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This Article defines about Kidnapping and Abduction and also lays a difference between them. The offence of kidnapping relates to taking away of minors and people of unsound mind whereas the offence of Abduction is in respect of all persons.

Section 361 Kidnapping from Lawful Guardianship

As per Section 361 Kidnapping from Lawful Guardianship means, “Whoever takes or entices any minor under (sixteen) years of age if a male, or under-(eighteen) years of age of 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: “Lawful Guardian” includes any person who is lawfully entrusted with care and 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.

Object of the Section

The purpose of this section is to protect minors and persons of unsound mind from being exploited and protect the rights of guardians who have the lawful charge or custody of their wards. Thus, absence of consent of the parent or guardian is the main ingredient of this section.

Ingredients

The following are the ingredients of Section 361:

  1. Taking away or enticing of a minor or a person of unsound mind : Enticing is inducing hope or desire in the mind of a person to make him do things which he wouldn’t do otherwise. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section. The expression used in Section 361, I.P.C. is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, “to cause to go,” “to escort” or “to get into possession”.
  2. Such minor must be under 16 years of age if a male and under 18 years of age if a female.
  3. The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.

The act of taking is not a continuous act and as such when once the boy or girl has been actually taken out of the keeping, the act is complete.

The Court in Vardargan V. State of Madras 1965 AIR 942, 1965 SCR (1) 243 highlighted the dichotomy between ‘taking’ and ‘allowing a minor to accompany a person’. Stating that the two are not synonymous held that where the minor having capacity to understand the consequences of her actions voluntarily joins the accused on her free will, the accused cannot be held liable for taking her   away from the keeping of lawfulmguardian.  The taking or enticing must also be without the consent of the guardian.

The consent of the minor is immaterial for this section and its only the consent of the guardian that will take the case out of the purview of this section.

The Supreme Court in Pradeep Kumar v. State of Bihar and Anr AIR 2007 SC 3059 held that the consent obtained by lying to the father of the girl regarding the purpose of taking his minor daughter away cannot be termed as consent under the purview of this section and such taking away would amount to kidnapping.

Section 363 Punishment for Kidnapping

As per Section 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.”

The punishment for the offence of kidnapping provides for both fine and imprisonment. Abduction means forcibly taking away of a person and moving him or her from one place to another against their will. Use of force is a necessary ingredient of abduction. Abduction is the criminal act of taking by force or strong persuasion of a wife, husband, child or other person.[1] It has also been defined as the illegal act of taking away a person by persuasion, fraud or by open force or violence. The offence of Abduction is mentioned under Section 362 of the Indian Penal Code.

Abduction Under Section 362 of IPC

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

The Section only gives a definition to the offence of Abduction which is not punishable per se. It is only punishable if it is accompanied with a criminal intent which is included in the subsequent sections of the Penal Code.

Ingredients of Abduction

  1. Forcefully Compelling or inducement of a person by deceitful means: The provision makes it amply clear that taking away of a person should be accompanied by either forceful compelling or by deceitful means, merely threatening to use force would not result in abduction of a person. The element of compelling by force of inducement by fraudulent or deceitful means is a necessary ingredient to amount the taking of person to abduction. Force has been defined under Section 349 of the Indian Penal Code and has the same meaning under this section. Inducement means “0to lead into” something and thus deceitful inducement would be misleading a person to do something which he or she wouldn’t ordinarily do.
  2. To go from any place/ Going of a person from any place: To constitute abduction, the person so abducted, must have gone from one place to another by compulsion of force or by inducement by deceitful means.
  3. Role of Consent: Consent of the person who is moved or taken away is of vital importance in abduction. Unlike kidnapping where consent of the person who is taken away is immaterial, in abduction consent given by the person moved will not amount to an act of abduction.

Illustrations

  1. A is a minor daughter of B. A voluntarily goes away with C and indulges in sexual relations with him. C cannot be held liable for abduction because A wilfully consented to go with him, there was no use of force or inducement.
  2. Y is a minor daughter of R. X forcibly takes away Y without the knowledge of R. Y runs away with Z while she is custody of R who is X’s relative. In this case, X is liable for abduction, however Z will be liable if he had some criminal intent to take away Y.

Abduction is not a substantive offence. It is however an auxiliary act or a subsidiary act which is only punishable when coupled with a criminal intent. Abduction is not a crystallised offence but a continuing one. It does not confine to the first time a person is taken away or moved from one place. It extends to every other person who is involved in the moving of the person by use of force or deceitful means.

Case Laws about Kidnapping and Abduction

Bhanukan’s Case

Chief Justice Wanchoo observed that there was no abduction because he was satisfied that the girl was not compelled by force or induced by any deceitful means to go with the accused. The girl being a minor had gone out with the accused to have sexual intercourse, the court held that she wasn’t abducted as no undue influence or force was used upon her.

Vinod Chaturvedi v. State of Madhya Pradesh

In the present case, the appellant was alleged to have abducted the deceased Brindaban. The process of investigation pointed out that Brindaban on being persuaded by the accused persons and Vinod in particular went inside his house, came out properly dressed to accompany the group to village Ramapura. Such conduct made it clear that Brindaban was not abducted the accused persons.

State of Assam vs. Goljer Ali and Nine Ors.

Abduction, as defined under Section 362 IPC contemplates both user of force or inducement by deceitful means. The deceased in the present case was offered a puff of Bidi and was therefore induced to go to the house of the accused where he has beaten to death.

Difference between Kidnapping and Abduction

BasisKidnappingAbduction
      ProvisionKidnapping is classified in Section 359 into two categories and is defined in Section 360 and 361 which relates to Kidnapping from India and Kidnapping from Lawful Guardianship.  Definition to the offence of Abduction is given under Section 362 of the Indian Penal Code.
  AgeThe offence of kidnapping relates to taking away of minors and people of unsound mind.The offence of Abduction is in respect of all persons.
Means EmployedKidnapping is an offence which involves taking away or enticing of a person.Abduction involves taking away of a person by fraud or by force.
      IntentionIntention of the person is of no significance. Once it is established that that taking away either outside India or outside the lawful guardianship is present, it amounts to kidnapping.Intention plays a major role in the offence of abduction. A person is punishable only if abduction is done with an ill intent or criminal intent.
Nature of OffenceKidnapping is a substantial offence and is punishable under Section 363 of the Indian Penal Code.Abduction is merely an auxiliary act and is not punishable unless it is done with a criminal intent.
  ConsentConsent of the person who is taken outside the custody of lawful guardian is immaterial.Consent given by the person who is taken, takes the act out of the purview of abduction.
Completion of OffenceOnce a person is taken out of the country or outside the custody of lawful guardian, the offence of kidnapping is completeThe offence of abduction involves forcibly or fraudulently taking of a person from one place to another, hence it is a continuing offence.
Difference between Kidnapping and Abduction

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