Kidnapping and Abduction - Provisions and Differences

Kidnapping and Abduction – Provisions and Differences | Overview

• Introduction
• Kidnapping
• Abduction
• Difference Between Kidnapping and Abduction
• Aggravated forms of Kidnapping or Abduction

Section 359 to 369 of the code have made kidnapping and abduction punishable with varying degree of severity according to the nature and gravity of the offence. The underlying object of enacting these provisions is to secure the personal liberty of citizens, to give legal protection to children of tender age from being abducted or seduced for improper purposes and to preserve the rights of parents and guardians over their wards for custody or upbringing.

Introduction

What is kidnapping? What is abduction? Aren’t they the same? These thoughts might have come to our minds a lot of times. Here, the Indian Penal Code has specified what they two are and in what sense are they different. The court of laws has also tried to fill in the gaps wherever required. The article explains the meaning of two terms, their essentials and the punishment for them.

The sections for each of the terms under IPC have been given for reference. Apart from the above the difference between the offence of kidnap and the offence of abduction has been discussed. Further, the aggravated forms of kidnapping and/or abduction have been mentioned and dealt very briefly.

The category of offences related to kidnapping and abduction is dealt under the head of “Of Kidnapping, Abduction, Slavery and Forced Labour” under the Indian Penal Code, 1860.^[1] Often these terms “kidnapping” and “abduction” are used synonymously, but the code has separately dealt with it. Thus, the details of each will be discussed forthwith.

I. Kidnapping

The meaning of kidnapping is not given as such, but the kinds of kidnapping is provided in the code. This will help us understand the actual sense of what kidnapping is. So according to section 359^[2], kidnapping is of two types, one being “kidnap from India” and the other being “kidnap from lawful guardianship”. Each of them is separately provided in IPC.

“359 Kidnapping—Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship”

Kidnapping from India

Section 360 deals with kidnapping from India, which uses the terms “beyond the limits of India”. So here, a person conveying is crossing the boundaries of the nation, it is said to be kidnapping from India.^[3]

“360 Kidnapping from India—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”

The person kidnapping must go beyond the limits of India to be held convicted under this section. Further, it is not mandatory that they reach their destined location in foreign territory for conviction. And if a person is caught hold before crossing the boundary, then that will not lead to the conviction under this section but will be treated as an attempt to commit the kidnapping from India.

To know what constitutes India, the penal code has defined the same under section 18. It includes the territory of India, excluding the state of Jammu and Kashmir. But as the article 370 has been abrogated, the laws of IPC, CrPC and other central laws would be applicable upon the state too.^[4]

This act of taking or kidnapping a person away from the territory of India is made a separate offence as it would be forceful removal of a person beyond the jurisdiction of India, and Indian law enforcing officials.^[5] The other important point would be “consent”. It requires that such acts must be done without the consent of the person who is being kidnapped or of the guardian who is lawfully authorised to give consent. This means this section is applicable to both minors as well as legally major people.

Kidnapping from Lawful Guardianship

Section 361, defines the offence of kidnapping from lawful guardianship.^[6]

“361 Kidnapping from lawful guardianship—Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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”

Explanation – The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception – This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose”

This section is mainly applicable to those who are not legally authorised to consent on their own. That is the person being kidnapped must be minor or as per the age requirement provided in the section itself. There is a similar law in England which is termed as the ‘child stealing’ under the ‘Offences against the Person Act 1861’.^[7] In India, this law was made to protect the minors and the persons with unsound mind from such kidnapping.

Essentials of the Offence

The following are the essentials of the offence of “kidnapping from lawful guardianship”-

1. Taking or Enticing away a minor or a person of unsound mind.
2. If a male – under 16 years of age and if female – under 18 years of age.
3. Such taking or enticing must be away from the lawful guardian’s kee.
4. It must be done without the consent of such lawful guardian.

If the above essentials are fulfilled the person can be made convicted under this section for kidnapping from the lawful guardianship.

• Taking or Enticing

As the definition of both the words taking and enticing has not been defined under the code. The word taking does not mean a forceful act. It implies no active or constructive force.^[8] Hence the act requires that while taking, there must be no consent.

Further, the consent of a child is not valid. However, the force is not an issue, and there must be some overt act done by the accused to take or to persuade the minor or unsound minded person to go along with the accused or be taken away by the accused.^[9] The word enticing means to persuade or to allure or offer a desirable thing.

The law requires there must be a successful inducement for the purpose of conviction under this section.^[10] Further if a minor is induced by the promise of marriage and is made to leave the guardian’s home is said to be enticement for the purpose of this section.^[11]

In the case of S Varadarajan v. State of Madras, AIR 1965 SC 942, where the court studied the facts that the girl who is at the verge of almost attaining majority, had voluntarily left the father’s house. She got married to the accused at a registered office. The court found that there was no active role played by the accused to persuade her to leave the house. This was the core of the conviction; then the court was satisfied that such an act was not an offence under section 361.^[12]

To understand the above ruling, it can be compared to another case which is State of Haryana v. Raja Ram, AIR 1973 SC 819. In this case, there was a minor who was 14 years old, met a person accused and became friendly to him. The father of the victim had warned him not to talk to her daughter. But the accused used the third person to talk to her, persuading her to leave her home and meet him. When she met him, he seduced her and had committed rape as she was a minor.

When the supreme court was put with a question as to whether this would amount to kidnapping from the lawful guardianship, the court replied yes. It stated that the section does not require any force or fraud to be committed. The active role played by the accused to persuade her to leave her lawful guardian’s place itself attracted the section. Hence he was made liable under section 361.^[13]

• Age of the Minor

As the code had specified the age for both male and female who can be a victim under this offence, now it is the duty of the prosecution to prove that at the time of the commission of the offence the age of the victim was below 16 years if it is a male and below 18 years if it is a female.^[14]

• Keeping of Lawful Guardian

The section uses the term, lawful guardian and not legal guardian who makes the ambit of such guardianship to be wider. Which would include not only parents but also others like teachers, relatives etc., who are lawfully entrusted with the duty of care of such minor or unsound minded person.^[15]

Further, what is keeping a lawful guardian, has been explained by the court of law as to be under protection, control, or maintenance. It is not enough if there is merely physical presence absent. It requires the minor to be beyond the parent’s control.^[16]

• Consent

The consent is the main essential which might help the accused in getting away with the criminal liability of such offence. Thus, it must be proved that the guardian has not consented for taking away and a minor’s consent if no valid consent. Further, if a guardian has consented after the act of kidnapping, then it is totally irrelevant.^[17]

Exception

There is also an exception to this section which says if anyone acts in good faith, either believes to be a parent of a child whom he believes to be an illegitimate child. Or if he acts in good faith with the belief that he is the lawful guardian of that child.^[18] Now the aspect of good faith will depend upon the facts and circumstances of each case.

Punishment for Kidnapping

Section 363^[19] provides for the punishment for the offence of kidnapping under section 360 or section 361.

“363 Punishment for kidnapping—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”

II. Abduction

The offence of abduction is defined under section 362. As we see the definition, abduction is not an offence; however, if it is accompanied with the intention to commit such crime. Hence, if a person assaults, is doing so with an intention to abduct, then it is an offence under this section.^[20] Without such intention, abduction cannot be punishable.^[21]

“362 Abduction—Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person”

Essentials

The section requires that there must be-

1. Force or Deceitful Means: For conviction under this section, the law requires there must be the use of actual force and not mere threat to show force. But when a victim is threatened with a pistol to make her go along with the accused is said to be abducted under this section.^[22] Further, if a person uses deceitful means in alternative to abduct a person is also said to be an offence under this section.
2. To Go From a Place: In the offence of Abduction, the movement of a person being abducted is necessary. Abduction is a continuing offence and requires not only moving the victim from one place but also the one being moved from one place to another. If a kidnapped victim escapes the kidnappers and when found a police constable, he instead of helping her, keeps her with him until he receives money from her mother to hand her over. This act too, was said to be an abduction as defined under this section.^[23] If a victim is handed over many times to different persons, then each of such persons becomes liable for abduction if there is intention.^[24]

III. Difference Between Kidnapping and Abduction

The key differences between the two offences are kidnapping is a complete offence, hence is a substantive offence whereas the other one is continuing offence, is an auxiliary act which becomes offence only when coupled with intention. Kidnapping has types in, and the one under section 361 is specifically for the kidnaps of minors or of persons with an unsound sound mind. In abduction, there is no such specification and is generally applied to everyone.

In kidnapping the taking away or enticing is important, and no reference is made to the means. In abduction, the means are relevant, i.e., forcefully or by deceitful means. The intention is irrelevant in the kidnapping, whereas it is an important element in the abduction. Consent has no material effect in kidnapping, but in abduction, consent may play a role for condoning the offence.^[25]

IV. Aggravated forms of Kidnapping or Abduction

The various forms of kidnapping and abduction offences are as follows-

1. Kidnapping or maiming a minor for the purpose of Begging

“363A. (1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine

(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging

(4) In this section—

(a) “” means—

1. soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise
2. entering on any private premises for the purpose of soliciting or receiving alms
3. exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal
4. using a minor as an exhibit for the purpose of soliciting or receiving alms

(b) “minor” means—

1. in the case of a male, a person under sixteen years of age and
2. in the case of a female, a person under eighteen years of age”^[26]

2. Kidnapping or Abduction in order to Murder

“364 Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine

Illustrations

1. A kidnaps Z from 1 [India], intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section
2. A forcibly carries or entices B away from his home in order that B may be murdered, A has committed the offence defined in this section”^[27]

This section requires the intention of the accused to be proved. The intention here must be abduction for murdering.^[28] If a person is dead before the kidnapping or abduction, then it will not be a case under this section.^[29] If a person had been abducted and is dead, then it is upon the accused to prove the death has not been caused by him.^[30] Even though he does not know who had caused the death, the abductor will be made liable.^[31]

3. Kidnapping for Ransom

“364A. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine”^[32]

The term ransom has not been defined under penal code. Hence the supreme court case is relied upon for the same. ‘It is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu’.^[33] The demand for ransom made after murdering the victim is a case falling under the ambit of section 364A as the main objective is to extort money from the parents of the deceased.^[34]

4. Kidnapping or Abduction with intent secretly and wrongfully to confine a person

“365. 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 seven years, and shall also be liable to fine”^[35]

5. Kidnapping, Abduction or Inducing woman to Compel her Marriage

“366. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid”^[36]

The mere abduction or kidnapping does not attract this section; it requires the essential element to be proved, i.e., compulsion.^[37] If a woman is compelled to marry or have an illicit relationship, then only the accused will be liable under this section, whereas the intention of the woman is irrelevant.^[38]

6. Procuration of Minor Girl

“366A Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine”^[39]

7. Importation of Girl from Foreign Country

366B. “Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine”^[40]

8. Kidnapping or abducting in order to subject to grievous hurt, slavery, etc.:

367. “Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”^[41]

9. Wrongfully concealing or keeping in confinement, kidnapped or abducted person:

“368 Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement”^[42]

10. Kidnapping or abducting child under ten years with the intent to steal from its person:

369. 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 seven years, and shall also be liable to fine”^[43]

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^[1] Indian Penal Code 1860, ss 359-374

^[2] Indian Penal Code 1860, s 359

^[3] Indian Penal Code 1860, s 360

^[4] Rahul Tripathi, ‘Central laws to apply retrospectively in J&K’ (Economics Times, 29 Feb 2020) <https://economictimes.indiatimes.com/news/politics-and-nation/central-laws-to-apply-retrospectively-in-jk/articleshow/74410116.cms> accessed 10 April 2020.

^[5] K I Vibhute, PSA Pillai: Criminal Law (12 ed, LexisNexis 2014)

^[6] Indian Penal Code 1860, s 361

^[7] Offences Against the Person Act 1861, s 56

^[8] Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416 (Ori)

^[9] State v. Rajayyan (1996) Cr LJ 145 (Ker)

^[10] Thakorlal D Vadgama v. State of Gujarat AIR 1973 SC 2313

^[11] Motiram Hazarika v. State of Assam (2004) 5 SCC 120

^[12] S Varadarajan v. State of Madras AIR 1965 SC 942

^[13] State of Haryana v. Raja Ram AIR 1973 SC 819

^[14] Mohan v. State of Rajasthan (2003) Cr LJ 1891 (Raj)

^[15] State v. Harban Singh Kisan Singh AIR 1954 Bom 339

^[16] State of Haryana v. Raja Ram AIR 1973 SC 819

^[17] Prakash v. State of Haryana (2004) 1 SCC 339

^[18] Indian Penal Code 1860, s 361

^[19] Indian Penal Code 1860, s 363

^[20] Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67

^[21] Chote Lal v. State of Haryana AIR 1979 SC 1494

^[22] Gurcharan Singh v. State of Haryana AIR 1972 SC 2661

^[23] Bahadur Ali v. King Emperor AIR 1923 Lah 158

^[24] Nanhua Dhimar v. King Emperor (1930) ILR 53 All 140

^[25] K I Vibhute, PSA Pillai: Criminal Law (12 ed, LexisNexis 2014)

^[26] Indian Penal Code 1860, s 363A

^[27] Indian Penal Code 1860, s 364

^[28] Upendra Nath v. Emperor AIR 1940 Cal 561

^[29] Pedda Narayana v. State of Andhra Pradesh AIR 1975 SC 1252

^[30] State of Madhya Pradesh v. Lattora (2003) 11 SCC 761

^[31] State v. Dallela (1958) ILR 8 Raj 181

^[32] Indian Penal Code 1860, s 364A

^[33] Sooman Sood @ Kamal Jeet Kaur v. State of Rajasthan AIR 2007 SC 2774

^[34] Vikas Chaudhary v. State of NCT of Delhi AIR 2010 SC 3380

^[35] Indian Penal Code 1860, s 365

^[36] Indian Penal Code 1860, s 366

^[37] Jinish Lal Sah v. State of Bihar (2003) 1 SCC 605

^[38] Moniram Hazarika v. State of Assam (2004) 5 SCC 120

^[39] Indian Penal Code 1860, s 366A

^[40] Indian Penal Code 1860, s 366B

^[41] Indian Penal Code 1860, s 367

^[42] Indian Penal Code 1860, s 368

^[43] Indian Penal Code 1860, s 369

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