Kidnapping and Abduction are the crime under the Indian Penal Code,1860. It talks about the forcefully taking of the person or a child (from guardianship) with or without the consent for that matter. The offences are given under Chapter 26 – Offences affecting the Human Body, particularly from section 359 to 366 of the Indian Penal code.
Kidnapping, as the word suggests, is the act of stealing a child. Under section 360 of the Indian penal code,1860, there are two kidnapping types, 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 to release the victim or for other illegal purposes. Kidnapping can be accompanied by bodily injury, which elevates the crime to aggravated kidnapping.
The offence of kidnapping has a wide scope under the penal code as Sec. 359 and 361; IPC does not spell-out any territorial jurisdiction for committing the offence. Moreover, this provision is gender-neutral, which ensures the protection of males and a girl child. The rigor of the law travels with the ward/ subject. Any person involving themselves in the offence of kidnapping or procuring a minor girl at any point in time would also come within the purview of kidnapping provisions.
Provision Under the Code
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’ minor boy was kidnapped by ‘B’ from the lawful guardianship of ‘C’(without his consent) and taken ‘A’ to beyond India’s limit. Hence, this act will attract the provisions of sec—360 & 361 of IPC.
Section 360: Kidnapping from India
Whoever conveys any person beyond India’s limits 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 India’s limit: The person who is kidnapped can be a major or a minor to attract the provision of this section. In the case of a minor, 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: – Age of a person is the 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 a minor.
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 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 other people.
This section does not extend to the act of any person who 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.
Taking or Enticing: –
the word ‘takes’ means to cause to go, to escort, or to get into the 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 attempted to do a thing they would not otherwise do. This is the key difference between taking and enticing. For example, Persuasion by the accused person, which creates willingness on the minor’s art to be taken out of the keeping of the lawful guardian, would be sufficient to attract to the provision of this section iii. Moreover, the 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 18, or a person of unsound mind. The unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic excess or other reason. For example, where 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’ denotes that a minor is within the guardian’s due care and protection. A minor doesn’t need to be in the physical possession of the guardian. It will be enough if a minor is under a continuance control that is, for the first time, terminated by the offender’s act. Moreover, there is a difference between a legal guardian and a lawful guardian. When a father sends his son to school with, she the father is a legal guardian, and 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 a 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 express. In addition to that, if consent is obtained after the commission of an offence, so can’t be used as a good defense. Hence, it is immaterial.
The provision for kidnapping punishment is given under section 363, which says whoever kidnaps any person from India or 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.
The literal meaning of abduction is the action of 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 offensive. Force or fraud is essential.
Provision under IPC:-
Section 362: 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 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: –
to commit the offence of abduction, the abducted person’s movement is a must, and that to be with the use of force or any deceitful means. For example, if A entered the house of a girl B and lifted her to take her away, but when B. raises alarm A dropped her and ran away, A will not be liable for the abduction, but he will be guilty of an attempt to abduct.
An 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 of
other resources you may like to read:
- Legalpedia- a tabular discussion of differences
- Who can give information to police in case of a cognizable offence.