INTRODUCTION
The terms kidnapping and abduction are many times used interchangeably. The basic
constituent of both the offences though, is curtailment of personal liberty or movement by free will but, in spite of this similarity both the offences are poles apart and have been defined under different sections in IPC. On plain reading of the definitions, as given in the bare act, they might sound similar but, if one scrutinizes minutely, they constitute very different offences. Before going into detailed differences, we will first briefly see the definitions of each of them as they have been defined in the IPC and discuss their essential ingredients.
Kidnapping [ S. 359, 360, 361 IPC]
Kidnapping has been defined in Section 359 IPC, as of two kinds, kidnapping from India, and kidnapping from lawful guardianship. Kidnapping is made up of two words 'KID' and 'NAP' which literally means snatching or taking away a kid or child. Though, it is not confined to taking away of a child or kid only.
Section 360 IPC defines 'KIDNAPPING FROM INDIA' as taking away a person, beyond the
limits of India, without his consent or of some other person legally authorized to give consent on behalf of that person. Here, the essential ingredient is conveying the person beyond the geographical limits of India.[1] Kidnapping from India has been made a separate offence, because it has the effect of taking a person from the jurisdiction of the Indian Law enforcing agencies.
Section 361 IPC defines 'KIDNAPPING FROM LAWFUL GUARDIANSHIP' as taking or enticing away of a 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 without the consent of such guardian. The offence so defined under this section is against the Guardianship of a lawful guardian, hence only the consent of the guardian is relevant and the consent of the minor is immaterial. The object of this section is to afford protection and security to the wards and recognizes the right of the guardians to control and take charge of their wards.
Abduction [ S. 362 IPC ]
Abduction has been defined in Section 362 IPC as, by force compelling or by deceitful means inducing a person to go from any place. Fraud or force constitutes the offence of abduction. It is to be noted that abduction per se as defined under section 362 is not an offence. Only if it falls in the categories provided under sections 364, 365, 366, 367, and 369, will it amount to an offence.
Points of Difference
The distinction between the offence of ‘Kidnapping’ and ‘Abduction’ is often
misconceived and blurred. This is because both these offences at large affect someone's
personal liberty or movement with free will/consent. This is the point of similarity.
1 For definition of India, refer to S.18, IPC.
However, there are certain fundamental points of distinction between offences of
kidnapping and abduction, which make them altogether very different offences, which
may be summarized as follows :-
a. Age - Kidnapping from lawful guardianship can be committed only in respect of a minor
(below the age of sixteen years if male or eighteen years if female) or a person of
unsound mind.
Whereas, Abduction may be in respect of a person of any age hence, there is no bar to
any specific age of a person.
b. Guardianship - The person kidnapped is removed out of lawful guardianship and has
the effect of depriving a guard control over it's ward. Thus, a child without a guardianship
can't be kidnapped.
Whereas, guardianship is immaterial in determining the offence of abduction. As,
abduction refers exclusively to the person abducted. Hence, it is not necessary for the
person abducted to be in guardianship.
c. Means - In Kidnapping, the means used are irrelevant.Only requirement to bring an act
within the purview of this section, is to "take or entice" a minor or a person of unsound
mind from the keeping of the lawful guardian. In State of Haryana v Raja Ram[2], the court
held that taking or enticing need not be by means of fraud or force as even the
persuasion which has the effect of creating willingness in the mind of the minor to be
taken out of guardianship, is sufficient to attract this section.
Whereas, compulsion by force or deceitful means are the main ingredients of Abduction.
The movement of the person abducted must be controlled either by force or deceitful
means. In Gurucharan Singh's case, the accused threatened the prosecutrix with a pistol
and forced to go with him, such a taking was held to be abduction.
d. Intention - Kidnapping being an offence which has been created with a larger purpose
of securing rights of guardians and for the protection of minors, has been made a strict
liability offence, hence, intention of the offender is of no significance and is rather
immaterial. Once the factum of taking or enticing away of a minor or person of unsound
mind is proved, it is sufficient to convict a person for kidnapping.In the case of Queen v
Prince[3], the accused person's lack of knowledge regarding minority of the girl enticed
was held to be immaterial, hence intention on the part of the accused was held to be
immaterial.
The intention of the abductor is a very important factor for an act to come within the
purview of abduction. The only act, of compelling by force or inducing by deceitful
means, to go from a place, unless accompanied with some ill or criminal intent, is not
sifficient for conviction as abduction. Thus, intention of the abductor is a determining
factor whether to convict a person for abduction or not.
e. Nature of Offence - Kidnapping is a substantial offence and is punishable under Section
361. It is a complete offence in itself.
On the other hand, Abduction is an auxiliary act and is punishable only when committed
with either of the intentions as specified in sections 364 to 366, 367, 369. Thus,
3 Queen v Prince (1875) LR 2.
2 State of Haryana v Raja Ram, AIR 1973 SC 819
abduction as defined under section 362, per se is not an offence, unless accompanied
with some specified criminal intent.
f. Consent - The consent of the minor or of an unsound person is immaterial in case of
kidnapping as, such a person is unable to give free consent. The consent obtained from
such a person is tainted. That is the reason that 'take' as used in defining the offence of
Kidnapping from Guardianship, has been accompanied with 'entice' too.
Whereas, in the case of abduction, the consent of the person abducted( abductee) plays
a significant role. If such a consent is voluntarily given it completely condones the
offence and absolves the offender from any liability. As the essence of the offence of
abduction is restriction on free movement or movement against will/without consent.
g. Continuance - The moment the minor or the person of unsound mind, as the case may
be, is taken out of the 'keeping' of law guardianship, the offence of kidnapping
crystallizes into a full fledged offence. It is with regard to that moment of time when taken
out of the keeping of lawful guardianship. Hence, once a child has been kidnapped and
is taken out of the keeping of lawful guardianship, he is no longer a subject of
kidnapping.
Whereas, abduction is a continuing offence. It continues on till the abductee is kept on
moving from one place to another.
[1] For definition of India, refer to S.18, IPC.
[2] State of Haryana v Raja Ram, AIR 1973 SC 819.
[3] Queen v Prince (1875) LR 2.
References
1. https://www.google.com/url?sa=t&source=web&rct=j&url=https://indiankanoon.or
g/doc/990563/&ved=2ahUKEwjHmqvuwrr1AhX-83MBHQIKAbQQFnoECAQQAQ&us
g=AOvVaw2dLClrlvbVAyk0mXqAjMwK
2. P S A Pillai's CRIMINAL LAW (14th Edition) - K I VIBHUTE
3. https://www.google.com/url?sa=t&source=web&rct=j&url=https://en.m.wikipedia.o
rg/wiki/R_v_Prince&ved=2ahUKEwiE5vzLw7r1AhXTTGwGHWG6BLgQFnoECAoQ
AQ&usg=AOvVaw3Rmr7JZsH5cvJkXsZwEwrv
This article is written by Chetan Juneja of Campus Law Centre, Faculty Of Law.