September 17, 2021

Kidnapping And Abduction Under Indian Penal Code (With Differences)

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Introduction

Both serious offenses, kidnapping and abduction are two separate crimes even though they often get lumped together. It’s important, however, to understand the differences between the two and the consequences that come from them. The main difference you should understand about the two crimes is that kidnapping means the victim does not need to be a child. Defendants, however, will receive harsher punishments if the victim is below 14 years of age in a kidnapping. Most people charged with abduction or custodial interference is members of the child’s family, whereas kidnappers can be anyone.

Kidnapping Under Indian Penal Code

Section 359 of the Indian Penal Code deals with what actually ‘Kidnapping’ is. According to this section, kidnapping can be classified into two types ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’. Section 360 of this Code says that when a person is conveyed beyond the limits of India without the consent of the person, the person who takes such person is said to kidnap that person from India. Section 361 of this Code provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, person so enticing will be held liable for kidnapping such minor or person from lawful guardianship. Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.

Case law- State of Haryana v Raja Ram[1]                         

In this case the accused induced the prosecutor who was of 14 years of age away from her lawful guardianship. The Supreme Court in this case held that the persuasion by the accused created a willing on the part of minor who kept her away from her lawful guardianship and therefore it resulted to ‘kidnapping’.

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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Object of this Section

The purpose of this section is to protect minors and persons of unsound mind from being exploited and protect the rights of guardians who have the lawful charge or custody of their wards. Thus absence of consent of the parent or guardian is the main ingredient of this section.

Ingredients

The following are the ingredients of Section 361:

  • Taking away or enticing of a minor or a person of unsound mind

Enticing is inducing hope or desire in the mind of a person to make him do things which he wouldn’t do otherwise. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

The expression used in Section 361, I.P.C. is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, “To cause to go,” “to escort” or “to get into possession”.

  • Such minor must be under 16 years of age if a male and under 18 years of age if a female
  • The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
  • The taking or enticing must also be without the consent of the guardian.

The act of taking is not a continuous act and as such when once the boy or girl has been actually taken out of the keeping, the act is complete.

Case law- Vardargan v. State of Madras[2], in this case court highlighted the dichotomy between ‘taking’ and ‘allowing a minor to accompany a person’. Stating that the two are not synonymous held that where the minor having capacity to understand the consequences of her actions voluntarily joins the accused on her free will, the accused cannot be held liable for taking her away from the keeping of lawful guardian.

Case law- Pradeep Kumar v. State of Bihar and Anr[3], in this case Supreme Court held that the consent obtained by lying to the father of the girl regarding the purpose of taking his minor daughter away cannot be termed as consent under the purview of this section and such taking away would amount to kidnapping.

In the most basic sense, kidnapping means taking another person against their will to an undisclosed location. Although the title may cause some confusion, this crime does not have a minimum age. The authorities also consider adults taken against their will as kidnapped. Someone may kidnap another for ransom or to further another crime.

Abduction under Indian Penal Code

Abduction has been defined under Section 362 of the Indian Penal Code which states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Case law- Bahadur Ali v King Emperor[4]

In this case the accused misrepresented himself as a police constable and kept a girl in his house for certain time regarding money. The court in this case held that his act amounted to abduction.

In the offence of abduction there must be on the part of the offender either an element of compulsion by force or an element of inducement by deceitful means. The word ‘force’ has the same meaning as given under section 349 of the Code. To induce means to lead into; there must be an active suggestion on the part of the abductor making the victim to agree to move to a place where he would not go but for this suggestion.

A change of mind of the victim takes place in cases of inducement. The expression ‘deceitful means’ suggests that the means employed by the offender must be such as to practice deception on the victim. The expression has a wide import and includes a misleading statement.
Mere abduction has not been made punishable under any section of the Code. In other words, abduction by itself is not an offence. It is punishable only when it is coupled with one or the other intent as stated in certain subsequent sections. In cases of abduction committed by compulsion by force actual force must be used and a mere threat of use of force is not enough.

Difference between Kidnapping and Abduction

1. Age of Aggrieved Person

In case of Kidnapping, it is committed only in respect of a minor i.e. the age of the aggrieved person as per the Section 361 of the IPC is 16 in case of males and 18 in case of females or the person of unsound mind as can be seen in the case of State of Haryana v Raja Ram.

Whereas,

In the Abduction, It is committed in respect of any person of any age. There is no bar to any specific age of person, i.e. there is no such thing as age specified. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be charged with abduction as can be seen in the case of Bahadur Ali v King Emperor.

2. Removal from Lawful Guardianship

The person kidnapped is removed from the lawful guardianship. Here the lawful guardianship shall include any person who has been authorized by law to take care of the person who has yet not attained the age of majority. A lawful guardian may be the parents, in-laws, etc. A child without a guardianship can’t be kidnapped. Kidnapping takes into consideration the age of the person being kidnapped, the crime involves the taking away from the guardianship of a lawful person who has been authorized by law to take care of such minor.

Whereas,

Guardianship is immaterial to determine the offence of abduction. It has reference exclusively to the person abducted. Abduction considers only the person who has been abducted; lawful guardianship does not come into the picture.

3. Means used

In kidnapping, the minor is simply taken away. The means used to kidnap a child may be innocent. Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.

Whereas,

The means used in case of abduction may be force, compulsion, or deceitful means. The means employed in abduction are force, compulsion or deceitful methods.

4. Consent

In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent. Consent of the person enticed is immaterial. The consent obtained from the person shall be a tainted one for example in the case of State of Haryana v Raja Ram.

Whereas,

In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her. Consent of the person matters i.e. if a person is removed with free consent in that case offence of abduction is said to be not committed.

5. The intention of the Accused

In Kidnapping the intent of a person is immaterial i.e. he would be liable in all the circumstances irrespective of the valid motive and good intention. The intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused as observed in the case of Queen v Prince.

Whereas,

In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person. Intention is very important to determine the offence. Hence, a person would be liable only if there is ill intention behind the act.

6. Continuity of the Crime

Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship. The offence is completed as soon as the minor is removed from the custody of his or her/his guardian.

Whereas,

Abduction is a continuing process and in this the person so abducted is removed from one place to another. The offence is in continuation as the place of the abducted person changes from one to another.

7. Kind of offence

Kidnapping from guardianship is a substantive offence, punishable u/s 363, IPC.

Whereas,

Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused.

 

Punishment For Kidnapping And Abduction

Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine. Some specific punishments as provided for kidnapping under the Indian Penal Code are:

  • Kidnapping for purpose of begging- section-363A, punishment- 10 years + Fine
  • Kidnapping in order to murder- section 364, punishment- 10 years + Fine
  • Kidnapping for ransom- section 364A, punishment 10 years + Fine
  • Kidnapping with intent to wrongfully confine a person- section 365, punishment 7 years + Fine
  • Kidnapping so as to compel a woman to marry- section 366, punishment 10 years + Fine
  • Kidnapping so as to subject a person to grievous hurt- section 367, punishment 10 years + Fine
  • Kidnapping a child under 10 years of age in order to steal from a person- section 369, punishment 7 years + Fine

Abduction is only an auxiliary act and is not punishable in it. Therefore, there is no general punishment for abduction in the Indian Penal Code.

But some specific types of abduction attract the following punishments:

  • Abduction in order to murder- section, punishment 10 years + Fine
  • Abduction with intent to wrongfully confine a person- section, punishment 7 years + Fine
  • Abduction so as to compel a woman to marry- section, punishment 10 years + Fine
  • Abduction so as to subject a person to grievous hurt- section, punishment 10 years + Fine
  • Abducting a child less than 10 years of age in order to steal from a person- section, punishment 7 years + Fine

[1] State of Haryana v Raja Ram (2017) 8 SCC 570

[2] S. Varadarajan VsState of Madras [​1964] INSC 191

[3] Pradeep Kumar Verma Vs. State of Bihar and Anr [2007] Insc 834

[4] Jagat Bahadur Singh Vs. State of Madhya Pradesh [1965] INSC 270

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