This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.
‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.
In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.
Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.
Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.
- Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
- Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
- Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.
Essential ingredients of the section are
- Taking or enticing away a minor or a person of unsound mind by someone
- Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
- The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
- Such taking or enticing of the minor must be without the consent of the lawful guardian.
Taking or enticing
To prove the presence of taking or enticing element it is required to show some active part played by the accused.
In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.
The word ‘entice’ embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.
Keeping of lawful guardian
The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.
In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.
Age of Minor
As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.
In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.
The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.
Section-362, Indian Penal Code deals with ‘Abduction’
- Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.
Essential ingredients of this section are
- Forcible compulsion or inducement by deceitful means.
- The object with which such compulsion or inducement caused must be to make a person go from someplace.
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION
Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:
- Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
- Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.
Removal From Lawful Guardianship
- In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
- In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.
- In Kidnapping, the means used are irrelevant.
- In Abduction, means of force, compulsion and deceitful means are used.
- In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
- In Abduction, person condones the offence of abduction.
Continuity of crime
- Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
- Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.
- Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
- Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.
So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.
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