KIDNAPPING & ABDUCTION – PROVISIONS AND DIFFERENCES

Profile of the Author: Tanishk Jandial is a 2nd year BA.LLB (Hons.) student at Dogra Law College, University of Jammu.

INTRODUCTION

In the terminology of the Common Law in many jurisdictions (according to Black’s Law Dictionary), the crime of kidnapping is labeled abduction when the victim is a woman. In modern usage, kidnapping or abduction of a child is often called child stealing, particularly when done not to collect a ransom, but rather with the intention of keeping the child permanently.

The number of kidnappings and abductions of women and girls have jumped a whopping 163.8% since 2002. Violent crimes or crimes that fall under the Indian Penal Code (IPC) have jumped about 34% over the last 10 years, from about 1.7 million in 2002 to 2.4 million in 2012. On an annual basis, violent crime rose 3% from the previous year’s 2.3 million (fastest growing crime in India). In 44% of cases related to the kidnapping or abduction of females, the cause was not defined. Maximum victims kidnapped or abducted were in the age group of 18 to 30 years (21,924 victims), and 16 to 18 years (20,838). Child trafficking remains rampant in many parts of India. According to Child Line India, over 40,000 children are kidnapped every year. About 11,000 of these cases sadly remained untraced. New Delhi has particularly high numbers of kidnapping in India. The majority of abducted children are exploited as sex slaves or trafficked for forced labor. Many others are snatched from their parents and sold for adoption to childless couples. Kidnappings and abductions have soared since 2001. The National Crime Records Bureau (NCRB) shows that their share in total crimes against women nearly doubled from 10% in 2001 to 19% in 2016.

What is kidnapping?

The word ‘Kidnapping’ has been derived from the word ‘kid’ meaning ‘child’ and ‘napping’ meaning ‘steal’. Thus, kidnapping literally means child-stealing. And the word kidnapper originally (during the 17th century) meant to signify one who stole children and others to provide servants and laborers for the American plantations.

The offence of kidnapping is an aggravated form of wrongful confinement and is, therefore, an offence in which all the elements of that offence are necessarily present. It is, however, confinement of such a serious form that the Code treats it as a distinct offence. But kidnapping does not include the offence of wrongful confinement or keeping in confinement of a kidnapped person.

Kinds of Kidnapping, 359- According to Section 359, IPC, Kidnapping is of two kinds:

A. Kidnapping from India (section 360, IPC), and

B. Kidnapping from lawful guardianship (section 361, IPC).

The meaning of kidnapping is not given as such, but the kinds of kidnapping are provided in the code. This will help us understand the actual sense of what kidnapping is.

A. Kidnapping from India

360. Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized 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 attract this section there must be-

(1) Conveying of any person beyond the limits of India.

(2) Without the consent of that person, or of someone legally authorized to consent on behalf of that person.

The offence under this section may be committed in respect of any person, male or female, major or minor and irrespective of his nationality.

B. Kidnapping from Lawful Guardianship

361. 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.

Punishments for Kidnapping-

363. 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.

What is Abduction?

362. Whoever b force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Abduction in common language means the carrying away of a person by fraud or force. According to section 362, abduction takes place when a person by force compels, or by any deceitful means induces another person, to go from any place. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in itself but when it is accompanied by a certain intention to commit another offence, it per se becomes punishable as an offence.

Essentials of the Abduction-

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.
2. To go from a Place:
   In the offence of abduction, the movement of a person being abducted is necessary.

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 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 abducting, consent may play a role for condoning the offence.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQ:

Q. What should you do if your child is kidnapped or abducted?

A. If possible call the police and file a report. Also, ask the law enforcement agency to place your child information in NCIC (the National Crime Information Computer System).

REFERENCES

1. ‘image sources’ https://www.thenewsminute.com/article/telangana-class-8-student-kidnapped-way-school-found-abandoned-farm-67079 accessed on 13 July,2020
2. https://www.legalbites.in/kidnapping-and-abduction/ accessed on 13 July,2020
3. Indian Penal Code 1860, ss 359-369
4. Indian Penal Code 1860, s 359
5. Indian Penal Code 1860, s 360
6. Indian penal Code 1860, s 361
7. Indian penal Code 1860, s 362
8. Indian penal Code 1860, s 363