers. It was a fact that she had not delivered in the recent past.
Since all the ingredients were established she was held to be guilty of the offence.
Knowledge of the assailant is the most important factor here. For all practical and legal
purposes, knowledge means the state of mind entertained by a person with regard to
existing facts which he has himself observed, or the existence of which has been
communicated to him by a person he has no reason to doubt.56
5.10 Section 369:
Kidnapping or abducting child less than ten years with intent to steal from its
person:Whoever kidnaps or abducts any child under the age of ten years with the intention
of taking dishonestly any movable property from the person of such child, shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
This section is intended to protect enticing away of children from their parents in order to
steal ornaments from the children. The offence being a serious one, punishment is 7 years
imprisonment and fine. It may however be noted that the offence under 363 is included in
54
Saroj Kumari, 1973 Cr LJ 267
55
(1973) 3 SCC 669
56
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.

this section.57 The offence is cognizable, non bailable, not compoundable and triable by a
first class Magistrate.
57
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.

CHAPTER 6
6. THE IMMORAL TRAFFICK (PREVENTION) ACT, 1956
With a view to implement International Convention signed at New York on the 9th May,
1950, “ the suppression of immoral traffic in woman and girls bill, 1950” was
introduced in the Lok Sabha on the 20th December, 1954, by the then Minister K.N.
Katju.
In 1950 the Government of India ratified an International Convention for the Suppression
of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. Under
Article 23 of the Convention, traffic in human beings is prohibited and any contravention
of the prohibition is an offence punishable by law. Under Article 35 such a law has to be
passed by Parliament as soon as may be after the commencement of the Constitution.
Legislation on the subject of suppression of immoral traffic does exist in a few States but
the laws are neither uniform nor do they go far enough. In the remaining States there is
no bar on the subject at all. In the circumstances it is necessary and desirable that a
Central law should be passed which will not only secure uniformity but also would be
sufficiently deterrent for the purpose. But a special feature of the Bill is that it provides
that no person or authority other than the State Government shall establish or maintain
any protective home except under a license issued by the State Government. This will
check the establishment of homes which are really dens for prostitution58
The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic
(Prevention) Act, 1956 to combat trafficking and sexual exploitation for commercial
purposes. The Bill deletes provisions that analyze prostitutes for soliciting clients. It
58
http://socialwelfare.delhigovt.nic.in/immoraltraffact1.htm, retrieved on 12th April 2009 at 12:34 am

analyzes any person visiting a brothel for the purpose of sexual exploitation of trafficked
victims. All offences listed in the Bill would be tried in camera, i.e., the public would be
excluded from attending the trial. While prostitution is not an offence, practicing it in a
brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity
on whether prostitution ought to be a legitimate way of earning a living if entered into by
choice. Penalizing clients who visit prostitutes could drive this sector underground,
preventing legal channels of support to victims of trafficking. This Bill punishes
trafficking for the purpose of prostitution. Trafficking for other purposes (such as bonded
labor and domestic work) is not covered by the Bill. The Bill aims to combat trafficking
in persons for sexual exploitation. It does not prohibit prostitution. It addresses the issue
of trafficking through both supply side (by measures to punish traffickers) and demand
side (penalties for clients) mechanisms. There are three issues that need to be considered.
First, whether prostitution ought to be a legitimate way of earning a living if the person
enters or stays in the profession out of choice. Second, whether the demand side
mechanism of punishing clients would be the best way to tackle trafficking. Third,
whether trafficking in persons for purposes other than sexual exploitation would be
analyzes. These issues are discussed below.59
6.1. Legality of prostitution:
The Bill defines “prostitution” as sexual exploitation or abuse of persons for commercial
purposes and a “brothel” as any house or place which is used for purposes of sexual
exploitation for the gain of another person or for the mutual gain of two or more
prostitutes. Although the Bill does not analyze an individual if he is in prostitution for his
own profit, it analyzes prostitution if carried on in a brothel or from any public place
within 200 meters of an educational institution, place of religious worship, hotel,
hospital, nursing home or any public place notified by the Commissioner of Police or
Magistrate. Such clauses, while technically not prohibiting prostitution, make it almost
impossible for a person to operate as a prostitute. Thus, the Bill lacks clarity on whether
59
www.indiatogether.org/2006/oct/law-immoral.htm, retrieved on 12th April 2009 at 11:30 p.m.

prostitution ought to be a legitimate way of earning a living if the person enters or stays
in the profession out of choice.60
6.2. Punishing Clients:
The Bill seeks to analyze any person who visits a brothel for the purpose of sexual
exploitation of a trafficked victim. The issues that arise out of such a provision are as
follows. It would be difficult for a person visiting a brothel to distinguish between a
trafficked person and a non-trafficked person. A person is analyzes only if he sexually
exploits a trafficked victim. If the victim is not trafficked, the client would not be
analyzes. Any person visiting or found in a brothel can be analyzes if the purpose of the
visit is sexual exploitation of a trafficked victim. However, as the term ‘sexual
exploitation’ is not defined in the Bill, it could lead to harassment of every person who
visits a brothel irrespective of the object of his visit. International experience suggests
that the provision to analyze clients may not be an effective way to curb sexual
exploitation. For example, Sweden views prostitution as an aspect of male violence
against women and children and analyzes the act of purchasing sexual services. There is
a view that this provision has moved the trade underground.
6.3. Trafficking Limited To Prostitution:
India is a signatory to the UN Protocol to Prevent, Suppress and Punish Trafficking in

Persons Especially Women and Children, supplementing the UN Convention against
Transnational Organized Crime. This Protocol defines ‘trafficking in persons’ as ‘the
recruitment, transportation, transfer, harboring or receipt of persons, by means of the
threat or use of force’. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labor or services,
slavery or practices similar to slavery, servitude or the removal of organs.” 61
60
Ibid
61
www.indiatogether.org/2006/oct/law-immoral.htm, retrieved on 12th April 2009 at 11:30 p.m.

CHAPTER 7

7. STATISTICS
There has been a significant rise in kidnapping cases owing to the rising prosperity
together with inadequate law enforcement. In 2006, the latest period for which data is
available, the number of reported abductions jumped 52 percent to 23,991, from 15,750
in 2005, ranking India sixth among 10 countries with the worst record for kidnappings,
according to the National Crime Records Bureau.62
Uttar Pradesh recorded the highest number of kidnappings at 3,318 in 2006, followed by
Bihar and Andhra Pradesh at 2,619 and 2,030, respectively. The rise in kidnapping
incidents comes at a time when domestic and overseas companies are expanding in the
hinterland, where the law enforcement machinery is often not able to provide adequate
protection to their employees. Madhya Pradesh, Maharashtra, Uttar Pradesh and
Chhattisgarh (997) have accounted for 24.8, 15.4, 12.0 and 6.7 per cent of total crimes
respectively against children at the national level.
Procuration of Minor Girls (Sec. 366A IPC) 205 cases were reported in the year 2008 as
compared to 145 such cases in 2007, accounting for 29.3% increase over 2007. Andhra
Pradesh has reported 48 such cases indicating a share of 33.1 percent at national level. In
absolute numbers, these cases registered a fall to 48 against 60 in 2007 in case of Andhra
Pradesh and 9 in 2008 from 32 in 2007 in Uttaranchal. A minor increase of 0.1 per cent
was noticed in Kerala (20 cases in 2007 increased to 21 cases in 2008). 28 cases of
‘Buying of girls’ and 50 cases of ‘Selling of girls’ for Prostitution were reported in the
country during 2007 against 21 and 19 such cases respectively in 2008. Andhra Pradesh
& Delhi with 32.1% each along with Maharashtra 21.4 accounted for 85.6% (24 cases) of
total cases of ‘Buying of Girls’ and West Bengal has accounted for 88.0% (44 cases) of
the total cases of ‘Selling of Girls’ for Prostitution reported in the country. Incidence of
kidnapping and abduction of women and girls recorded an increase of 9.4% from 2004 to
2008.63
62
http://ncrb.nic.in/cii2007/cii-2007/CHAP6.pdf, accessed on 17th April 2009 at 8:30 p.m.
63
Ibid

CHAPTER 8
8. CONCLUSION
Essential to combating trafficking of children is the co-operation between the legal
systems, the government bodies and the non-government bodies around the globe. The
passing of deterrent laws for the trafficker, as opposed to the victim is a step towards
reducing the occurrence of trafficking in children, however one must bear in mind that
the criminal mind will always find its ways to circumvent the laws passed.
Most societies are plagued by the malady of child trafficking, making it today a “global
phenomenon” yet it remains somewhat “unknown”. The exact magnitude of the offence
is not represented in terms of data and statistics and the exact modes of perpetration are
still oblivion. There is lack of awareness amongst citizens – possibly due to the
chauvinism of state authorities to disclose ills that affect national dignity and
recklessness.
Co-operation amongst countries need to be fostered to counter this phenomenon, for

instance by uniformity in penal provisions between countries which would be a welcome
consideration to reciprocal enforcement of protection and prevention in trafficking which
is mainly a “cross-border” crime. This uniformity can be achieved through ratification of
international instruments and national implementation of these international humanitarian
instruments relating to trafficking of children.

BIBLIOGRAPHY
BOOKS REFERRED:
1. Gandhi B.M, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd
Edition, 2006.
2. DhirajLal Ratanlal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa,
Nagpur, 13th Edition (Reprint 2004 Edition), 2008.
3. Singh K.K and Bagga R., “Indian Penal Code”, The Law Book Company,
Allahabad, 2nd edition, 1994
4. Mishra S.N., “Indian Penal Code”, Central Law Publications, Allahabad,14th
Edition. 2006.
ONLINE SOURCES:
1. http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-
Ranendra%20Man.ppt. visited on 15 April at 5 PM
2. http://www.indiatogether.org/2006/oct/law-immoral.htm. visited on 15 April at 5
PM
3. http://socialwelfare.delhigovt.nic.in/immoraltraffact1.htm. visited on 15 April at 5
PM
4. http://www.manupatra.com. visited on 15 April at 5 PM

5. http://www.vakilno1.com/bareacts/IndianPenalCode/S366B.htm. visited on 14
April at 8 PM
6. http://www.ewla.org/wf_dl/paper_Devi.doc. visited on 14 April at 8 PM
7. http://ncrb.nic.in/cii2007/cii-2007/CHAP6.pdf. visited on 14 April at 8 PM

REMARKS
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Ms. Gangandeep Malhotra
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Ms. Geetika Walia

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INGREDIENTS OF KIDNAPPING, DIFFERENCE BETWEEN KIDNAPPING

AND ABDUCTION DISCUSSED WITH RECENT CASE LAWS

INGREDIENTS OF KIDNAPPING, DIFFERENCE

1.1 Child Abduction

INDIAN PENAL CODE PROJECT SUBMISSION Page 1

1.3. Ten Conditions, Of Kidnapping In IPC:

INDIAN PENAL CODE PROJECT SUBMISSION Page 2

real difference in the understanding is following.

2.1 Section 359:

The literal meaning of kidnapping is child stealing.

INDIAN PENAL CODE PROJECT SUBMISSION Page 3

2.2 Section 360:

that person, is said to kidnap that person from India.

INDIAN PENAL CODE PROJECT SUBMISSION Page 4

2.3 Section 361:

person from lawful guardianship

INDIAN PENAL CODE PROJECT SUBMISSION Page 5

INDIAN PENAL CODE PROJECT SUBMISSION Page 6

2.4 Section 363:

INDIAN PENAL CODE PROJECT SUBMISSION Page 7

3.1 Section 362:

to go from any place, is said to abduct that person

INDIAN PENAL CODE PROJECT SUBMISSION Page 8

INDIAN PENAL CODE PROJECT SUBMISSION Page 9

4. DIFFERENCE BETWEEN KIDNAPPING AND

1. ‘Kidnapping’ is committed only in respect of a minor under sixteen years of age

INDIAN PENAL CODE PROJECT SUBMISSION Page 10

5. AGGRAVATED FORMS OF KIDNAPPING AND

5.1. Section 363A.

years, and shall also be liable to fine.

INDIAN PENAL CODE PROJECT SUBMISSION Page 11

Child Trafficking22 is an inhumane offence against defenseless and innocent children.

INDIAN PENAL CODE PROJECT SUBMISSION Page 12

5.2. Section 364:

Kidnapping or abducting in order to murder: Whoever kidnaps or abducts any person

in order that such person may be murdered or may be so disposed of as to be put in

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5.3. Section 364-A

Government or any foreign State or international inter-governmental organization or any

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Recent Case Law:

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5.4. Section 365:

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wrongfully confined, shall be punished with imprisonment of either description for a

5.5 Section 366:

be forced or seduced to illicit intercourse shall be punished with imprisonment of either

whoever, by means of criminal intimidation as defined in this Code or of abuse of

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illicit intercourse with another person shall be punished as aforesaid.

1. Kidnapping or abducting of any woman

5.5.1 KIDNAPS OR ABDUCTS ANY WOMAN:

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5.5.3 FORCED OR SEDUCED TO ILLICIT INTERCOURSE:

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Recent case law:

State of Maharashtra v. Gajanan @ Hemant Janardhan Wankhede46

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5.6 Section 366 A:

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extend to ten years, and shall also be liable to fine.