Theoretical overview
It a myth that kidnapping is only of minors and abduction is only of the majors. In reality, kidnapping is of minors but not just only of minors whereas, abduction is of adults but not just only of adults.
Section 359 of Indian penal code 1860 defines the there are two types of kidnapping which is mentioned under section 360 and section 361. Section 360 defines kidnapping from India which could be of minor as well as of a major. When any person of any age is conveyed beyond the territorial limits of India without his or her consent and in case of minor without the consent of someone who is authorized to give consent on their behalf is said to commit the offense of kidnapping from India. Definition of consent is same as the definition of consent mentioned in section 90 of Indian penal code.
If a person is apprehended before he crosses the Indian border, then the offence will not be complete. At best, it may amount to an attempt to commit the offence of kidnapping from India under section 360 of Indian penal code.
Section 361 defines kidnapping from lawful guardian which could be of minor or a person of unsound mind only.
Essentials: –
- there should be taking away or enticing out of lawful guardianship without consent
- it should be of a minor (boy under 16 and girl under 18) or a person of unsound mind.
The offence of abduction is mentioned under section 362 of Indian penal code as whoever by force compels or by any deceitful means induces any person to go from any place to another is said to abduct that person. Abduction is not a per se crime under section 362 but it is a punishable crime if abduction is done in combination with an intent.
If abduction is done with the intent to commit murder, then the person can be held liable for the imprisonment up to 10 years under section 364. If it is for ransom, then there is a provision of death penalty or life imprisonment under section 364a. Also, if abduction is done with intend to compel a girl for marriage, then the person can be held liable for the punishment under section 366 of Indian penal code. Unlike kidnapping, abduction is a continuing offence as a person is being abducted not only when he is first taken away from any place, but also, when he subsequently removed from one place to another.
Relevant sections
Section 359. Kidnapping – Kidnapping is of two kinds: kidnapping from 1[India], and kidnapping from lawful guardianship.
Section 360. Kidnapping from India – Whoever conveys any person beyond the limits of 1[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].
Sections 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Section 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.
Section 363. Punishment for kidnapping – Whoever kidnaps any person from 1[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.
Section 364. Kidnapping or abducting in order to murder – 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
Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc – 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 be punishable as aforesaid].
Important case laws
Varadrajan vs State of Madras (1965) – a girl few away with his boyfriend to marry him. The court held that he can not be held liable for the offense of kidnapping as there is no enticing away or taking away.
Gurcharan Singh vs. State (1972) – the accused induced a minor girl to go with him by threatening her by pointing a pistol at her, the act amounted to abduction and not kidnapping from lawful guardianship because the element of compulsion by force was present in the case.
Points to remember
- Section 359 of Indian penal code 1860 defines the there are two types of kidnapping which is mentioned under section 360 and section 361
- If a person is apprehended before he crosses the Indian border, then the offence will not be complete. At best, it may amount to an attempt to commit the offence of kidnapping from India under section 360 of Indian penal code.
- Abduction is not a per se crime under section 362 but it is a punishable crime if abduction is done in combination with an intent.
- Unlike kidnapping, abduction is a continuing offence as a person is being abducted not only when he is first taken away from any place, but also, when he subsequently removed from one place to another.
