Section 363- Punishment for Kidnapping.
Kidnapping is such a term we all are familiar with. In our day to day lives, we use this term very often, but there is a lot more to know about Kidnapping.
Section 363 IPC talks about the punishment as provided under the Indian Penal Code for committing the offence of Kidnapping.
The punishment as given under sec 363 IPC reads as, “Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Hence, the definition clears that there are two kinds of kidnapping. This sec 363 provides punishment for the offence of kidnapping from India and from lawful guardianship as well. The forms of kidnapping are defined under section 360 and 361 of the IPC.
As stated above, this section provides punishment for the offences stated in section 360 and 361, we need to figure out what is mentioned under these two sections.
Section 360 states the offence of kidnapping from the territory of India. The offence under this section may be committed in respect of any person, male or female, major or minor and irrespective of his nationality.
To hold a person guilty under section 363 Indian Penal Code for committing kidnapping as defined under section 360, followings ingredients must be present:
Kidnapping from India
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The victim kidnapped was residing in India at the time of the offence.
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Accused committed the offence of enticing the person kidnapped
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The kidnapping was without the consent of the victim or of someone legally authorised to give the consent.
And for committing kidnapping as defined under section 361, essential ingredients that must be there are:
Kidnapping from the Lawful Guardianship
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The victim kidnapped was a minor being below the age of 16 in case of a male, and below 18, in cases of a female.
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The victim kidnapped was in the keeping of a lawful guardian
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Accused took or enticed away from the victim from such keeping of the lawful guardian
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Accused did so without the consent of the lawful guardian.
The offence under this section becomes punishable and falls under the ambit of section 363 IPC, when a person conveys any person beyond the limits of India, without the consent of that person or of someone legally authorised to give consent on behalf of that person.
The act committed under this section becomes liable to punishment under section 363 IPC if it follows the essential elements required to complete the offence of kidnapping. As stated earlier, when the person kidnapping succeeds to convey the person. Here, convey literally means going together or without any objection.
The offence committed here would not be said to be completed and would not be punishable under Indian Penal Code section 363 until the person reaches not only the foreign territory but to his destination as well.
For the purpose of holding a person liable under IPC 363, mere conveying a person from one place to another is not criminal. This sort of act becomes criminal and punishable under IPC Section 363 if he is conveyed without his consent. Similarly, a consent loses its essential elements if it is given under fear or in which cases it would be rather considered as submission and not consent.
Moving further with the other form of kidnapping which is defined under section 361 and is also punishable under section 363 Indian Penal Code. Here, this section is so designed to protect the rights and privileges of parents and guardians having the lawful charge or we can also say the custody of their wards or any person with whose lawful custody, they are entrusted with.
The act committed under section 361 becomes punishable under 363 IPC section depending totally on the gravity of the ‘taking’ or ‘enticing’ in the kidnapping so committed.
Also, it is the notable point, here the consent of the child makes no sense and is no exception if the child giving the consent is a minor. The person will be held liable for sec 363 Indian Penal Code.
Also, an exception is provided in this section, which protects the person from becoming liable under 363 IPC. It is, this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
Further, extending the scope of Sec 363 of IPC, section 363A was inserted by the Indian Penal Code (Amendment) Act, 1959, section 2 (52 of 1959) (pdf) and came into force with effect from 15th January 1960.
As defined under the code, section 363A provides punishment for the “Kidnapping or maiming a minor for purposes of begging.”
This section aims at punishing the persons who have been known to organise begging as an industry and survive on the ill- gains obtained from the practice of begging. Also, it states the meaning of what the term ‘maiming’ means. Maiming, in general, is a very serious offence. It means cutting off or disabling or weakening a person’s hand, or finger, or striking out his eyes, or foretooth or depriving him of those parts, the loss of which cripples the man.
The punishment provided under section 363A for kidnapping a child for the purpose of begging is imprisonment for 10 years. Also, it is a Cognizable and non-bailable offence, triable by the Magistrate of the first class.
Further, the punishment for kidnapping a child for the purpose of maiming is imprisonment for life and fine. It is also a cognizable and non-bailable offence, triable by Court of Session.
Lastly, summing up with the definition, kinds, a social menace and ambit and scope of section 363 Indian Penal Code. The term of punishment for committing the offence of kidnapping as provided under IPC 363 is 7 years of imprisonment and fine. Depending upon the facts and circumstances of every case, IPC sec 363 is a Cognizable and bailable offence. Cases pertaining to kidnapping are triable by the Magistrate of the first class.
