This article is written by Amit Garg of National University of Study and Research in Law, Ranchi and Pragya Agrahari of Amity Law School, Lucknow. The author through this article brings out the difference between kidnapping and abduction under the Indian Penal Code.

It has been published by Rachit Garg.

Introduction

We often see in movies or serials, the criminal forcefully taking away any person to another place in order to extract a ransom from his/her family or beloved. We usually call it a ‘kidnapping.’ But we are less aware of the term ‘abduction.’ Abduction is similar to kidnapping but it needs certain purposes to be accomplished after taking away in order to constitute the crime. Whereas in kidnapping, just doing the act of taking away constitutes a crime.

According to NCRB Crime in India Report 2021, India reported 1,01,707 cases of kidnapping and abduction. It shows a halt of 19.9% in cases as compared to cases reported in 2020. Of those kidnapped and abducted, 17,605 were male, 86,543 were female and one was transgender. The various reasons for kidnapping and abduction, according to statistics are-

• Ransom
• Forced marriage
• Murder
• Procuration of minor girls
• Purpose of Begging
• Exportation of girls to foreign countries

The leading reason for this crime is to compel a girl for marriage which accounts around one-fourth of all the cases.

The Indian Penal Code, 1860 defines both the offences of kidnapping and abduction in Section 359 and Section 362 respectively. They are categorised under the offences affecting the human body (Chapter XVI of IPC, dealing with offences affecting the human body).

Overview of the difference between Abduction and Kidnapping

Kidnapping

The word ‘kidnapping’ has come from two words, ‘kid’, which means child and ‘napping’, which means to steal. Thus, it literally means stealing a child. 

Section 359 of the Indian Penal Code classifies kidnapping into two categories:

1. Kidnapping from India
2. Kidnapping from lawful guardianship  

In India, the offence of kidnapping is not confined to only the stealing of children. It has given wider scope to include the act of carrying away a human being without his/her consent or without legal guardians’ consent, in the case of males under 16 years or females under 18 years.

In the case of Thakorlal D. Vadgama v. State of Gujarat (1973), where the accused, Thakori Lal was held liable for kidnapping under Section 363. He kidnapped a minor girl, Mohini from the lawful guardianship of her father by inducing her to leave her father’s place and by encouraging her that he would give her shelter. The Supreme Court in this case held that mere circumstances that his action does not cause her to immediately leave her parental home would not be a defence for the accused to absolve him from the offence of kidnapping. 

Types of Kidnapping

Kidnapping from India

Section 360 provides for kidnapping from India. It states, “ 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.”

The necessary elements to constitute this offence are-

• Conveying the person beyond the limits of India,
• Without the consent of such person or person legally authorised to give consent on behalf of that person. 

The offence under this section would not be complete until the person actually reaches not only a foreign territory but his destination as well. Unlike Section 361, this offence is not restricted to minors or persons of unsound mind. It may be committed against any person, male or female, major or minor, irrespective of nationality and age. 

Kidnapping from lawful guardianship  

Section 361 provides for kidnapping from lawful guardianship.  It states, “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 a such guardian, is said to kidnap such minor or person from lawful guardianship.” 

The necessary elements to constitute this offence are-

• Taking or enticing a minor or unsound person,
• Such minor should be under 16 years of age in case of male or under 18 years of age in case of female,
• Taking or enticing out of the keeping of lawful guardian,
• Without the consent of the legal guardian.

The offence under this section is complete as soon as a minor or person  of unsound mind is actually taken away from legal guardianship. Moreover, the consent of minors in respect of this offence is completely immaterial.  One exception provided under this section is that if a person in a good faith believes himself to be a father of an illegitimate child or believes himself to be entitled to the custody of such child, takes away the child out of the custody of the lawful guardianship without their consent, not for any unlawful or immoral purposes, would be exempted from the liability under this section. 

Kidnapping for begging (Section 363A)

Section 363A was inserted by the Indian Penal Code (Amendment) Act, 1959 and came into force on 15 January 1960. This section further extends the scope of Section 363 of the Indian Penal Code, which provides punishment for “Kidnapping or maiming a minor for the purposes of begging”. It provides severe punishment for such offence, which may extend to  10 years imprisonment of either description and a fine for kidnapping a minor for purposes of begging and life imprisonment for maiming a minor for purposes of begging. 

The main elements for this offence are-

• Minor should be kidnapped or maimed,
• Kidnapper should not be a lawful guardian,
• Kidnapper should obtain custody of such minor,
• Minor should be used for purposes of begging.   

Is kidnapping bailable? 

Section 363 is a bailable offence, that is, the accused can claim for bail as a matter of his right. But in the state of Uttar Pradesh, there are stringent laws for this offence. It is declared non-bailable in Uttar Pradesh after the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1983 (Section 12).

Moreover, as per Section 86 of the Juvenile Justice Act (Care and Protection of Children), 2015, the offence of kidnapping becomes non-bailable whereas it is bailable under the Indian Penal Code. Section 84 of the Act also removes the upper limit of 16 years on the age of male for the offence of kidnapping and applies to any person, irrespective of gender, under 18 years of age who is kidnapped from a lawful guardian.  

In the case of Kashir Ahmed v. State of Himachal Pradesh (2018), the accused of kidnapping has been granted bail. According to the prosecution, the accused kidnapped a 16-year-old girl on the pretext of  marriage and took her to Saharanpur, where he allegedly raped her for three days. But after taking evidence and examination of the victim, the court concluded that the victim was on friendly terms with the accused and has gone with the accused of her volition. Hence, the court allowed bail to the accused after furnishing bonds and sureties.  

It may be wondered by the common people as to how something heinous like kidnapping has been made bailable. Supreme Court’s observation in the case of Sanjay Chandra v. CBI (2011), with respect to bail, can be used to answer such a false notion-

“ The object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative.”

Is kidnapping cognizable or non-cognizable?

Section 363 is cognizable under the Indian Penal Code, that is, police officers may arrest an individual without a warrant issued by the Magistrate. After the arrest of the accused, he/she should be presented before the Magistrate within 24 hours excluding the time for the journey in taking the accused to the office of the Magistrate.  The offence of kidnapping is triable by the Magistrate of 1st class.

Is kidnapping compoundable or not?

Section 363 of the Indian Penal Code is non-compoundable in nature, that is, the offence of kidnapping cannot be compromised between the parties. However, in some special cases, the Supreme Court may have the power to direct the compoundability of non-compoundable offences.  

Moreover, in the case of Ram Pujan v. State of U.P (1973), the High Court in view of compromise between the parties in non-compoundable offences has reduced the amount of imprisonment. Then, the case came to the Supreme Court, where the apex court held that:  “The major offence for which the appellant is convicted is no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence.”

Abduction

Abduction means taking away any person by using deceitful tricks for the purpose of committing some offence. 

The necessary elements to constitute this offence are-

• Use of compelling force or use of any deceitful means,
• Inducing the person from one place to another,
• With the intention to commit any offence.

The force or compulsion is necessary to constitute the crime of abduction. It means if a girl voluntarily goes out with any person without any force or compulsion, that person will not be tried for the offence of abduction. 

The use of ‘deceitful means’ will not only cover fraud or misrepresentation but also the act of taking away someone by inducing him/her on a pretext. 

In the case of Kavita Chandrakant Lakhani v. State of Maharashtra (2018), it was well established that the mere abduction of a woman is not sufficient to attract the offence unless it was proved that the accused abducted the woman with an intention to compel her marriage or to force or seduce her to illicit intercourse with another person.

Difference between abduction and kidnapping

Age of the Aggrieved Person

• In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC is 16 in case of males and 18 in case of females (as seen in the case of State of Haryana v Raja Ram).
• In case of Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be booked with abduction (as in the case of Bahadur Ali v King Emperor).

Removal from Lawful Guardianship

• Here the lawful guardianship shall include any person who has been authorized by law to take care of the person who has yet not attained the age of majority. A lawful guardian may be the parents, in-laws, etc.

• As Kidnapping takes into consideration the age of the person being kidnapped, the crime involves the taking away from the guardianship of a lawful person who has been authorized by law to take care of such minor.
• Since Abduction considers only the person who has been abducted, lawful guardianship does not come into the picture.

Means

• Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.
• The means used in case of abduction may be force, compulsion, or deceitful means.

Consent

• In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent. The consent obtained from the person shall be a tainted one (as seen in the case of State of Haryana v Raja Ram).
• In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.

The intention of the Accused

• In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused (as in the case of Queen v Prince [3]).
• In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.

Punishment

• Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.
• Some specific punishments as provided for kidnapping under the Indian Penal Code are:

• Abduction is only an auxiliary act and is not punishable in itself. Therefore, there is no general punishment for abduction in the Indian Penal Code.
• But some specific types of abduction attract the following punishments:

Continuity of the Crime

• Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship.
• Abduction is a continuing process and it this the person so abducted is removed from one place to another.

References

• K.D.Gaur, “Textbook on Indian Penal Code’, Universal Lexis Nexis (7th Edition).

• https://getlegalindia.com/kidnapping-ipc/ 
• https://lexforti.com/legal-news/kidnapping-and-abduction-ipc/