This article has been written by Ms Arundhathi G, a 3rd year BA LLB Student from Bharati Vidyapeeth Deemed to be University, New Law College, Pune.
Introduction
Kidnapping and Abduction are offences under the Indian Penal Code, of 1860. It is about the forcible taking of a person or child (care) with or without consent. Both offences are listed under Chapter 26 – Offenses causing bodily harm, specifically Sections 359 to 366 of the Indian Penal Code.
Kidnapping
Kidnapping means taking a person against their will by force, threat or fraud. Usually, the purpose of the kidnapping is to get a ransom or something for political or other purposes. Kidnapping is classified into two categories under Section 359 of the Indian Penal Code and Sections 360 and 361 of the Indian Penal Code. Let’s understand these sections better. According to Section 359 of the Indian Penal Code, there are two types of kidnapping:
1. Kidnapping from India,
2. Kidnapping from lawful guardianship.
Kidnapping from India
Section 360 explains the kidnapping from India. Under Section 360, the offence of abduction from India is committed if any person takes a person outside the borders of India without the consent of that person or of a person legally empowered to give consent on behalf of that person.
Kidnapping from lawful guardianship.
Section 361 explains kidnapping from lawful guardianship… According to this section, if a person takes away or entices from his guardian a minor (ie a boy under 16 years and a girl under 18 years) or a disabled person. with the consent of the guardian, that person is guilty of stealing from the legal guardian. This section also mentions an exception. It states that it does not amount to a crime of kidnapping if the person has a bona fide or honestly justified belief that:
1. He has the right to legal custody of the child; or
2. He is the father of an illegitimate child.
Punishment for kidnapping
Section 363 of the Indian Penal Code provides punishment for both types of kidnapping (kidnapping from India and kidnapping from lawful guardianship). The penalty prescribed in this section is:
• Or imprisonment, which may extend to a maximum of seven years, and
• Excellent. Imprisonment for both periods means one of the following terms of imprisonment under the Indian Penal Code:
• Simple imprisonment: This means that the prisoner is in prison for idle time and does not have to do hard work. • Rigorous imprisonment: This means that the prisoner must do forced labour while in prison.
Abduction
Section 362 of the Indian Penal Code defines Abduction. It says that if a person forces another person to leave a place or causes someone to leave a place, the crime of abduction is committed. Thus, abduction is a crime in which a person is taken from a place against their will by force or fraud. Ingredients
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By force
Section 362 says that abduction can happen in two ways. One of them is power. In abduction, a person is forced to go from one place to another against their will. The use of force referred to in this section must be real and not merely forceful to constitute abduction.
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Deceitful Means
According to Section 362, another method of abduction is to induce someone to go somewhere by tricking him into doing something he would not normally do. The range of discounts here is very wide.
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To go from any place
To commit abduction, a person must be compelled to go from one place to another, either by force or by fraud. It cannot be called abduction if the person is not taken somewhere.
Difference Between Kidnapping and abduction
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The age of the injured person
In the case of kidnapping, under Section 361 IPC, the age of the victim is 16 years for males and 18 years for females (as in the State of Haryana v Raja Ram). There is no such thing as age when it comes to abduction. Any person who forcibly forced or enticed another person to leave, regardless of age, falls under the category of abduction (as in Bahadur Ali vs King Emperor).
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Legal removal of custody
Here, a legal guardian is a person who is authorized by law to take care of a person who is not yet of age. Legal guardians can be parents, in-laws etc. Since the age of the person being kidnapped is considered in the case of kidnapping, in the case of a crime the guardian of a legal person who is authorized by law to take care. of such a minor. Since Abduction considers only the abductee, legal guardianship does not come into play.
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Means
Kidnapping involves taking or enticing the abductor. The means used for this purpose are not important. Force, coercion or fraud may be used in connection with abduction.
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Consent
In the case of kidnapping, the consent of the abductee is not important, because the abductee is a minor and cannot give free consent according to the law. Consent obtained by a person is vitiated (as in the State of Haryana v Raja Ram). In the case of abduction, the consent of the abductee acquits the accused of the crime charged against him.
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The accused’s intention
In kidnapping, the intention of the minor abductor is irrelevant to the crime committed by the accused (as in Queen v Prince). In the case of abduction, the intention of the accused is a very important factor in determining the guilt of the accused.
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Punishment
Kidnapping is a serious crime. Section 363 of the Civil Code prescribes a descriptive punishment for kidnapping, which can extend to seven years and a fine.
- Continuity of crime
Kidnapping is not a continuing crime. The crime occurs as soon as the accused has removed the person from legal custody. Abduction is a continuous process and thus the abductee is carried from one place to another.
Section 359: Kidnapping
There are two types of kidnapping: kidnapping from India and kidnapping by legal guardianship. But the two types can overlap. For example, “B” abducted the minor son of “A” from the legal custody of “C” (without his consent) and took “A” outside the borders of India. Therefore, in this law, there are 2 provisions- IPC 360 and 361.
Conclusion
Abductions and kidnappings violate the fundamental right to life and liberty enshrined in Article 14 of the Constitution of India. With the constant increase in the number of victims of these heinous crimes, the need to prevent kidnappings and abduction, especially for begging, mutilation and sex, has become especially important. The joint tasks of the legal framework, state bodies and non-governmental bodies are very important to combat child trafficking. To combat this phenomenon, cooperation between countries should also be developed through the continuity of the penal system. This coherence can be achieved through the adoption of international instruments and the implementation of these international humanitarian instruments.
Kidnapping and abduction are risky actions that harm a person’s chances. Sections 359 to 369 help ensure the freedom of individuals. They provide security to children against kidnapping and abduction. In addition, they strengthen the rights of guardians to supervise children who are moved and persuaded by the expressions of disruptive adults.
References
- https://www.legalpedia.co.in/legalnotes/kidnapping-abduction.html#:~:text=360%20%26%20361%20of%20IPC.&text=Whoever%20conveys%20any%20person%20beyond,kidnap%20that%20person%20from%20India.
- https://www.legalserviceindia.com/legal/article-7871-kidnapping-and-abduction-under-indian-penal-code.html
- State of Haryana v Raja Ram, AIR 1973 819.
- Queen v Prince, L.R. 1 C.C. 150 (1868).