Kidnapping and abduction both are the criminal offence. These offences are placed under the INDIAN PENAL CODE. The offence of kidnapping and abduction is provided under section 359 to 363 of IPC. For both the offences, there are specific punishments given under the IPC.
Kidnapping means that any person unlawfully seizing and carry away another person by the means of fraud or force, or without the consent of that person.
The kidnapping is of two types according to the section 559 of IPC. First, under section 360 those kidnappings are committed within the India and secondly, under section 361 this kidnapping from lawful guardianship.
The abduction is also type of kidnapping but not called to be kidnapping. It defines under the section 362 of IPC.
ACCORDING TO IPC
The section 359 defines the kidnapping which is two kinds- kidnapping from India and kidnapping from the lawful guardianship. The victim for the kidnapping could be any one either male or female and minor or major.
The kidnapping from India define under section 360 of the IPC, 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.
There are some main ingredients for the kidnapping from India-
- To conveying the any person for beyond the limits of India.
- The convey is without the consent of that person
If the person give the consent for conveying, at the time when person attaining majority age. The accused is not committed offence. The age of majority for giving the consent for the kidnapping by male is 16 years and female is 18 years.
The kidnapping from lawful guardianship define under the section 361 of the IPC, whoever takes or entices any minor under sixteen years 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.
Exception- This section does not extent to that act of any person who done in good faith believes himself to be a father of the illegitimate child or done in good faith believes to be a lawful custody of the child, unless such the committed act is not a immoral or unlawful purpose.
There are some main ingredients for kidnapping from lawful guardians
- Take and entices away a minor or any unsound mind person.
- The minor must be under the age of 16 if a male or under the age of 18 if a female.
- Taking or enticing from out of the keeping lawful guardian of such minor or the unsound mind person.
- The taking or enticing without any consent from the lawful guardian.
PUNISHMENT FOR KIDNAPPING
The punishment for kidnapping is defined under the section 363 of the IPC, whoever committed kidnapping or kidnaps any person from India or from the lawful guardianship, shall be punishable for the seven year imprisonment and also be liable for the fine.
In the case of Chandrakala v. Vipin Menon, the supreme court declined to convict the father who was accused of kidnapping of his own minor daughter who was living with her maternal grandfather due to some relationship of her parents. The court held that father is not guilty for the offence because father is the nature guardian of the minor daughter, he cannot kidnap her min or daughter.
The abduction is defined under section 362 of the IPC, it says that whoever by force compels, or by any deceitful means induces, any person to go from any place, said to abduct that person.
There are some main ingredients for the abduction that are-
- Forceful compulsion or inducement by the deceitful means.
- The force of compulsion or inducement by deceitful for going a person at any place.
In the case of Mahbub, an orphan girl aged about 17 years was brought by M as his own daughter. M’s neighbour A induced her to leave home on the assurance that either he himself would marry her or get her married. He did neither, instead dissipated her himself and handed over to a friend who also proceeded to connection with her. A was held guilty for the offence. It was held that the expression of deceitful means is wide enough to induce the girl to leave the guardian’s home by means the person she went to either marry her himself or arrange her for marriage.
Where a girl cross the aged of 16 years for the free consent and will go to the accused for sexual intercourse and there was no evidence of use of force or inducement by the deceitful means, the accused would not be guilty under this section.
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION
|The offence of kidnapping is committed with respect of a minor, if a male under the age of 16 years or if a female under the age of 18 years.||While abduction can be committed in respect of a person of any age.|
|In kidnapping, an orphan or a child without guardian cannot be kidnapped.||Whereas in abduction, it is not required that the abducted person should be ion the keeping of any body.|
|Simply taking or enticing away a minor or a person with unsound mind comes under kidnapping||Where in abduction, there must be use of force, compulsion or deceitful means.|
|The consent of kidnapping is immaterial because enticed person are not competent for the valid consent||In abduction the consent is freely and voluntarily given for the person moved.|
|Kidnapping is not a continuing offence, it is complete the moment a person is deprived of his lawful guardianship.||Where, the abduction is continuing offence, because it continues as long as the person is moved one place to another place
|Kidnapping is a substantive offence, which is punishable offence under the IPC||Where, the abduction is an auxiliary act, it is not punishable but it is criminal only when the act done with intention of commit the section 364 of IPC.|
Author: Manish Kumar,
Delhi Metropolitan Education( Affiliated to GGSIPU) 2nd year (BALLB)