Introduction
No place on the planet is secure. Even if the degree or intensity of the crime may vary, crime is still committed in our neighborhood and across the world. Most crimes have legislative definitions in criminal law, although the penalty varies by jurisdiction. Kidnapping and abduction are two crimes that are on the rise, and they mainly affect children. Both offenses are grave, and the penalties vary according to the severity of the crime. Despite the fact that many people confuse kidnapping with abduction, the two are legally distinct crimes with distinct meanings.
Both abduction and kidnapping are often used as alternatives for one another. The forceful abduction, theft, or carrying away of a person from one’s own nation to another was known as kidnapping under common law. Kidnapping is the act of removing someone against their will by means of violence, threats, or deception. Kidnapping may be carried out for a ransom, as well as for political or other reasons. A person is abducted when a criminal persuades, defrauds, or uses open force or violence to take them away.
When it comes to crimes like abduction and kidnapping, the differences are not always clear. Abduction and kidnapping are also referred to in certain state laws as “abduct” and “abduction, respectively”. Both words, however, relate to an individual being unlawfully taken or detained by another. Kidnappings are often motivated by anything more than pure evil, such as greed, vengeance, lust, or political pressure. Abduction may have a purpose or it could be random.
Kidnapping
Although all kidnappings begin with abduction, not all abductions result in kidnapping. Since the late 17th century, the definition of kidnap has been “to take children in order to supply slaves to the American colonies,” from kid, – “child,” and nap, – “snatch away. “The Indian Penal Code, on the other hand, doesn’t only apply to child theft. When it comes to the definition of kidnapping, it’s been broadened to include things like taking someone away from their legal guardianship without their permission.
Kidnapping is defined as the illegal and forced captivity of another person. It’s a common-law crime, and the most important element is that the victim’s participation is a voluntary act. As a result, it’s a severe accusation since it involves restricting the freedom of someone else.[1]
The Basics of Kidnapping as a Crime[2]
Kidnapping from legal guardianship is a crime that requires the following elements to be present:
1. Taking or enticing away a minor or a person of unsound mind. In Biswanath Mallick vs. the State of Orissa[3], the definition of ‘Enticing’ is persuading a minor to go to the abductor of her own will. There’s a difference between taking and enticing. When the kid is taken away, the child’s psychological state is meaningless. However, the term ‘entice’ implies encouragement or allurement.
2. This minor must be under the age of 16 in the case of a male and under the age of 18 in the case of a female. As in Queen vs. Prince[4], if the abducted girl is found to be under the age of 18, the kidnapper will be held liable, even if he had a bona fide belief and reasonable grounds for thinking she was above the age of eighteen.
3. Taking or enticing must occur when such a juvenile or person of unsound mind is not under the supervision of his or her legal guardian.
Taking or Enticing
- As neither taking nor tempting are defined in the code. The term “taking” does not imply aggression. It indicates the absence of any helpful or proactive energy.[5]
- Furthermore, a child’s consent is void. Forcing the child or unsound person to go along with or be carried away by the accused isn’t a problem, but there must be some explicit conduct done by the accused.[6]Offering something attractive may be described as tempting.
- In the case of S Varadarajan v. the State of Madras[7], the court examined the facts that the daughter, who is nearly majority age, had willingly left the father’s home. She tied the knot with the accused man in a government-issued registry office. The judge ruled that the accused had no active involvement in persuading the victim to leave the home. Having reached this conclusion, the court ruled that such an act did not violate Section 361 of the Indian Penal Code.
- State of Haryana v. Raja Ram[8] may be used to better comprehend the decision above. State of Haryana v Raja Ram included a 14-year-old prosecutrix who was lured away from her legal care by the defendant. It was decided by the Supreme Court that the defendants’ persuasion produced a willingness on the part of the child to be separated from her legal care, and therefore amounted to ‘kidnapping’.
- When asked if this amounted to an abduction from the legal guardianship, the Supreme Court said yes. It said that the provision does not need the use of force or deception. The accused’s active involvement in convincing her to leave her legal guardian’s home drew the section’s attention. As a result, he was held responsible under Section 361 of IPC.
- The accused’s purpose to take or entice must be without the permission of such guardian- In Chajju Ram vs the State of Punjab, a young girl was taken out of the home for just around 20 – 30 yards. Because the distance doesn’t matter, it was assumed to be kidnapping.
4. In the case of minor females, this Section 361 applies regardless of whether she is married or not.
5. The difference between being taken away and letting a child follow –
- The Supreme Court noted in Vardrajan vs. State of Madras[9] that there is a distinction between taking away a child and permitting the minor to follow. If a person intentionally performs an act that he has reason to think would lead the kid to leave the guardian, it is equivalent to taking the child away; nevertheless, if the child follows a person even when a person does not do anything to encourage a child to leave his guardian, he cannot be held liable.
- For example, if a kid follows an ice-cream seller without any encouragement from the seller and the guardian fails to maintain watch, the vendor cannot be held liable under this provision.
Kidnapping Motives:
- Money: Kidnapping someone and holding them hostage for ransom
- Personal: To exact vengeance
- Political: To exert pressure on the government to make a concession
- For rape
- To Seek Thrill: To enjoy the rush of exerting power over someone else.
Abduction
Abduction is defined as the forcible or fraudulent removal of a person. Taking someone through force, deception, or violence is referred to as abduction.
According to Section 362 of the Indian Penal Code, “abduction” is defined as when someone either forces or encourages another person to leave a location, that person has abducted the said person.
In the case of Bahadur Ali vs King-Emperor[10], the court found that pretending to be a police officer and holding a young woman hostage in one’s home for a ransom of Rs. 600 constitutes the crime of abduction.
In the case of Gurucharan Singh vs. the State of Haryana[11], the prosecutrix was threatened with a gun by the accused and compelled to accompany him, and such removal was deemed abduction.
The basics of abduction as a crime
1. Using Force or False or misleading Methods:- In order to be found guilty under this provision of the law, the use of real force must have occurred rather than just a threat to use force. The employment of deceptive methods instead of abducting a person is likewise a crime according to this provision of the law.
2. To go on from a certain spot:- A person being abducted must be in motion for the crime of Abduction to be committed. Abduction is a continuous offense that involves not only transferring the victim from one location to another but also relocating the one being taken from one location to another. If a victim is repeatedly turned over to other people, each of those people is now responsible for abduction if they have the purpose to do so.
Motives behind Abduction
- To exact vengeance or commit murder is a personal decision.
- Rape
- Selling the victim’s body for the purpose of prostitution.
- To Seek Thrill: To enjoy the rush of exerting power over someone else
Difference Between Kidnapping And Abduction
| Basis of Difference | Kidnapping | Abduction |
|
Provision under IPC |
A kidnapping is divided into two types under Section 359: kidnapping from India and kidnapping from lawful guardianship, which is described in Sections 360 and 361 of the Penal Code. | Section 362 of the Indian Penal Code provides a definition for the crime of abduction. |
| The person’s age (Minor or Major) | It is only committed in the instance of a minor, i.e., a boy under the age of 16 and a girl under the age of 18, or a person of unsound mind. | It’s a crime against anybody, regardless of their age. |
|
Guardianship
|
The kidnapped child is no longer under the legal care of their parents or other family members. Without guardianship, a child cannot be kidnapped. | The presence or absence of a guardian has no effect on whether or not an abduction is unlawful. It’s all about the abducted individual. |
|
Means Used
|
Kidnapping is the act of forcibly removing a child from parental care. It’s possible that the methods employed to kidnap a child are legitimate. | Force, coercion, or deception are all approaches used in abduction. |
| Consent | It makes no difference whether the one being enticed agreed or otherwise. The consent of the child removed from the care of a legal guardian is irrelevant. | If the individual being abducted gives their consent, the conduct no longer falls within the definition of abduction. |
| Intention | Taking someone away from their home country or their legal guardianship is considered kidnapping if it is proven. | The offender’s intent is critical in determining the severity of the crime. As a result, someone is only responsible if the conduct is motivated by malice. |
| Completion of offense | This is not a reoccurring offense. The offense of kidnapping is complete when a victim is taken out of the country or removed from the care of a legal guardian. | Abduction is a crime that continues as long as a person is forcefully or unlawfully taken from one location to another. |
| The kind of offense | Kidnapping from guardianship is a serious crime punished under Section 363 of the Penal Code. | Unless accompanied by a purpose described under section 364-366, abduction is supplementary conduct that is not criminal on its own. As a result, in order to punish an offender, a specific goal must be established. |
Punishment of Kidnapping
| Kidnapping’s several types | Punishment | IPC Section |
| For the purpose of begging | Fine + 10 Years | 363A |
| In order to murder | Fine + 10 Years | 364 |
| For ransom | Fine + 10 Years | 364A |
| Intent to imprison someone against their will | Fine + 7 Years | 365 |
| Forced marriage | Fine + 10 Years | 366 |
| To put someone in danger of serious injury or death | Fine + 10 Years | 367 |
| Kidnapping a minor under the age of 10 to commit theft | Fine + 7 Years | 369 |
Punishment of Abduction
| Abduction’s several types | Punishment | IPC Section |
| In order to murder | Fine + 10 Years | 364 |
| Intent to imprison someone against their will | Fine + 7 Years | 365 |
| Forced marriage | Fine + 10 Years | 366 |
| To put someone in danger of serious injury or death | Fine + 10 Years | 367 |
| Abducting a minor under the age of 10 to commit theft |
Conclusion
Kidnapping and abduction are terrible crimes regardless of their kind. Both include the wrongful holding of a person in exchange for an advantage or concessions.
However, kidnapping and abduction serve as an easy way for criminals to gain power and privilege while leaving their victims emotionally drained and traumatized for the rest of their lives. Kidnapping or abduction is a crime regardless of whether the victim is injured or not. There is no statute of limitations on damage in either situation.
[1]Kidnap and False Imprisonment: Walker Lahive – https://www.walker-lahive.co.uk/criminal-law/serious-offences/kidnap-false-imprisonment/
[2]Section 361 in The Indian Penal Code
[3] MANU/OR/0306/1994
[4](1875) LR 2
[5]MANU/OR/0306/1994
[6]MANU/SC/0179/1998
[7]MANU/SC/0081/1964
[8]MANU/SC/0262/1972
[9]MANU/SC/0081/1964
[10]MANU/LA/0454/1922
[11]MANU/SC/0131/1972
This article has been written by Ashutosh, 2nd Year B.B.A LL.B student at Bennett University.
