KISHAN DUTT RETD JUDGE
(Expert) 29 April 2018
Dear Sir, Following is the wonderful judgment on this point. Please visit the link also ================================================================================ Kidnapping Of Child A Bailable Offence Under IPC Becomes Non-Bailable Under JJ Act: A Discussion By Rakesh Kumar Singh...
In the present paper, we will discuss the effect of newly enacted Juvenile Justice (Care and Protection of Children) Act, 2015 vis a vis offences related to kidnapping and abduction as envisaged in IPC, 1860. We know that kidnapping of a child below certain age (different for male & female) from lawful guardian is an offence punishable upto 7 years imprisonment but... is a bailable offence. Prime issue herein is whether the enactment of new JJ Act which covers every persons under 18 years of age irrespective of gender affects the nature of offence of kidnapping. A purposive reading of JJ Act will go to show that it really affects the kidnapping provisions of IPC on crucial aspects....
There are some provisions of JJ Act such as Section-84, 85, 86 which need consideration. Section-84 deals with kidnapping of child and reads as under: “For the purposes of this Act, the provisions of sections 359 to 369 of the Indian Penal Code, , shall mutatis mutandis apply to a child or a minor who is under the age of eighteen years and all the provisions shall be construed accordingly”
===================================================================================================== IPC Chapter XVI S. 363 Punishment for kidnapping Description 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. Classification u/schedule 1 CrPC Offence Punishment Kidnapping 7 Years + Fine Cognizance Bail Triable By Cognizable Bailable Magistrate First Class Composition u/s 320 CrPC Offence is NOT listed under Compoundable Offences IPC Chapter XVI S. 363 A Kidnapping or maiming a minor for purposes of begging Description 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 purposes 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. Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine. Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes 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. In this section “begging” means: soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise; entering on any private premises for the purpose of soliciting or receiving alms; exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; using a minor as an exhibit for the purpose of soliciting or receiving alms; “minor” means: in the case of a male, a person under sixteen years of age; and in the case of a female, a person under eighteen years of age. Classification u/schedule 1 CrPC Offence Punishment Kidnapping or obtaining the custody of a minor in order that such minor may be employed or used for purposes of begging Maiming a minor in order that such minor may be employed or used for purposes of begging 10 Years + Fine. Imprisonment for Life + Fine Cognizance Bail Triable By Cognizable Cognizable Non-Bailable Non-Bailable Magistrate First Class Court of Session Composition u/s 320 CrPC Offence is NOT listed under Compoundable Offences
(Expert) 29 April 2018
You are the biological father of child. Approach/Meet DCP, CP, DGP .. And more importantly lean on your own very able LOCAL senior counsel of unshakable repute and integrity specializing in Family/criminal matters and well versed with LOCAL applicable rules/laws/precedence’s and having successful track record…. and worth his/her salt
It is clear that you do not want to take help of your community leaders etc and pick up your child from unjustified custody ……… and entangle into any altercation with aggressive in laws that can commit transgression.
(Expert) 30 April 2018
I agree with experts. But you can also file;e Habeas corpus writ against your/brother and Mother in law in law. in High court to get back custody of your child. It is only th Private writ enforceable against a private person.