Table of Contents
INTRODUCTION
Kidnapping and Abduction are crimes under the Indian Penal Code, of 1860. It talks about the forcefully taking of a person or a child (from guardianship) with or without consent for that matter. Both offenses are given under Chapter 26 – Offences affecting the Human Body, particularly from sections 359 to 366 of the Indian Penal code.
Kidnapping
Kidnapping as the word suggests is the act of stealing a child. Under section 360 of the Indian penal code,1860 there are two types of kidnapping i.e. Kidnapping from India and Kidnapping from lawful guardianship. But there may be cases when both kinds can overlap each other. Kidnapping may be done to demand ransom in exchange for releasing the victim, or for other illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the crime to aggravated kidnapping.
Abduction
The literal meaning of abduction is forcibly taking someone away against their will. Abduction is defined as u/s 362 of IPC. This section merely defines the word ‘abduction’, which occurs in some of the penal provisions that follow. There is no such offense as abduction under the code, but abduction with certain intent is an offense. Force or fraud is essential.
As per SECTION 359 of IPC, Kidnapping is of two types:
- Section 359: Kidnapping
Kidnapping is of two kinds: Kidnapping from India, and kidnapping from lawful guardianship. But these both types can overlap each other.
For example ‘A’ a minor boy was kidnapped by ‘B’ from the lawful guardianship of ‘C’(without his consent) and taken ‘A’ to beyond the limit of India. Hence, this act will attract the provisions of sec. 360 & 361 of IPC.
- Section 360: Kidnapping from India
Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.
Essentials of sec. 360 are: –
- Conveying any person beyond the limit of India:- The person who is kidnapped can be a major or a minor to attract the provision of this section. In the case of minors, the age limit is 16 for boys and 18 for girls. Further India means the territory of India excluding the state of Jammu and Kashmir as per sec. 18 IPC.
- Such Conveying must be without the consent of that person: – The age of a person is deciding factor to determine the offense, but consent is also relevant in the case of a major person. For example, if a person has attained the age of majority and has given his free consent to his being conveyed, no offense is committed. Consent is irrelevant in the case of minors.
- Section 361: kidnapping from lawful guardianship
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 a such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation. —The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or another person.
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.
Essentials: –
- Taking or Enticing: – the word ‘takes’ means to cause to go, to escort, or to get into possession; it does not imply force, actual or constructive. The word ‘entice’ involves an idea of inducement by exciting hope or desire in the order. One does not entice another unless the latter attempts to do a thing that he or she would not otherwise do. This is the key difference between taking and enticing. For example, Persuasion by the accused person which creates a willingness for the art of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the provision of this section. Moreover, duration is immaterial in this section.
- A minor or any person of unsound mind: – the person kidnapped must be a minor i.e. a boy under the age of 16 and a girl under the age of 18 or must be a person of unsound mind. The unsoundness of the mind should be permanent and not temporary insanity produced due to alcoholic excess or other reason. For example, when a girl aged 20 years had been made unconscious from datura poisoning when she was taken away, it was held that the accused was not guilty of kidnapping because the girl could not say to be of unsound mind.
- Out of the keeping of lawful guardian: -the word ‘Keeping’ simply denotes that a minor is within the due care and protection of the guardian. It is not necessary that a minor should be in the physical possession of the guardian. It would be enough if a minor is under continuance control which is for the first time terminated by the act of the offender. moreover, there is a difference between legal guardians and lawful guardians. When a father sends his son to school, here father is a legal guardian, and a servant or friend is a lawful guardian for that matter.
- Without the consent of such guardian: -The act of taking or inciting a minor to keep him/her out of the custody of the guardian should be done with free consent as per section 90 of IPC. The consent of the minor is irrelevant. The consent can be implied and need not be expressed. In addition to that, if consent is obtained after the commission of an offense so can’t be used as a good defense. Hence, it is immaterial.
Punishment
The provision for punishment of kidnapping is given under section 363 which says 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 a fine or with both.
As per SECTION 362 of IPC, Abduction
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Essentials of Section 362
- Abducting by use of force or any deceitful means: – The abduction should be done by compelling or inducing a person by use of force or deceitful means. The expression of force means consent obtain by force or use of force to commit abduction. Whereas, the expression deceitful means includes any misleading statement. The intention of the offender is the deciding element of the offence.
- Taking of a person from one place to another: – In order to commit the offense of abduction the movement of the abducted person is a must and that to be with the use of force or any deceitful means. For example, if A enters the house of a girl B and lifted her in order to take her away, but when B raises an alarm A dropped her and ran away, A will not be liable for the abduction but he will be guilty of attempting to abduct.
Punishment
Punishment Abduction is an auxiliary act, not punishable by itself unless accompanied by some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused.
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