Kidnapping & Abduction

  • Introduction :

        Kidnapping and abduction are serious criminal offenses that involve the unlawful taking or detention of a person against their will.

      These acts not only violate an individual's personal freedom and autonomy but also pose significant threats to their safety and well-being.

       The Indian Penal Code (IPC) provides legal provisions to address and punish such acts, ensuring the protection of individuals from these heinous crimes. 

       

       Kidnapping and abduction are distinct but closely related offenses. Kidnapping refers to the act of taking or carrying away a person by force or coercion, intending to hold them captive against their will. 

       Abduction, on the other hand, involves the act of wrongfully or unlawfully restraining a person's freedom of movement without their consent or legal justification.

       

  • Kidnapping :

           Kidnapping is the act of unlawfully taking away or confining a person against their will. The essential elements of kidnapping include the taking or detaining of a person, the absence of consent, and the intention to cause harm, extortion, or wrongful restraint.

        The word ‘kidnapping’ has come from two words, ‘kid’, which means child and ‘napping’, which means to steal. Thus, it literally means stealing a child.

  • Kinds of Kidnapping :

          As per the Section 359 of the Indian Penal Code kidnapping is of two kinds:

       - Kidnapping from India

       - Kidnapping from lawful guardianship

  

Kidnapping from India : as per section 360 of the Indian Penal Code 1860, Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India. 

Essentials Ingredients of section 360 -

   1. The person kidnapped was at the time of offence in india.

   2. That the person conveyed him or her beyond the limits of India.

   3. That the accused did so without his consent or 

      without the consent of another legally authorised to consent on his behalf.

Kidnapping from lawful guardianship : as per section 361 of the Indian Penal Code 1860, Whoever takes or entices any minor under 16 years of age if a male, or 

         under 18 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.

Essentials Ingredients of section 361 -

      Whoever takes or entices -

   1. a minor male under 16 years of age, or

   2. a minor female under 18 years of age,or

   3. for a person of unsound mind -

         (a) out of the keeping, and 

         (b) without the consent of the lawful      

               guardian.

   • Punishment for Kidnapping -

          The provision for punishment of kidnapping is given under section 363 of IPC 1860, 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 extent to seven years and shall also liable to fine.

  • Abduction :

         The literal meaning of abduction is the action of forcibly taking someone away against their will.

         As per section 362 of the IPC, Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Essentials Ingredients of a abduction -

    1. forcible compulsion, or inducement by deceitful means, and

    2. the object of such compulsion or inducement must be to make the person go from any place.

  • Punishment for abduction -

        Mere abduction is not punishable unless done with intent to commit other offences as provided in Sections 364 to 369.

  • Difference between Kidnapping & Abduction -

  

      1. Age of the Aggrieved Person -

 In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC is 16 in case of males and 18 in case of females (as seen in the case of State of Haryana v Raja Ram).

In case of Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be booked with abduction (as in the case of Bahadur Ali v King Emperor).

 

    2. Lawful Guardianship -

The person kidnapped is removed from the lawful guardianship, lawful guardianship means lawful person who has been authorized by law to take care of such minor.

Guardianship is immaterial to determine the offence of abduction. It has reference exclusively to the person abducted.

    3. Means -

Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.The means used to kidnap a child may be innocent.

The means employed in abduction are force, compulsion or deceitful methods.

    4. Consent -

In case of Kidnapping from lawful guardianship, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent.

Consent of the person matters i.e. if a person is removed with free consent in that case offence of abduction is said be not committed.

    5. Intention -

In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused.

Intention is very important to determine the offence. Hence, a person would be liable only if there is ill intention behind the act.

    6. Punishment -

Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.

Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified under section 364-369. Hence, a particular purpose is necessary to punish an accused.

  7. Completion of offence -

Kidnapping is not a continuing offence. The offence is completed as soon as the minor is removed from the custody of his or her/his guardian.

Abduction is a continuing offence. The offence is in continuation as the place of the abducted person changes from one to another.

  • Other Kinds of Kidnapping & Abduction-

Kidnapping or maiming a minor for purpose of Begging (section 363-A IPC ) :

 

   1. whoever kidnaps any minor or, takes custody of the minor without being their legal guardian, in order that such minor may be employed or used for begging, 

        shall be punishable with imprisonment of either description for a term which may extend to 10 years, and shall also Liable to fine.

 

   2. whoever maims any minor so that they can use that minor for begging, 

         shall be punishable with imprisonment for life, and shall also be liable to fine.

  

Kidnapping or Abducting in order to murder ( section 364, IPC ) :

      whoever kidnaps or abducts any person with the intention of either murder them or causing them to be in a situation where they could be murdered, 

      shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to fine.

Kidnapping or abducting with intent secretly and wrongfully to confine person ( section 365, IPC ) :

       Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined,

            shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

Kidnapping, abducting or inducing woman to compel her marriage, etc ( section 366, IPC ) : 

          whoever kidnaps or abducts a woman against her will, with the intention of making her marry any person she doesn't want to marry, or with the intention of forcing or seducing her to have illicit intercourse,

          shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable for fine.

Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. ( section 367, IPC ) : 

              whoever kidnaps or abducts any person with the intention of causing them serious harm, making them a slave, or subjecting them to unnatural lust of any person, or if they know that the such person is likely to experience these things,

            shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

Wrongfully concealing or keeping in confinement, kidnapped or abducted person ( section 368, IPC ) :

            whoever knows that a person has been kidnapped or abducted against their will, and they purposely hide or keep that person confined, 

            they will be punished as if they themselves had kidnapped or abducted the person.

          The punishment will be based on the same intention or knowledge as the original kidnapper, or for the same purpose for which the person is being hidden or confined.

Kidnapping or abducting child under ten years with intent to steal from its person ( section 369, IPC ) :

          Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child,      

          shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

  • Important Cases :

1. State of Haryana v. Raja Ram, AIR 1973

   issue was whether the respondent was guilty of the offence under section 361 of IPC?

           The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:

      Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.

     The consent of a child is completely immaterial and only the guardian’s consent is relevant to decide whether the offence was committed or not.

     In this case, the respondent was held guilty under section 361 as it was the respondent’s action which persuaded the prosecutrix from going out of her father’s keeping, against her father’s wishes.

2. Biswanath Mallick v. State of Orissa 1995

     Enticing’ is inducing a minor to go of her own accord to the kidnapper. There is distinction between taking and enticing. The mental attitude of child isimmaterial in the case of taking when the child is taken away. But the word ‘entice’ involves the idea of inducement or allurement.

3. S VARADARAJAN vs STATE OF MADRAS   

    1965 

      On 1st October 1960, Savitri left her relative’s house to meet Varadarajan on some particular road.

            They both planned to marry at the registrar’s office, for which they picked a friend to make him witness. 

            Savitri had stated that she wanted to marry the appellant. Varadarajan had not forced Savitri to go to Registrar’s office and to marry him. 

      The case went to Madras High Court, and the court convicted Varadarajan guilty for kidnapping and awarded one year of rigorous punishment to him. Later, Varadarajan appealed against High Court judgment by special leave in Supreme Court.

              The Honorable Court held the appellant was not guilty of taking away Savitri as she voluntarily accompanied Varadarajan. Savitri was on the verge of attaining majority and she was capable of knowing what is good and bad for her. Therefore, the appeal is allowed.

4. Chandrakala Menon & Anr. vs Vipin Menon & Anr. 1993

     In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. 

         They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated.

          While Vipin Menon filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. 

          One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. 

          The grandparents lodged a complaint of kidnapping against him. However, the supreme court held that Vipin Menon was the natural guardian of the child.

5. State Of West Bengal vs Mir Mohammad Omar & Ors, 2000

     The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.

6. Vishwanath v. State of Uttar Pradesh AIR  

     1960  

        It was held that mere abduction is no offence at all. The guilty and wrongful intention must be present for the offence to be punishable.

           [ For this very reason, IPC provides for different punishments for abduction with different intentions. Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years ]