August 1, 2020

Kidnapping and Abduction

By Indian Legal Solution Legal Articles 0 Comments

Kidnapping and Abduction

Author: Amisha Jain

INTRODUCTION:

Kidnapping and Abduction are particular types of offences against the human body. They are defined under Sec. 359 to 374 of Indian Penal Code, 1870. Under these offences a person is taken away secretly or forcibly against the will of the person or against the will of the lawful guardian.

KIDNAPPING:

kidnapping is derived from the word ‘kid’ which means a child and ‘napping’ means stealing, which literally means that child-stealing. In other words, kidnapping means taking away of a person from the lawful custody by the means of unnecessary force or threat against the will of such person or against the will of the person who is legally authorized to give his consent on behalf of such person.

According to Sec. 359 of Indian Penal Code, 1860 . It is of two types:

Kidnapping from India
Kidnapping from lawful Guardianship.

Kidnapping from India (Sec. 360):

According to this section, “Whoever conveys any person beyond the limits of India 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 India.”

Essential elements of this Section:

Taking away of such person beyond the local limits of India,
Such a conveyance must be against the will of the person or against the will of their lawful guardian of that person.

Illustration: ‘A’ is a minor who was kidnapped by ‘B’ from his lawful guardian ‘C’ without his consent and taken ‘A’ beyond the local limits of India. Therefore in such case Sec. 360 and Sec. 361 of Indian Penal Code,1860 comes into force.

Kidnapping from Lawful Guardianship (Sec. 361):

According to this Section,

“Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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.”

Explanation: The word ‘Lawful Guardianship’ here includes any person who has been legally authorized with the care and custody of such minor person or person of unsound mind.

Exception: this Section does not apply to any person who in good faith assuming himself the father of an illegitimate child or who in good faith assuming himself the owner of the lawful custody of that child unless the act is done for any immoral or unlawful purpose.

Essential elements of this Section:

Taking or enticing: The word ‘takes’ here means that to escort or to get someone into their possession, the word takes does not necessarily mean taking someone by force. While ‘enticing’ means to induce such person for going to some other place.
A minor or any person of Unsound mind: The person kidnapped must have attained the age of majority i.e, 16 years if a boy and 18 years if a girl. The person with an unsound mind here means that the person should have permanent unsoundness and not temporary. This Section is to protect the minor and unsound persons from being induced for immoral and illegal practices.

Case: State of Haryana v. Raja Ram

In this case, the accused induced a 14-year-old girl and took her out of the keeping of her lawful guardian. Thus, SC held that persuasion by the accused to attract minors to be taken out of the custody of lawful guardians would amount to kidnapping.

Out of the keeping of lawful Guardianship: The word ‘keeping’ merely means that within the care and custody of the lawful guardian. It is not necessary to be in physical possession of the guardian.

Case: Vardargan v State of Maharashtra

In this case, the court highlighted the difference between ‘taking’ and ‘allowing a minor to accompany a person’. The court stating these two are not synonymous with each other and it was held that where the minor has the capacity to understand the nature and consequences of his act and voluntarily joins the accused. Therefore, the accused cannot be held responsible for taking away the minor from the care and custody of the lawful guardian. And thus, it would not amount to kidnapping.

Without the consent of Lawful Guardian: In this Section the consent that matter is only of the lawful guardian, the consent of minor is immaterial or of no use.

Case: Pradeep Kumar v. State of Bihar

In this case, it was held that consent acquired by the father of the girl by lying him the purpose of taking his minor daughter cannot be considered as consent under the scope of this Section, and such act would amount to kidnapping.

Punishment for kidnapping (Sec. 363):

According to this Section,

“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, or with fine or with both.”

ABDUCTION:

An Abduction is defined as an offence against a person in which such person is forcibly taken away and moved to some other place, against the will of such person. Abduction is defined under Sec. 362 of the Indian Penal Code, 1860. Which states that,

“Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.”

Essential elements of Abduction:

Forcibly compelling or inducing by deceitful means: Abduction involves taking away of a person by the means of force or fraud.

Case: Bhahdur Ali v. King Emperor

In this case, the accused represented himself as a police constable and kept a girl in his own house and provide her with a ransom of Rs. 600. The court in this case held that such an act of the accused would amount to Abduction.

Case: Bhanukan’s Case

In this case, a 16-year-old girl had gone out with the accused to have sexual intercourse, it was observed that the girl was not compelled by force or any deceitful means and hence the court held that it would not amount to Abduction as no force or undue influence was used upon her.

Going of a person from one place to another: When a person is compelled to move from one place to another with force or fraud or by deceitful means amounts to an offence under this Section.

Case: State of Assam v. Goljer Ali and 9 ors.

In this case the deceased was offered a puff of bidi and was therefore induced to go to the house of the accused where he was beaten to death. The court in this case states that Abduction contemplates both use of force or inducement by deceitful means and thus, the act of accused would amount to Abduction.

Case: Gurucharan Singh v. State of Haryana

In this case, the accused threatened the prosecutrix with the pistol and force her to go with him to other place. The court in this case held that the act of accused amounts to Abduction.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Basis	Kidnapping	Abduction
Provision	Kidnapping is classified into two categories according to sec. 359 of IPC, 1860 as Kidnapping from India and kidnapping from lawful Guardianship .	Abduction has been defined under sec. 362 of the IPC, 1860.
Object	Kidnapping involves taking on enticing a minor or person of unsound mind.	Abduction involves taking away of a person by means of fraud or force.
Nature	Kidnapping is a substantial act and punishable under sec. 363 of the IPC.	Abduction is an auxiliary act and it is not punishable unless the act is done with ill or criminal intent.
Age	Kidnapping involves the person who is a minor or of unsound mind	Abduction can be done towards all person.
Intention	Intention of a person is not important under kidnapping	Intention plays a vital role in Abduction, an act is offensive only when it is committed with criminal intent.