The word kidnapping is derived from the ‘kid’ which literal meaning is child and ‘napping’ which means to steal. So, the literal meaning of Kidnapping is child stealing. Kidnapping and abduction are two serious crimes mentioned under Indian Penal Code, 1860. These offences are a obstacle to some of the basic rights mentioned in the constitution and enjoyed by the people i.e. the right to freedom of personal liberty.
Kidnapping is defined under section 359 of IPC. It is of two kinds i.e. kidnapping from India and Kidnapping from lawful guardianship. But in a minor case these two kinds can overlap with each other as the minor can be kidnapped from India and also from lawful guardianship.
Section 360 defines kidnapping from India. According to it, Whoever conveys any person beyond the limit of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.
Section 361 of IPC defines kidnapping from lawful guardianship. According to it, kidnapping of minor or any person of unsound mind, if a male who is minor and below 16 years of is kidnapped, and in case of females, if she is a minor of below age 18 is taken, then it is said to be kidnapping from lawful guardianship. Under this section, There is no age limit for unsound minded people.
Here the word, Lawful guardian means, any person who is lawfully entrusted with the responsibility to care or custody of a minor or other persons.
In the case of “ the State of Haryana v Raja Ram” a 14 years old minor met a person who is the accused and develop a friendly relationship with her. He was warned by victim’s father to stay away from her daughter. But the accused keep talking to her by a third person. The accused persuaded her to leave her home and to come with him. When the minor girl met him, the accused raped her when she was a minor. Supreme Court stated that the accused persuaded the minor girl to leave her lawful guardian’s place. So he was held liable under section361.
Section 363 defines punishment for kidnapping. Under this section, the offences are cognizable, bailable, non- compoundable and trialed by first class magistrates. As per defined under section 363 of IPC, “Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term extended to seven years, and shall be liable to fine.”
Abduction is defined under section 362 of Indian Penal Code. According to it, “ Whoever by force, compels or by any deceitful means induces any person to go from any place, is said to abduct that person.”
The essentials for abduction-
▪ There should be forceful compulsion or inducement by deceitful means,
▪ The object of compulsion must be going of a person from any place.
Deceitful means, to mislead a person by making false representation.
In the case of Bahadur Ali vs King Emperor, a girl who was kidnapped managed to escaped from the kidnappers and then met the accused, who misrepresented himself as a police constable in front of the girl. He lied to her by saying that he would take her to the police station, but instead of taking her to the police station he took her to his house. Then he demanded money and took around 600 rupees from her mother before he handed the girl back. It was held that his actions will be called as abduction.
If abduction comes under the subject matter provided in the sections 364, 365, 366, 367 and 369, then it will be called as an offence. So, abduction is an offence if it done with an intention of-
▪ Committing Murder (sec 364)
▪ Secretly and wrongfully confining a person (sec 365)
▪ Induce a woman by compelling her to marry (section366)
▪ Subject a person to grievous hurt, slavery etc (sec 367)
▪ Kidnapping or abducting a child of below the age of ten with an intention to steal from that person (sec 369)
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION
▪ Kidnapping only occurs with a person of unsound minds or a minor, whereas abduction can be occur with a person of any age (no age limit).
▪ In kidnapping the way of doing the deed is by persuading and the deed can be innocent, whereas use of force or deceit is necessary in case of abduction.
▪ Consent is irrelevant or valueless in case of kidnapping, whereas in abduction there is use of force or deceit, so lack of consent is necessary. An act won’t be amount to abduction, it there is presence of the consent.
▪ The intention of the offender won’t be taken into consideration in case of kidnapping. He will be held liable despite of a good intention or valid motive in all circumstances, whereas in abduction, intention plays an important role to determine the offence. So, the person will be held liable only if there is a ill intention or bad motive.
▪ Kidnapping from guardianship is an offence, but kidnapping itself won’t led to an offence as per mentioned under section 364, whereas if abduction takes place, it will amount to an offence.
▪ Kidnapping is not a continuous offence. When the minor is removed from the place of his/her guardian, the act of kidnapping is said to be completed, whereas abduction is a continuous offence. The place of the abducted person changes from one place to another that’s why it is continuous.
As mentioned in the Indian Penal Code, kidnapping is illegal and imprisonment of a man without any intention. This offence violets the right to life and personal liberty mentioned under the article 14 of Indian Constitution. There is a progress of these type of crimes, we need to prevent such crimes, especially when it is done for forced begging and sexual intercourse. Kidnapping and abduction are important offences and they have been drafted to protect the fundamental rights of the individual and the individuals itself. The fifth law commission purposed to change the definition of the both offences in its forty second report.
By- Jagakalia Agasti
SOA National Institute of Law, Bhubaneswar
BA LLB Hons, 3rd Year