KIDNAPPING AND ABDUCTION UNDER PENAL CODE

byDr. Aspalella A. Rahman

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INTRODUCTIONOffences that affect a person’s freedom of

movement include:i. Wrongful restraint;ii.Wrongful confinement;iii.Kidnapping and abduction; andiv.Hostage- taking

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Wrongful restraints339-whoever voluntarily obstructs any

person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person.

s341- punishment for wrongful restraini.e. imprisonment up to one month OR max fine

RM1000 OR both.

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Wrongful Confinements340- whoever wrongfully restrains any

person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said to wrongfully confine that person.

s342- punishment for wrongful confinement i.e. imprisonment up to one year, OR fine

max RM2000 OR both.See PR v Isa bin Johnit [1994] 3 MLJ 218

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KIDNAPPINGPenal Code provides two forms of

kidnapping:i. s.360- Kidnapping from Malaysia; andii.s.361 -Kidnapping from lawful guardianshipThese sections are not exhaustive as there

may be cases in which the two kinds overlap each other.

s.363- Punishment for kidnappingi.e. max 7 years imprisonment AND fine.

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KIDNAPPING ACT 1961provide for the detection and punishment of

the offences of abduction, wrongful restraint and wrongful confinement for ransom and other related offences and for matters incidental thereto.

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Kidnap from Malaysias360-whoever conveys any person beyond the

limits of Malaysia without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from Malaysia.

The essence of the offence is the conveyance of the victim beyond the territory of Malaysia without the victim’s consent or of a person legally authorised to consent on his behalf, where a person is unable to give a valid consent.

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Cont’See s90 PC- circumstances when a consent

can be an improper consent.i.e. when the consent is given under fear or

misconception and consent of a child or person of unsound mind.

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Case;Peraiswami Kangani [1910]MWN 11 Cr LJ 368The accused induced some women to leave India for Ceylon on the promise that they were to be married to his sons. H/e after arriving in Ceylon, they were made to work as labourers on his tea plantations.Held: The women were taken to Ceylon without their consent and that they were kindapped from India.

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Kidnap from lawful guardianships361- whoever takes or entices any minor

under 14 years of age if a male, or under 16 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.

‘lawful guardian’ includes any person lawfully entrusted with the care or custody of such minor or other person. i.e. no need formal entrustment. May include the mother/ adopted family.

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Exception: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.

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Cont’S361 is the offence of taking or enticing of a

minor or a mentally incapacitated person out of the keeping of his or her lawful guardian.

The essence of the offence is the taking or enticing of the victim out of the keeping of the lawful guardian.

It must be shown that the accused took some actual step, by persuasion or otherwise to cause the person to leave home.

‘taking’ means a physical taking.

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Jagan Nath [1914] AIR 126A father had sent his daughter to live with another married daughter of his, who then, without the father’s consent, had her married to an inmate of the house.Held: An offence of kidnap had not been committed as there was no taking her out of the keeping of the lawful guardian as she had not left the house of the married daughter, where she was living with her father’s consent.

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Cont’Acc to Ratanlal & Dirajlal, if a minor suggests

to the accused to go away with her and the acsused only takes the passive part of yielding to the suggestion, it is not taking.

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Cont’‘entice’ refers to the idea of inducement by

exciting hope or desires in the other.The offence of kidnapping from lawful

guardian is complete when the minor or incapacitated person is taken out of the keeping of the lawful guardian.

The distance of the taking is not material.Chhajju Ram’s caseHeld: a taking occurs even if the accused takes a minor without the consent of the guardian to a distance of 20-30 yards.

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Cont’The period of detention is also not material.Timmin’s case

The accused took a girl away not with a view to keeping her permanently away from home but in order to gratify his passion for three days and then, allowed her to return home.Held: Guilty of the offence.

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Neelakandan v PP [1956] MLJ 206A 15 yrs old girl cheated her mother and

went out with his boyfriend and had sex with him. The parents had not consented to her to be out with the boyfriend. The accused was convicted under s363 PC and he appealed.

Held: The offence was committed if the taking was without the consent of the lawful guardian. The consent of the girl was immaterial and it was not necessary that the accused should make use of force or fraud.

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Cont’It is not a defence that the accused did not

know of the victim’s age or that from the appearance, the accused thought that the victim was of greater age.

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Abductions362- whoever by force compels or by any deceitful

means induces any person to go from any place is said to abduct that person.

‘by force compel’ indicate the actual use of certain physical force in compelling the victim to move from one place to another place against the victim’s will.

The prosecution has to prove that the taking away of the child was by compulsion.

‘by deceitful means induce’ indicate some allurement or inducement done to lead a person to some direction in which he would not otherwise have gone but for the allurement or inducement.

The offence of abduction is not a substantive offence per se.

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Aggravated OffencesWhere kidnapping or abduction with the following

intention.1. s364- kidnapping or abduction in order to

murder.Punish with death or max 30 yrs imprisonment AND whipping.

2. s365- kidnapping or abduction with intent secretly or wrongfully to confine a person.

Punish with max 7 yrs imprisonment AND fine.Case: PR v Wong Shew Choong [2008] 4 AMR 717

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Cont’s366- kidnapping or abduction of a woman to

compel marriage, illicit intercourse or a life of prostitution.

Punish with max 10 yrs imprisonment AND fine.

Case: Wahab bin Osman v PR [2002] 7 MLJ 48Held: the prosecution had to prove:1)The A had kidnapped or abducted the woman;

and2)The kidnapping or abduction was done with the

intention to compel the woman to marry the A. Once the intention can be proven, the offence was completed.

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Cont’s367- kidnapping or abduction in order to

subject a person to grievous hurt, slavery or unnatural lust.

Punish with max 10 yrs imprisonment AND fine.

s369 - kidnapping or abducting a child under 10 yrs old with intent to steal moveable property from the person of such child.

Punish with max 7 yrs imprisonment AND fine.

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