INTRODUCTION
Abduction and Kidnapping are particular types of offences under the Indian Penal Code. It talks about the forcefully taking of a person or a child (from guardianship) with or without consent for that matter. Both offences are given under Chapter 26 – Offences affecting the Human Body. They are defined under sections 359-362 and the punishments for the same are mentioned under sections 363-366 and 367-369 wherein the punishments differ with respect to the purpose for the kidnapping or abduction is committed.
Abduction is a broader concept than kidnapping, it can also be said that all kidnappings are abductions whereas all abductions are not kidnappings. In other terms, abduction is genus while kidnapping is its species. We will get a deeper understanding towards this in the article.
KIDNAPPING
According to the Merriam-Webster dictionary, kidnapping means, “to seize and detain or carry away by unlawful force or fraud and often with a demand for ransom”. The literal meaning of kidnapping is “child stealing” and it has been given a wider meaning than its literal meaning.
Under the Indian Penal Code, 1860 (hereinafter referred to as ‘the act’), kidnapping has been defined under section 359. According to section 359 of The Act, there are two kinds of kidnapping- kidnapping from India and kidnapping from legal guardianship.
- Kidnapping from India is defined under section 360 of The Act. It means stealing away and conveying any person from their own country (India), and sending them into another beyond the limits of (India), without their or their legal guardian’s consent. This section is attractive only when the person is conveyed beyond the limits of the country.
Illustration- Person ‘X’ who lives in Mumbai, Maharashtra is taken by person ‘Y’ to Malaysia forcefully without consent.
Essential elements-
- Conveyance of the person beyond the limits of India.
- Absence of consent of the person himself or of the person authorised.
- Kidnapping from lawful guardianship is defined under section 361 of The Act. It states that taking or enticing any minor (under 16 years of age if male and under 18 years of age if female) or a person of unsound mind out of the keeping of a lawful guardian without the guardian’s consent constitutes kidnapping. Here ‘lawful guardian’ could be any person who is legally entrusted with the custody of a minor or any person of unsound mind.
The moment a minor or someone who is insane is truly removed from legal guardianship, the offence under this section is considered to have been committed. Furthermore, it is entirely irrelevant whether or not the minor in such a scenario has given their consent to this offence. This section provides an exception in which a person who, acting in good faith and believing himself to be the father of an illegitimate child or to be entitled to the child’s custody, removes the child from the legal guardianship without the child’s consent and does so for no immoral or illegal reason, is released from liability.
Case Law- State Of Haryana V. Raja Ram
The accused in this instance attempted to entice the 14-year-old prosecutrix to move in with him. Even after her father had forbidden her from going, the girl went. According to the ruling of the Supreme Court, a child’s consent is entirely irrelevant and should only be considered when determining whether or not an offence was committed. The definition of “taking” in this section includes both coercion by the accused and fraud, as well as the minor’s willingness to be removed from his or her legal guardian. The accused was held guilty as it was because of his enticing behaviour that the girl left her father’s custody.
Essential elements-
- Taking or enticing a person.
- The person should be a minor or of unsound mind.
- Taking the person from the lawful guardian.
- Absence of consent from a lawful guardian.
ABDUCTION
Abduction has been defined under section 362 of the Act. It states that, when any person is forcefully compelled or induced in a deceitful manner to go from one place to another, such act is said to be abduction.
The crime of abduction requires the use of force or coercion. This means that a person will not face charges of abduction if a person chooses to go out with them voluntarily and without coercion or force. The term “deceitful means” will encompass not only fraud and misrepresentation but also the act of kidnapping someone under false pretences.
Case Law- Bahadur Ali Khan v. King Emperor
In this case, the accused misrepresented himself as a police constable and constrained the girl in his house in exchange for a ransom of Rs. 600. It was held by the court that this act amounted to abduction and the accused was held guilty.
Essential elements-
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- Compelling a person using forceful means or inducing in a deceitful manner.
- Compelling the person to go from one place to another.
- Intention to commit an offence against them.
DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING
The difference between abduction and kidnapping can be understood with reference to the following points:
- Age of the aggrieved person
Kidnapping: Kidnapping is a crime that is committed against a minor, who is 16 years old for males and 18 years old for females.
Abduction: The law does not take age into account when it comes to abductions; anyone can use force or fraudulent means to compel someone else to move from one place to another.
- Lawful Guardianship
Kidnapping: here the person kidnapped is removed from the custody of his/her lawful guardian.
Abduction: consent or custody of lawful guardian is immaterial.
- Means
Kidnapping: the person is taken away from the custody of the lawful guardian immaterial of the guardianship.
Abduction: the means used for abduction maybe force, compulsion or deceit.
- Consent
Kidnapping: the consent of the kidnapped is immaterial whereas consent of the legal guardian is necessary.
Abduction: the absence or presence of the abducted determines whether the offence was committed or not.
- The intention of the accused
Kidnapping: The accused’s intent to abduct a minor is irrelevant to the crime they are accused of committing.
Abduction: When assessing an accused person’s guilt, one of the most crucial factors is their intention when abducting.
- Nature of the offence
Kidnapping: it cannot be said to be a continuing offence as the offence is committed as soon as the person is taken out of his/her legal guardianship.
Abduction: it is a continuing offence as the location of the abduction is bound to change.
CONCLUSION
Even though at the first instance kidnapping and abduction may sound the same to any individual, there are certain differences between them which need to be understood as both of their legal connotations and definitions differ. Abduction lacks the intent to harm or take advantage of the victim, whereas kidnapping does. While kidnapping is always illegal, there are some situations where abduction is acceptable from a legal standpoint. Knowing the distinctions between both of these terms is crucial in order to make sure that, in the event of an unlawful detention or confinement, the proper legal action is taken.
Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India
