Kidnapping in a general sense means taking people away by using force or fraud, against their will for a malicious purpose. However, in the legal realm, the term kidnapping has a different meaning altogether. Another misconception that exists is regarding the differentiation of kidnapping and abduction. Even though both are quite different from each other they are often considered to have the same meaning.
Kidnapping: Under section 359 Indian Penal Code 1860, there are two types of kidnapping
- Kidnapping from Lawful Guardianship (Section 360, IPC): Whoever entices or takes away a minor, below sixteen years of age for males and 18 years of age for females without the consent of the legal guardian of that person will be liable for the offense of kidnapping. This section not only extends to minors but also covers people who are of unsound mind. However, if the person who takes the child did it in good faith believing that he is the father of the illegitimate child or he did it believing that he should have the lawful custody of the child then he will not be charged for the offence of kidnapping. Here the consent of the child is immaterial, it all depends upon the consent given by the legal guardian.
Thakorlal D. Vadgama V. The State of Gujarat. In this case, the accused enticed a sixteen-year-old girl to come live with him, he bought her various commodities like expensive pens, clothes, jewellery, etc, and often wrote letters to entice her. This induced her to leave her parents and to go with the accused. Thus, the accused was charged with the offence of kidnapping from lawful guardianship.
Thus, to constitute the offence of Kidnapping all the three essentials should be met
- A person should be a minor or of unsound mind
- Must be taken away or induced to leave the legal guardianship of that person
- There should not be any consent from the legal guardian of that person
In the case of kidnapping, there need not be an intention to cause harm or commit an offence, the act in itself is punishable.
In the state of Haryana vs Raja Ram, in this case, the accused was trying to entice a fourteen-year-old girl to come live with him. The father of the girl found about this and banned the accused from visiting the girl. Thus, the respondent started acting as an intermediary between the girl and the accused. On the request of the accused, the respondent enticed the girl to come to his house to be entrusted to the accused. The court ruled that since the respondent enticed the minor girl to leave her lawful guardianship without their consent, he shall be held liable for the offence of kidnapping.
However, if a minor or a person of unsound mind leaves the lawful guardianship of that person without any inducement or force from anyone then it cannot be held as kidnapping.
In S Varadarajan v. State Of Madras, a girl who was almost eighteen years old left her parents and agreed to get married to the accused, even though a charge of kidnapping was filed against the accused, the court held that the girl left the legal guardianship of her parents on her own accord. Thus the accused cannot be held for kidnapping as there was no inducement or force.
- Kidnapping from India (Section 361, IPC): Where kidnapping from lawful guardianship only extends to minors and people who are of unsound mind, kidnapping from India extends to everyone. Whoever takes a person outside of the geographical boundary of India without the consent of the said person has committed the offence of kidnapping from India.
The punishment for both the cases of kidnapping includes imprisonment for a term which may extend to a period of seven years and may also be liable to pay a fine.
Abduction: According to section 362 of the Indian Penal Code, 1860, whoever induces any person to move from any place through the use of force or fraud will be chargeable for committing the offence of abduction. Abduction is a continuing offence which means it continues as long as the person is displaced from his original place through force or fraudulent means.
ESSENTIAL INGREDIENTS FOR ABDUCTION
- Moving a person from one place to another
- Use of force or deceitful means
An important essential for abduction to be punishable is the intention to commit an offence, this is because abduction alone is not punishable as it is an axillary offence.
Malleshi v. State of Karnataka . In this case, the accused met with a college student saying that he knew his father and asked him to accompany the accused to his jeep saying that he wanted to enquire about the fee structure of the college in which he studied. They travelled for some time in the said jeep and the accused asked for the phone number of the student’s father to demand a ransom. The student was able to escape the jeep with the help of the driver of the jeep. After which he gathered the villagers and the police caught the accused. Here the court held that the accused were liable for abduction as they used deceitful means and a ransom was demanded to release the student, thus the abduction was accompanied with an ill intention making them liable
The intention to commit the offence must be existent when the abduction is done, if the intention to commit the offence is formed at a later stage then the person won’t be liable for abduction.
The State vs Ashiruddin Master And Ors. In this case, the charge that was filed against the accused was that he along with two others abducted a girl to compel her to marry one of the accused (acquitted), and later one of the accused tried to have an illicit relationship with the girl. The court was of the opinion that while the girl was abducted the accused did not have any intention to have an illicit relationship with the girl and since abduction alone is not an offence, the court acquitted the accused.
If the abductee gives consent to the act knowing the consequences of the act, then the abductor will not liable for abduction.
Lekh Raj Sharma v. Aashish Kumar, in this case, the complainant filed a case stating that the accused abducted her daughter, however upon the findings of the court it came to light that the daughter of the accused was a nineteen-year-old girl who eloped on her own accord with the accused, thus the court ruled that there was no abduction.
PUNISHMENTS FOR AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION
- Kidnapping for begging (Section 363A): Imprisonment up to 10 years and fine
- Kidnapping or abducting for Murder (Section 364): Imprisonment for life or up to ten years and fine
- Kidnapping or abducting for Ransom(Section 364A): Death penalty or imprisonment for life and fine
- Kidnapping or abducting for wrongful confinement (Section 365): imprisonment for seven years and fine
- Kidnapping or abducting for compelling marriage (Section 366): imprisonment for ten years and fine
- Kidnapping or abducting for causing grievous hurt or slavery (Section 367): imprisonment for ten years and fine
- Wrongful confinement or concealment of a kidnapped or an abducted person (Section 368): Treated and punished as those who Kidnap or abduct a person for wrongful confinement
- Kidnapping or abducting a child under ten years for stealing his or her movable property (Section 369): imprisonment for seven years and fine
Kidnapping and abduction are often misunderstood; these terms are different from each other considering their basic structure. Where Kidnapping in itself is an offence abduction is only an axillary offence. However, they also share similarities when it comes to the aggravated forms of these offences. To differentiate both these offences in the simplest form, kidnapping applies to minors and people of unsound mind while abduction extends over everyone. But while interpreting these laws, care must be taken to understand what differentiates both of these laws.
Author(s) Name: Tarul Joseph Thottungal (Kristu Jayanti College of Law)
- 1973 AIR 2313, 1974 SCR (1) 178
- 1973 AIR 819, 1973 SCR (2) 728
- 1965 AIR 942, 1965 SCR (1) 243
- (2004) 8 SCC 95
- 1951 CriLJ 698
- PSA Pillai’s Criminal Law 14th Edition