Law and You > Criminal Laws > Indian Penal Code > Kidnapping and Abduction (Ss. 359 to 369 IPC)
Kidnapping and abduction are two terms often used interchangeably to describe the act of taking someone against their will. Kidnapping and Abduction are important offences against the human body and have been covered specifically from section 359 to 374 of the Indian Penal Code. An analysis of these sections along with relevant case studies has been covered in this module.
Kidnapping:
Kidnapping refers to the act of unlawfully seizing and detaining an individual against their will, often with the intent to demand a ransom or exert control over the victim for various reasons. It typically involves the use of force, threat, or deception to capture the victim. Kidnapping is a criminal offence in most jurisdictions and is universally condemned due to its grave impact on the victim’s physical and psychological well-being. Kidnapping is defined as taking or enticing away a person against their will. The act can be done with the intention of demanding a ransom or for any other unlawful purpose. The term “taking away” means that the person is moved from one place to another without their consent, while “enticing away” means that the person is induced to move from one place to another by deceitful means.
Types of Kidnapping:
Section 359 IPC:
Kidnapping:
Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
The aforementioned types of kidnapping are provided under Sections 360 and 361 of the IPC. There may be cases in which the two kinds overlap each other. For instance, a Minor may be kidnapped from India as well as lawful guardianship.
Section 360 IPC:
Kidnapping from India:
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.
Section 360 explains about the kidnapping from India which means when a person takes another person away from his hometown i.e. takes him/her to another place beyond the territorial limits of India is known as Kidnapping from India.
Illustration:
‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.
Ingredients of Section 360:
- to convey an individual beyond the limits of India whereas the offence under this section does not apply until the person reaches not only a foreign territory but also his destination.
- to take such an individual or person without his own or any legally authorized person’s (on behalf of the person) consent.
Provided that the offence is not restricted to persons of unsound minds or minors but can be perpetrated against any male or female, major or minor, irrespective of their age and nationality.
Section 361 IPC:
Kidnapping from Lawful Guardianship:
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 such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation:
The words “lawful guardian” in this section include any person lawfully entrusted with the care or 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Section 361 intends to protect the interests of minors and at the same time, shields the custody rights of their lawful guardians Section 361 penalises kidnapping of minors or of persons of unsound mind: in case of males, the offence is committed if a minor below sixteen years of age is ‘taken’ or ‘enticed’ and in case of females, the offence is accomplished if the same act is committed against a minor below eighteen years of age. There is no age barrier for persons of unsound mind under the section.
Ingredients of Section 361:
- Taking or enticing of a minor or a person of unsound mind by a person
- The minor must be taken or enticed out of the keeping of lawful guardian
- The guardian’s consent must be absent.
Another important factor under section 361 is the fact that the person ‘taken’ or ‘enticed’ should be out of the keeping of lawful guardian.
In Thakorlal D. Vadgama v. State of Gujarat, AIR 1973 SC 2313 case, the Court opined that ‘taking’ varies from ‘enticing’ in a very significant way. While the element of force may not be present in either taking or enticing, the element of ‘temptation’ is present in the latter although it is absent in the former.
In Biswanath Mallick v. State Of Orissa, 1995 CRILJ 1416 case, the Orissa High Court said the essential ingredients of the Section 361 are four in number, i.e.,
(i) taking or enticing away a minor or a person of unsound mind;
(ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;
(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind;
(iv) such taking or enticing must be without the consent of such guardian.
If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive.
The Court further held that the taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words ‘lawful guardian’ in the said section include any person lawfully entrusted with the care or custody of such minor or other person.
In State Of Haryana v. Raja Ram, AIR 1973 SC 819 case the court held that the object of S. 361, I.P.C., is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in the section, out of the keeping of the lawful guardian without the consent of such guardian. The use of the word ‘keeping’ connotes the idea of charge, protection, maintenance and control; further, the guardian’s charge and control are compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. The consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian’s consent that would take a case out of the purview of the section. It is not necessary that the taking or enticing must be- shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
In Biswanath Mallick v. State Of Orissa, 1995 CRILJ 1416 case, The Court observed that the word ‘take’ means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person. The word ‘entice’ involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperceptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word ‘entice’ involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do.
In r v. Prince, L.R. 2 Cr. Cas. Res. 154 (1875) case, where the defendant was convicted for taking a 14-year-old unmarried girl out of the possession and without the consent of her parents. At trial, the jury found that although the girl was 14 at the time, she had told Defendant and he had reasonably believed that she was 18. The statute he was convicted under was silent as to the mental state required to make the act a crime. Defendant appeals. The issue was whether the court is required read a mens rea requirement into a statute that is silent with regard to the mental state required to make the act a crime? The Court held that a mistake of fact does not stand as a defence to a crime where the statute making the act a crime contains no requirement of knowledge of that fact to begin with. In this case the forbidden act was wrong in itself and the legislature has enacted that if anyone does this act, he does so at his own risk. Thus, this case introduces the mistake of fact defense in the context of a criminal act for which the statutory language making the act a crime has no requirement of mens rea
Section 362 IPC:
Abduction:
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Ingredients of Section 362:
- Compelling an individual by force or inducing by deceitful means and
- thereby causing such person to go from any place.
In general, abduction refers to the act of taking someone away by force or deception, but it may not necessarily involve the intention to harm or exploit the individual. For Example: A divorced couple has joint custody of their child, and there exists a court-issued order that outlines the visitation rights of the non-custodial parent. If the non-custodial parent takes the child and retains custody without the custodial parent’s consent or in defiance of the court order, it may be classified as abduction according to legal standards.
The offence of abduction is committed as many times as the person is moved from one place to another. For Example: A is taken from her house and then sent to city X, from where she is moved to city Y. In this case, abduction is committed twice, once, when she was moved from her house to city X and then again when she was moved from city X to city Y.
The term ‘by force’ suggests that there should be actual use of force and not a mere show/threat of force.
In State of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988 case where the victim, was doing small business in Calcutta. The accused, wanted him to pay the protection money for allowing him to do his business without any hindrance or obstructions. But the victim did not agree to their demands which led to a fight. After few days the accused went to victim’s house and threatened to hurt him. The victim took asylum at his friend’s house for the night. The accused went to victim’s friend’s house and forcibly took the victim to the Rickshaw, but the victim escaped and went to a neighbour’s house where he took asylum. The accused reached there and dragged victim out and beaten by a lathi and taken away. The neighbour lodged a police complaint that very night. The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.
The term ‘deceitful’ suggests means and methods by which a person is misled or led to believe in something false. According to Section 362, the other way abduction can take place is by inducing someone to go from someplace by misleading him/her to do something he/she would not normally do. The scope of inducement here is very wide. For Example: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offence of abduction.
Abduction itself is not an offence. Abduction is an offence if it is done with the intention to commit murder, wrongfully confine a person, induce a woman to compel her marriage, subject a person to grievous hurt, slavery, etc., steal from a person below 10 years.
Distinguishing Between Kidnapping and Abduction:
| Kidnapping | Abduction |
| Kidnapping is defined under Sections 359-361 of the Indian Penal Code. | Abduction is defined under Section 362 of the Indian Penal Code. |
| The offence of kidnapping is committed against a minor that is 16 years in the case of males and 18 years in the case of females. | There is no provision for age in the case of abduction, any person can compel any other person by force and deceitful means to move from one place to another. |
| In the case of kidnapping, the person kidnapped is removed from his/her lawful guardianship. | In order to determine the offence of abduction, lawful guardianship is immaterial. |
| A person or minor is simply taken away therefore means used to kidnap is not appropriate. | Force, fraud, or deceit are the means employed in abduction. |
| The consent of the lawful guardianship matters whereas the consent of the person kidnapped is not necessary. | The consent of a person plays an important role in abduction. Abduction is said not to be committed if there is a presence of free and voluntary consent of the abducted person. |
| The intention of a person to commit the offence, of kidnapping, is immaterial. | The intention is not immaterial in the case of abduction, which means a person is liable to have committed abduction only if there is ill intention behind the same. |
| Kidnapping is a more serious offence. | Abduction is less severe as compared to kidnapping. |
| Not a continuing offence. As soon as the person or minor is separated from his/her lawful guardianship, the offence is completed. | A continuing offence as the place of the abducted person changes from one place to the other. |
| Punishment for kidnapping is mentioned under Section 363 of the IPC which is imprisonment extending to 7 years and a fine. | It is not punishable unless done with the intention to commit an offence mentioned under Section 364 to 369 of the IPC. |
Difference between Kidnapping and Hostage:
| Kidnapping | Hostage |
| Kidnapping is the act of unlawfully abducting or capturing a person against their will. | A hostage refers to a person who is seized or detained by a group or individual, often as a means of leverage or coercion to achieve certain demands. |
| Kidnapping may not necessarily have a specific demand and could be driven by various motives, including ransom, harm, or control. | hostage situations often involve a demand or negotiation |
| Punishment for kidnapping is mentioned under Section 363 of the IPC which is imprisonment extending to 7 years and a fine. | Hostage is a punishable offence under Section 368 of the IPC that deals with ‘Wrongfully concealing or keeping in confinement, kidnapped or abducted person’. |
Section 363 IPC:
Punishment for Kidnapping:
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.
This section must be read with Section 361. The offence of kidnapping from lawful Guardianship penalised by this section is the offence which is defined by section 361.
Punishment:
Imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Classification of Offence:
Offence under this Section is cognizable, bailable, non-compoundable and triable by Magistrate of First Class.
In Chadrakala Menon v. Vipin Menon, AIRONLINE 1993 SC 535 case, the appellant was married to the respondent. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between the appellant and the respondent and they decided to get separated. While respondent filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, respondent took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that respondent was the natural guardian of the child
Aggravated Forms of Kidnapping and Abduction:
Section 363 A: Kidnapping or Maiming a Minor for Purposes of Begging:
The offence of kidnapping any minor for the purpose of begging is punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. On the other hand, the offence of maiming any minor for the purpose of begging is punished with imprisonment for life, and shall also be liable to fine.
Section 364: Kidnapping or Abduction in Order to Murder:
The offence of kidnapping or abduction in order to murder is punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 364A: Kidnapping for Ransom, etc.:
The offence of kidnapping for ransom is punishable with death, or imprisonment for life, and shall also be liable to fine.
Section 365: Kidnapping or Abducting with Intent Secretly and Wrongfully to Confine Person:
The offence of kidnapping or abducting with intent secretly and wrongfully to confine person is punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 366: Kidnapping, Abducting or Inducing Woman to Compel Her Marriage, etc.:
The offence of kidnapping, abducting or inducing woman to compel her marriage, etc., is punishable with imprisonment which may extend to 10 years and a fine.
Section 366A: Procuration of Minor Girl:
The offence of procuration of minor girl, is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 366B: Importation of Girl from Foreign Country:
The offence of importation of girl from foreign country, is punishable with imprisonment extending to 10 years and a fine.
Section 367: Kidnapping or Abducting in Order to Subject a Person to Grievous Hurt, Slavery, etc.:
The offence of kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc., is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 368: Wrongfully Concealing or Keeping In Confinement, Kidnapped or Abducted Person:
The offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person, is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 369: Kidnapping or Abducting Child under Ten Years with Intent to Steal from its Person:
The offence of kidnapping or abducting child under ten years with intent to steal from its person, is punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sections 370 to 374 penalise buying or disposing of any person as slave, habitual dealing in slaves and unlawful compulsory labour. Likewise, sections 372 and 373 penalise selling and buying of minors for the purpose of prostitution. The content of sections 370 to 374 has also been reflected in anti-trafficking laws of India. The Immoral Traffic (Prevention) Act, 1956 makes a provision for stringent punishment if kidnapping of a minor or child takes place for the purpose of prostitution. Under section 13, the Act also makes provision for a special Police Officer and advisory body to deal with offences related to immoral trafficking.
Defences for Kidnapping and Abduction
The defences can include:
- Consent: If the person kidnapped or abducted gave their consent, it may be a defence. However, the consent must be free and voluntary.
- Necessity: If the accused committed the offense in order to prevent a greater harm or danger, it may be a defence.
- Lawful Authority: If the accused had the lawful authority to take the person away, such as a police officer making an arrest, it may be a defence.
Conclusion:
Kidnapping involves the unlawful and intentional taking away another person against their will. This can involve using force, deception, or coercion to transport or detain the victim. Kidnapping often involves holding the victim for ransom, for extortion, or for other criminal purposes. Abduction typically refers to the act of taking someone away by force or deception, often with the intent to prevent their freedom of movement. Both kidnapping and abduction are serious crimes with severe legal consequences. They violate the victim’s freedom, safety, and human rights. Penalties for these crimes vary depending on the circumstances, but they often include imprisonment and fines.