This article will define the provisions and differences between kidnapping and abduction.
KIDNAPPING:- There are two kinds of kidnapping :- Kidnapping from India and Kidnapping from lawful guardianship.
Kidnapping from India:
Section 360 of the IPC states that 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. Ingredients of Kidnapping from India:
- Taking away a person beyond the limits of India.
- Such act must be done without the consent of the person or without the consent of legally authorised person.
The words ‘beyond the limits of India’ means that the moment the person is taken outside the geographical territory of India without its consent, the offence under this section is complete. It is not necessary that the person should reach the destination in some other foreign territory. If the person is arrested before he crosses the Indian border then the offence will not be complete. It may amount to an attempt to commit the offence of kidnapping from India.
Kidnapping from Lawful Guardianship:
Section 361 of IPC states that 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. Lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person. Ingredients of Kidnapping from Lawful Guardianship:
- A person takes away another person.
- The person taken is;
- A minor under 16 years of age, if a male, or
- A minor under 18 years of age, if a female, or
- A person of unsound mind.
- Such person is taken out of the keeping of his lawful guardian.
- There is no consent by the lawful guardian.
Exception to kidnapping from lawful guardianship:
Sec 361 itself provides an exception stating that 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.
The term used in sec 361 is lawful guardian and not legal guardian. The term lawful guardian is much more wider and general term than the expression legal guardian. Legal guardians would be parents or guardians appointed by the courts (de-facto). Lawful guardian would include within its meaning not only legal guardians, but also such person like a teacher, relatives etc who are lawfully entrusted with the care and custody of the minor. (du jour)
Punishment for Kidnapping:
Sec 363 of IPC provides punishment for kidnapping. It states that 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.
Sec 362 of IPC defines abduction as whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Ingredients of Abduction:
- Forcible compulsion or inducement by deceitful means.
- The object of such compulsion or inducement must be the going of a person from any place.
Section 362 merely defines the term ‘abduction’. Therefore, abduction per se is not offence under IPC. It is an offence when it is accompanied by certain intent to commit another offence. Abduction is an offence only if it is done with intent to :
- Murder (S. 364);
- Secretly and wrongfully confining a person (S. 365);
- Induce woman to compel her marriage (S. 366);
- Subject person to grievous hurt, slavery etc. (S. 367);
- Steal from a person child under 10 years (S. 369).
The word as given u/s 362 of IPC means the use of actual force and not merely show of force. Deceitful means is misleading a person by making false representation and thereby persuading the person to leave the place.
To Go From Any Place:
An essential element of abduction is compelling or inducing a person to go from any place. It need not be only from the custody of lawful guardian. Abduction is a continuing offence.
|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.||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|
|In kidnapping the person is removed from the lawful guardianship.||Since Abduction considers only the person who has been abducted, lawful guardianship does not come into the picture.|
|Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.||The means used in case of abduction may be force, compulsion, or deceitful means.|
|Kidnapping is not a continuing offence||Abduction is a continuing offence|
|In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused.||In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.|
|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.||In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.|
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