This article has been written by Mr. Rohan Madhok, a 5th-year BBA.LLB student from Vivekananda Institute of Professional Studies, GGSIPU, New Delhi
INTRODUCTION
Even though Indian laws have prohibited the offence of Abduction & kidnapping for a long time, the number of cases of Abduction & kidnapping still remains very high. People take advantage of the tender age of young kids to abduct them or to kidnap them and either exploit them or ask for ransom from their parents. The Indian Penal Code 1860 from sections 359 – 369 provides punishments for the offence of kidnapping and abduction. Kidnapping is a heinous crime that involves the abduction or detention of a person against their will. In India, kidnapping is punishable under the Indian Penal Code (IPC), which prescribes various punishments depending on the nature and gravity of the offence. Abduction is a serious offense in India, punishable under the Indian Penal Code (IPC) as well as other laws. The crime of abduction involves unlawfully taking or detaining a person against their will, with the intent to cause injury, ransom, or other unlawful gains.
Kidnapping and abduction are two terms that are often used interchangeably, but they actually have slightly different meanings. Kidnapping refers to the unlawful and intentional taking away of a person against their will, often for a ransom or some other illicit purpose. Abduction, on the other hand, is a broader term that refers to the taking away of a person without their consent, but it can be lawful or unlawful.
To understand the difference between Kidnapping and abduction we first need to understand these two offences separately.
KIDNAPPING
The word ‘Kidnapping’ has been derived from the word ‘Kid’ meaning ‘Child’ and ‘napping’ to ‘steal’. Thus kidnapping literally means child stealing. In other words, we can say that kidnapping is the act of taking away a person against his own will by threat, force, coercion, or deceit. Generally, the purpose of kidnapping is to get a ransom or for some political gain. Under section 359 of IPC, kidnapping is classified into two categories: kidnapping from India and kidnapping from lawful guardianship. Kidnapping in India is defined as the act of taking or enticing away any person who is a resident of India against their will. Kidnapping from lawful guardianship, on the other hand, is defined as the act of taking or enticing away any minor from the lawful custody of their guardian.
Section 360 of the Indian Penal code provides that any person who takes another person beyond the territorial limits of India without the consent of that person or without taking the consent of anyone else legally authorized to give consent on that person’s behalf, such person is said to kidnap a person from India.
Ingredients:
1. Conveying any person beyond the limits of any person.
2. without the consent of the person or of some person who is legally authorized to give consent.
‘Conveys’ means to take or carry or transport, from one place to another. So, it is the physical act of taking, a person beyond the limits of India i.e. the territory of India. The person must be conveyed without the consent of the person who is conveyed or the consent of the legally authorized person of the person so conveyed. So, it means that the conveyance may be of a major person or a minor or unsound person, beyond the limits of India.
Even when the persons are conveyed, by misrepresenting it is said that they are conveyed without consent. Consent must be free consent. In Peria Swami Kangani (1910), where the person took a woman saying that they will be married to his sons, in Ceylon and are made to work as collies for a tea estate, it is said that there is no consent and he was held liable for kidnapping.
Illustration – Riya is a woman living in Mumbai. Raj takes her to Saudi Arabia without her consent. Raj has committed the offence of Kidnapping from India.
Section 361 of the Indian Penal Code talks about the kidnapping of a person from lawful guardianship. It states that any person who entices or takes away a minor boy under the age of 16 years or a minor girl under the age of 18 years or a person of unsound mind away from their lawful guardian, such person is said to commit an offense under this section.
According to the explanation provided a lawful guardian would include any person who is entrusted with the care of a minor
There is one exception to this section which is that it does not extend to any person who genuinely believes that he is the father of an illegitimate child or who believes that he has lawful custody of such a child.
Essential Ingredients:
1. “Taking or enticing.”
2. Minor or person of unsound mind.
3. “Away from the protection of the lawful guardian.”
4. “Without his consent.” (Consent of the guardian).
We can understand this section better with the help of illustration
1) Rahul is a 13-year-old boy who lives with his mother who is also his lawful guardian. Mahesh convinces him to come to his house with him without first seeking the consent of Rahul’s mother. Mahesh has committed an offence under section 361
PUNISHMENT FOR KIDNAPPING
Section 363 provides the punishment for kidnapping, it states that anyone who kidnaps another person shall be punished with imprisonment for a term of 7 years and a fine.
The punishment for kidnapping under the IPC depends on the severity of the offence. If the victim is taken or detained for the purpose of murder, ransom, or hurt, the offender can be punished with imprisonment for life or for a term that can extend up to ten years. If the victim is taken or detained for any other purpose, the offender can be punished with imprisonment for a term that can extend up to seven years and can also be fined.
ABDUCTION
Abduction refers to the unlawful act of taking or detaining someone against their will, typically involving the use of force, deceit, or coercion. It can be considered a form of kidnapping, and in some jurisdictions, the terms “abduction” and “kidnapping” are used interchangeably.
Abduction can occur for various reasons, including ransom, forced labor, sexual exploitation, or to gain leverage in a legal or personal dispute. Abduction can also occur in cases of domestic violence or child custody disputes, where one parent takes the child without the other parent’s consent.
Section 362 of the Indian Penal code 1860 states that if any person compels another person to go from one place to another or induces any person to go from one place to another, then in that case we can say that such person has committed abduction. Thus we can say that the offence of abduction involves a person being moved from one place to another forcibly against his own will.
The essentials of abduction are as follows
1) Person is taken from one place to another – To abduct any person it is essential that the location of the person is changed by forcing him to move.
2) by force or deceit – According to section 362 abduction can happen in only two ways one is through force, the use of force must be actual and should not be just a threat and the other is deceitful means, it is done by inducing someone to go from one place to another.
We can understand the offence of abduction through the following illustrations
1) Raj slaps Rahim and threatens him that if he doesn’t leave with him he will kill him. In this case, we can say that Raj abducts Rahim
2) Rahul wears the uniform of a police officer to convince Riya to come to his house with him and she believes in his misrepresentation accepts to go with him. In this case, we can say that Rahul abducts Riya.
Abduction is considered a serious offense in many countries, including India, where it is punishable under the Indian Penal Code. The penalties for abduction can range from imprisonment to life imprisonment depending on the gravity of the offense.
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION
1) Provision of law – The provisions of Indian penal code that deal with the offence of kidnapping are section 359 that provides the two types of kidnapping and section 360 and 361 which define kidnapping from India and kidnapping from lawful guardianship. On the other hand abduction is given under section 362 of the Indian penal code.
2) Age of the victim – For the offence of kidnapping the female kidnapped should be below the age of 18 years and the male kidnapped should be below the age of 16 years. On the other hand there is no such provision that puts a bar of age in the offence of abduction.
3) Means – For the offence of kidnapping the means by which a person is taken away is irrelevant. For abduction taking a person away by force or deceit is essential
4) Lawful guardian – for the offence of kidnapping it is essential that the minor is taken away from the protection of the lawful guardian. On the other hand for the offence of abduction there is no such requirement
5) Consent – for the offence of kidnapping the consent of the person kidnapped is immaterial, however the consent of the lawful guardian is material. For abduction if the person being abducted gives his consent then no offence is committed.
6) Intention of the accused – for the offence of kidnapping the intention of the person who has kidnapped another person is immaterial. On the other hand for the offence of abduction the intention of the accused is essential.
7) Punishment – punishment for the offence of kidnapping is provided in under section 363 which is imprisonment for seven years and fine. However abduction is an axillary offence and thus it does not have a general punishment
CASE LAWS
1) S Varadarajan v. State of Madras, AIR 1965 SC 942
In this case Savitri a minor girl ran away with Varadarajan with whom she was in love and wanted to get married against her own father’s wishes. Her father filed a case against Varadarajan for kidnapping her daughter.
In this case, the court held that where a girl who is minor knowingly leaves her own family while completely understanding the consequences of her act, then in such a case it cannot be said that the accused has been kidnapped and thus he won’t be held as guilty.
2) Netra Pal v. State (National Capital Territory of Delhi), 2001 IIIAD Delhi 451
In this case, Netra Pal kidnapped a minor named Master Tanu Johia and took him to his village. Thereafter the police tracked him down and apprehended him and a letter for the ransom of Rs 50000 was found with him.
The Court held that the mere recovery of a ransom letter that might have been written by the accused is not enough to complete the ingredients of section 364A, as demanding ransom is an essential requirement of the offence.
3) Shri Moni Neog And Ors. vs State Of Assam 2006 CriLJ 1944
Sanjay Ghose was the general secretary of an NGO working in the state of Assam for the welfare of the people of Assam. The members of the militant group ULFA were not happy with his work. One day he was stopped by the two accused and was forcibly taken to a place where they were joined by other militants. After that incident he didn’t return to his home for some days, his wife filed a police report and during the investigation, the police found his dead body.
In this case, the court held that the accused had abducted Sanjay with the intention to murder him or at the very least they had the prior knowledge that he would be murdered by the militants. Therefore the court held that the accused were guilty and were liable for punishment under section 364 of the IPC.
CONCLUSION
In conclusion, while kidnapping and abduction are often used interchangeably, they have different legal definitions and implications. Kidnapping involves the intent to harm or exploit the victim, while abduction does not. Kidnapping is always considered a crime, while abduction may be legally justifiable in certain circumstances. It is important to understand the differences between these two terms to ensure that appropriate legal action is taken in cases of unlawful detainment or confinement.
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