In Indian penal code, many offences are there which affect the human body, one of the offences is kidnapping & Abduction, these offences are codified in Indian Penal code under section 359-362. However, these two offences are closely interrelated but have the difference and discreet ingredients.Kidnapping literally means ‘child stealing’. For the understanding of laymen, it is defined as compelling/taking or enticing someone from the lawful custody from his/her guardian is said to commit the offence of kidnapping.Section 359 of IPC, provides that, Kidnapping is of two kinds; (i) Kidnapping From India and (ii) Kidnapping from Lawful Guardianship[1].But sometimes in certain cases, two forms of kidnapping overlap each other like a minor kidnapped from India may well at the same time be kidnapped from his lawful guardianship.
Table of Contents
Kidnapping from India
Section 360 of IPC, provides that whoever convey 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 victim against whom this offence is persuaded can be a male or a female, major or a minor. If the person kidnapped, who is above 12 years of age and have given consent for the same beyond the limits of India, no offence is committed but now the age limit for boys is sixteen and for girls is eighteen under the Act of XLII of 1949[2].
Ingredients
(i) conveying of any person beyond the limits of India
(ii) such conveying must be without the consent of that person. In case if the person has attained the age of majority and given his consent to his being conveyed no offence committed.
Kidnapping from Lawful Guardianship
Section 361 of IPC provides that, whoever takes 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.
The word ‘lawful guardian’ includes any person lawfully entrusted the custody or care of such minor or other people. Nevertheless, this section does not extend to those activities where 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.
This provision incorporated under India penal code for the protection of minors and the person of unsound mind themselves then for the right of guardian of such person. In case State v. Harbans Singh Kishan Singh[3], held that the mischief intended to be punished may partly consist, in the violation and infringement of the guardian’s right to keep their ward under their care and custody but for more important to afford protection and security to the wards themselves against seduction or abduction for an improper purpose.
Person of unsound mind or a minor
The unsoundness of mind must be because of natural reasons it should not be temporary insanity arises due to excess consumption of alcohol or such other reasons. Where the girl aged 20 years was made unconscious due to dhatura poisoning when she was taken away by the accused, it was held that the accused was not guilty of kidnapping, because the girl could not be said to be of unsound mind. Person kidnapped must be under the age of 16 years if a male and 18 years if a female. The knowledge of the accused that the girl found him of greater age is no defence, a person kidnapped below the statutory age is immaterial[4].
Ingredients
(i) taking or enticing ways a minor or a person of unsound mind
(ii) such minor shall be under the age of 16years if a male or under age of 18 years if a female
(iii) taking and enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind
(iv) taking and enticing must be without the consent of the guardian
Meaning of Takes or entices aways a minor
Takes means “causes to go, the reason for influence, to escort, to get in possession”.
In order to hold guilty, the prosecution has to establish that accused have taken some active part in the girls leaving her guardian’s custody and taking shelter with him[5].
Taking does not necessarily consist of force, actual or constructive and it is immaterial whether a girl consents or not. However, taking the child from his guardian custody is a necessary ingredient.
The word ‘take’ implies a want of wish and absence of desire of the person taken. If the suggestion to go ways with the prisoner comes from the girl and the accused takes only passive part of yielding her suggestion, in that case, he is entitled to acquittal. Mere allowing minor to accompany a person may not ordinarily be taken by that person, in certain cases it may be deemed to be taking, nevertheless, the factors keep in mind while deciding whether taking has been there are the conduct of the parties, the maturity of the girl and intellect capacity to think for her and make up her own mind, circumstances under which the object for which she felt it necessary or worthwhile to leave her guardian protection.
The word enticing is inducing A minor to go of her own accord to the kidnapper. It involves an idea of an inducement by exciting hope or desire in the other. In case Sayyad Abdul Sathar v. Emperor[6] held that the word enticing means that while the person kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind that brought about the willingness must have been induced or brought in some way by the accused.
Another leading case of T.D Vadgama v. State of Gujrat[7], Supreme court elaborately commented on the meaning of the word ‘enticing’ that, the two words ‘take’ and “entice’ are used in section 361 of IPC are together so that each takes into some extent its colour and content from each other, if the minor leaves her parental house completely uninfluenced by any promise, offer and inducement emanating from the guilty party then latter can not be considered to have committed an offence under section 361 of IPC. but in the case where accused laid the foundation by inducement, allurement and threat this can be considered as an influential tool to change the mind of a minor, leaving her parental house and going with accused then prima facie it would difficult for accused to plead innocence on the ground that minor had voluntarily come with him.
When taking is complete
The offence is complete When the minor is actually taken from the lawful guardianship and the offence in not continuing one until the minor return to his guardian. Where ‘A’ kidnaps a girl ‘B’ and gives her to ‘C’ who accepts her not knowing that she had been kidnapped. A is guilty of kidnapping but C is not. Sometimes it’s difficult to determine the exact moment at which the taking is complete but generally, the keeping of the guardian would come to an end when the person of the minor had been transferred from the custody of the guardian or some person on his behalf into the custody of the stranger. However, the offence is not the continuing one so subsequent takers could not be amount to kidnappers because at the time of taking by them the minor had no more been in the lawful guardianship hence it would amount to detaining[8].
The offence does not depend upon the time so much during which the girl was away as upon the intention to remove her from the custody of her lawful guardian, there may be a case where the custody of the girl is gone even though the girl is still at home. For illustration, A induces a girl G to get married to him, which she did by going to church, after marriage she immediately returns to her home and lived there as before, it was held A is guilty as the girl’s marriage to him had put an end to the parent’s possession and that the time she was actually away was wholly immaterial, as being husband, had the power to take her away, her whole relationship to her father being altered by the marriage.
Lawful guardian
There is a difference between ‘lawful guardian’ and ‘legal guardian’. Sometimes a guardian may be lawful without being legal. Lawful Guardia is one to whom the care and custody of a child are ‘lawfully entrusted’, in short, the care and custody of a child have arisen in some lawful manner[9].
The word lawful does not mean, the person entrusted with care and custody of the child stands in the position of the person having legal duty and obligation to the minor. Where the father of a girl sends her to school with his servant or a friend, the servant or such friend is the lawful guardian without prejudice to the right of possession of the father of the child. Here the father is the legal guardian and servant or such friend is the lawful guardian.
Out of the keeping of lawful guardian
Keeping means within the protection or care of the guardian. A minor is said to be in the keeping of a guardian where he depends upon him for basic necessities, maintenance, support or sustenance. Not necessary that the person is under physical possession of the guardian, it would be sufficient if he is under continuous control. If a minor go outside or on the playground himself, or visit on a market funfair either with or without the knowledge of his guardian, he’s still under the lawful guardianship
Minor no longer in the keeping of lawful guardianship if she was driven away from her parental roof or she voluntarily abandoned her parental home & control of guardian on account of ill-treatment.
There can be no kidnapping of a minor, who has no guardian. Therefore an orphan can not be kidnapped because he has no guardian.
Abduction
Section 362 of IPC, defines abduction, whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.
Abduction under this section is not a substantive offence but an auxiliary or we can say helping hand, which is not punishable by itself but made criminal only when it did with one or other of the intentions.
Ingredients
(i) forcible compulsion or inducement by deceitful means
(ii) the object of such inducement or such compulsion must be the going of the person from any place.
In the case of abduction, a person is compelled either by force or is induced by a deceitful manner to move from one place to another[10]. Actual use of force is necessary, the mere threat is not sufficient to constitute abduction. Hence either force or fraud practises upon the person who abducted. For inducement, there must be some active part suggestion given from the accused which changed the mind of the person abducted to move someplace, where he will not think of it going prior to suggestion. Change in mind mush has caused due to external pressure.
Continuing offence
Abduction is a continuing offence and a person is liable not only when a person is first moved from one place to another but subsequently all the person is liable who involved in moving the person to other places.
In the case of chundu Murmu V. State of West Bengal[11], there was a frequent quarrel between husband and wife, and the fact that the deceased wife had left the house was not disputed. Accused had brought back the deceased on the day where she went missing was also not disputed. Accused was taken into custody and the dead body was recovered when fact disclosure made by the accused. It held the act of bringing back a wife, with whom relation was estranged, to a matrimonial home does not attract the necessary ingredient of either offence of kidnapping and abduction.
Distinction Between Kidnapping and abduction
In Kidnapping the offence is committed only in respect of a minor, who is under the age of 16 years if a male and 18 years if a female or a person of unsound mind But in case of abduction, the offence is committed in respect of a person of any age.
Simple taking and enticing away of a minor or a person of unsound mind constitute the offence of kidnapping. Kidnapping may even be innocent Whereas in abduction, means used are material, therefore force, compulsion, deceitful manner must have been used.
In the kidnapping, person kidnapped is removed out from lawful guardianship, therefore a child without a guardian can not be kidnapped But in the case of abduction, the person kidnapped need not be in keeping of anybody.In the kidnapping, the consent of the person is immaterial because they are not competent to signify their assent In the case of abduction, a person who is removed consent is important if freely and voluntarily given it condones.
The offence of Kidnapping is not a continuing offence, because it completes, the moment the person is deprived of his lawful guardianship but Abduction is a continuing offence, and it continues so long as a person is moved from one place to another. It is a substantive offence Merely an auxiliary act.
Recent case
In the case of Vikram Singh v. Union of India[12], the appellant had kidnapped a 16years old boy and asked for rs. 50 lacs in ransom. They had then killed the boy. The appellant filed a case in the supreme court to declare section 364-A as ultra vires, in respect of the death sentence given if anyone found guilty. He also said that section 364-A was added only to deal with terrorist-related ransom since kidnapping and abduction already have been dealt with other provisions interested in Indian Penal Code. hence pleaded to quash the death sentence given to him.
Court observation
The court held that section 364-A is very wide. There is nothing which suggests that this section is limited to offence against a foreign state or international government organisation and covers all “ any other person”
Court also emphasis upon various Indian and foreign judgment to highlight the importance of proportionality punishment. It was held that the job of giving punishment was based on the legislature, and the court can only intervene if the court feels that the punishment was inappropriate.
Conclusion
kidnapping and abduction are risky acts which hurt the opportunity of an individual. Section 359 to 369 go far in making sure about the freedom of individuals. They offer security to kids against kidnapping and abduction. In addition, they strengthen the privileges of watchmen to have authority over the kids who are effortlessly moved and persuaded by the expressions of planning grown-ups. The quantity of kidnapping and abduction cases is gigantic and is just expanding. There is a critical need to forestall these appalling wrongdoings and stop the way of life of seizing and kidnapping from spreading, particularly when it is accomplished for relationships, constrained sexual intercourses and constrained began and so forth.
To defeat these offences, not exclusively do the states need to cooperate yet in addition a co-task among countries should be developed. Also, it should have been comprehended that a criminal would circumvent the laws, and enjoy these demonstrations. What is required to forestall these offences is inseparably working of non-administrative associations and government bodies, and more sensitisation.
References
1.https://indiankanoon.org/doc/1804691/
2. SN Mishra, Indian Penal Code, central law publication, 12th EDT, p. 706
3.AIR 1954 BOM. 339
4.R v. Prince (1875) LR 2CCR 154
5. Chhaju Ram V. state of Punjab AIR 1968 Punj. 439
6.AIR 1928 Mad. 585
7.AIR 1973 S.C 2313
8. Nemai chattoraj, (1900) 27 Cal. 1041
9. Nathusingh AIR 1942 Nag. 34
10.Ram bharosey, (1956) A.L.J 849
11. 2012, 13 Cri, L.J 2681
12. AIR 2015, SCC 456
BY- Akash Goswami
Aligarh Muslim University