Pocket Notes

Abduction and Kidnapping

The word ‘Crime’ in simple terms refers to an action or omission which is punishable by law. In India, The Indian Penal Code is the official criminal code of India. The First Law Commission chaired by Thomas Babington Macaulay in 1834, prepared the draft of the Indian Penal Code and was submitted to Governor-General of India Council in 1835. Indian Penal Code, Law of Evidence and Criminal Code of Procedure form the Criminal Manual.

The IPC covers the substantive aspect of Law. Substantive law refers to a statutory law that deals with the legal relationship between people or the people and the state. Procedural law on the other hand is that aspect of law which comprises the set of rules that govern the proceedings of the court in criminal as well as civil and administrative proceedings.

 The IPC is divided into XXIII Chapters. Chapter XVI, Section 299-377, deals with offences affecting the Human Body.

Kidnapping

The word kidnapping refers to unlawful taking away or conveying of a person and wrongfully confining the person against his or her will. In India, Kidnapping is of 2 types as mentioned under Section 359 of the IPC: kidnapping from India and kidnapping from lawful guardianship.

  • Section 360 – Kidnapping from India.
    Whoever conveys any individual past the restrictions or limits of India without the consent of that individual, or of some individual legitimately authorized to give consent in the interest of that individual, is said to kidnap that individual from India.  
  • Section 361 – Kidnapping from lawful guardianship.
    Whoever takes or allures any minor under 16 (sixteen) years old if a male, or under 18 (eighteen) years old if a female, or any individual of unsound mind, out of the keeping of the legal guardian of such minor or individual of an unsound mind, without the assent of such guardian, is said to kidnap such minor or individual from legal guardianship.

Explanation
The words ‘lawful guardian‘ in this section includes any person lawfully entrusted with the care of custody of such minor or another person.

Exception
This section does not extend to the act of any person who is good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be authorized to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.

Illustration
Anna, a minor girl was kidnapped by Abdul from the lawful guardianship of Geetanjali (without consent) and was taken to London, in such a case Abdul will attract Section 360 and 361 of the IPC.

Essential Elements

  • Minor Person or a Person of Unsound Mind
    Section 361 clearly defines the age of a Minor. For males, Anyone under the age of 16 is considered a minor and for females, anyone under the age of 18 is considered a minor.
  • Taking and Enticing
    The word taking refers to escort with or without the use of force. The word enticing means alluring or tempting.

Illustration
Bablu (with the intention of kidnapping) tells Aashika, a minor girl, come with me and I will give you a chocolate. Here, Aashika might go with Bablu wilfully. This would still amount to kidnapping.

  • Out of the keeping of the lawful guardian
    The word keeping refers to the protection/care/maintenance of the lawful guardian. The term ‘Lawful Guardian’ ( and not Legal Guardian) expands the scope of this guardianship. Lawful Guardians may include grandparents or other relatives and even teachers.
  • Consent
    Here the word Consent refers to the consent of the Lawful Guardians since the consent of a minor is not valid consent.

Punishment for the offence of Kidnapping

Section 363 provides for the Punishment for the offence of kidnapping. Section 363 states, ‘Whoever kidnaps any person from India or from legal guardianship, is liable to be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to pay the fine.

Abduction

Abduction refers to the action of forcibly taking someone away against their will. Section 362 of the IPC states, ‘Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.’ Abduction pure and simple is not an offence but when it is accompanied by a certain intention to commit another offence, it per se becomes punishable as an offence.

Illustration
Jagmal takes Pratap away from his house to a factory, against Pratap’s consent with the knowledge that Pratap would be sacrificed to a deity. Jagmal is guilty of abduction for murder.

Essentials

  • Force and/or by Deceitful means
    Here the term force does not refer to mere threat to show force but actual use of force.
  • To go from any place
    Since Abduction is a continuing offence, the movement of the person being abducted is necessary. An individual is forced to go from one place to another, against his/her will.

Punishment for the offence of Abduction

Abduction is an ancillary offence; it does not have a common or general punishment prescribed in the IPC.

Difference between Kidnapping and Abduction

Differences Kidnapping Abduction
Sections Section 359 of IPC defines the types of kidnapping. Section 360 defines kidnapping from India and  Section 361 defines kidnapping from lawful guardianship. Section 362 of IPC defines Abduction
Punishment Section 363 of IPC states imprisonment for a term up to seven years and a fine in case of Kidnapping Abduction is an auxiliary offence when it is accompanied by a certain intention to commit another offence, then it becomes punishable as an offense
Age In the case of females under 18 years of age and for a male under 16 years of age. The age has not been prescribed by any provision
Intention Intention is immaterial To determine the guilt of the accused, intention is crucial
Removal from lawful guardianship Lawful guardian refers to a person who is legally authorised to take care of a minor or a person of unsound mind. In abduction, there is no concept of taking a person away from his/her lawful guardian.
Continuity of the offence Kidnapping is not a continuing offence. Abduction is a continuing offence because it does not end when a person is moved from a particular place, rather continues with every movement from one place to the other.
End of the offence. As soon as a person is taken away from the country or from his/her lawful guardianship, the offence of kidnapping is said to be complete It is a continuing offence and involves forcibly or deceitfully taking a person from one place to another

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