KIDNAPPING AND ABDUCTION UNDER PENAL CODEby Dr. Aspalella A. Rahman 1 INTRODUCTION Offences that affect a person’s freedom of movement include: i. Wrongful restraint; ii. Wrongful confinement; iii. Kidnapping and abduction; and iv. Hostage- taking 2 3 .Wrongful restraint s339-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. imprisonment up to one month OR max fine RM1000 OR both.e. s341.punishment for wrongful restrain i. imprisonment up to one year.whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits.e.Wrongful Confinement s340. See PR v Isa bin Johnit [1994] 3 MLJ 218 4 . s342.punishment for wrongful confinement i. is said to wrongfully confine that person. OR fine max RM2000 OR both. 5 . i.363.KIDNAPPING Penal Code provides two forms of kidnapping: s.361 -Kidnapping from lawful guardianship These sections are not exhaustive as there may be cases in which the two kinds overlap each other. s.Kidnapping from Malaysia.Punishment for kidnapping i. s.e. and ii.360. max 7 years imprisonment AND fine. wrongful restraint and wrongful confinement for ransom and other related offences and for matters incidental thereto.KIDNAPPING ACT 1961 provide for the detection and punishment of the offences of abduction. 6 . Kidnap from Malaysia s360-whoever conveys any person beyond the limits of Malaysia without the consent of that person. is said to kidnap that person from Malaysia. where a person is unable to give a valid consent. 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. or of some person legally authorised to consent on behalf of that person. 7 . e.Cont’ See s90 PC. when the consent is given under fear or misconception and consent of a child or person of unsound mind.circumstances when a consent can be an improper consent. i. 8 . they were made to work as labourers on his tea plantations. 9 . Peraiswami Kangani [1910]MWN 11 Cr LJ 368 The accused induced some women to leave India for Ceylon on the promise that they were to be married to his sons. Held: The women were taken to Ceylon without their consent and that they were kindapped from India. H/e after arriving in Ceylon.Case. no need formal entrustment.Kidnap from lawful guardianship s361. i.e.whoever takes or entices any minor under 14 years of age if a male. May include the mother/ adopted family. without the consent of such guardian. ‘lawful guardian’ includes any person lawfully entrusted with the care or custody of such minor or other person. 10 . or under 16 years of age if a female. is said to kidnap such minor or person from lawful guardianship. out of the keeping of the lawful guardian of such minor or person of unsound mind. or any person of unsound mind. unless such act is committed for an immoral or unlawful purpose.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. 11 . by persuasion or otherwise to cause the person to leave home. ‘taking’ means a physical taking. The essence of the offence is the taking or enticing of the victim out of the keeping of the lawful guardian.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. 12 . It must be shown that the accused took some actual step. without the father’s consent. 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. 13 . had her married to an inmate of the house. who then.Jagan Nath [1914] AIR 126 A father had sent his daughter to live with another married daughter of his. where she was living with her father’s consent. 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.Cont’ Acc to Ratanlal & Dirajlal. 14 . The distance of the taking is not material.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. Chhajju Ram’s case Held: a taking occurs even if the accused takes a minor without the consent of the guardian to a distance of 20-30 yards. 15 . Cont’ The period of detention is also not material. 16 . 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. Held: Guilty of the offence. allowed her to return home. The accused was convicted under s363 PC and he appealed. 17 .Neelakandan v PP [1956] MLJ 206 A 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 consent of the girl was immaterial and it was not necessary that the accused should make use of force or fraud. Held: The offence was committed if the taking was without the consent of the lawful guardian. the accused thought that the victim was of greater age.Cont’ It is not a defence that the accused did not know of the victim’s age or that from the appearance. 18 . The prosecution has to prove that the taking away of the child was by compulsion. 19 .whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person. The offence of abduction is not a substantive offence per se.Abduction s362. ‘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. ‘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. 2.kidnapping or abduction with intent secretly or wrongfully to confine a person.kidnapping or abduction in order to murder. Punish with max 7 yrs imprisonment AND fine.Aggravated Offences Where kidnapping or abduction with the following intention. s365. s364. 1. Case: PR v Wong Shew Choong [2008] 4 AMR 717 20 . Punish with death or max 30 yrs imprisonment AND whipping. illicit intercourse or a life of prostitution. Punish with max 10 yrs imprisonment AND fine. the offence was completed.kidnapping or abduction of a woman to compel marriage.Cont’ s366. and 2) The kidnapping or abduction was done with the intention to compel the woman to marry the A. 21 . Once the intention can be proven. Case: Wahab bin Osman v PR [2002] 7 MLJ 48 Held: the prosecution had to prove: 1) The A had kidnapped or abducted the woman. Punish with max 10 yrs imprisonment AND fine.kidnapping or abducting a child under 10 yrs old with intent to steal moveable property from the person of such child. s369 .Cont’ s367. Punish with max 7 yrs imprisonment AND fine. 22 . slavery or unnatural lust.kidnapping or abduction in order to subject a person to grievous hurt.