Kidnapping is the taking away of a person by force, threat, or deceit, with intent to cause him or her

to be detained against his or her will. Kidnapping may be done for ransom or for political or other
purposes. Abduction is the criminal act of taking away a person by persuasion, fraud or by open
force or violence.

Legislations:

India has substantial legislations dealing with kidnapping and abduction like The Indian Penal Code
(Section 359 to Section-377), Immoral Traffic (Prevention) Act, 1956 and Bombay Prevention of
Begging Act, 1959.

Some of the most important laws to note are:

Section 359 IPC: Kidnapping; Kidnapping is of two kinds: kidnapping from 1 [India], and kidnapping
from lawful guardianship.

Section 360 IPC: Kidnapping from India; Whoever conveys any person beyond the limits of 1*[India]
without the consent of that person, or of some person legally authorized to consent on behalf of
that person, is said to kidnap that person from India.

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.

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.

Application of the Law:

Kidnapping from guardianship is a substantive offence under the Code; but abduction is an auxiliary
offence, not punishable by itself, but made criminal only when it is done with one or other of the
intents specified in Section 364 of the Indian Penal Code.

Force in Section 362 of the IPC means actual force and not merely a show or threat of force.
Deceitful means signifies anything intended to mislead another. It includes inducement and its scope
is very wide. The intention of the accused, one may say, is a gravamen of the charge. The case of
Rabinarayan Das is a pointer in this regard. Here the prosecution was blind. She wanted to go to her
school. However, the petitioner took her to secretariat premises. Evidence of inducement is not
forthcoming and yet there was nothing to prove that the woman had gone there out of her volition
or free will. In another case the two accused and the third person were seen disappearing together.
They had drinks and moved away. The one who did not return home, his moustache, torn kurta and
a few drops of blood were found by the side of a swollen river. Whether he was pushed, or he
slipped could not be known. His companions were not convicted under this section. Where the
accused persons, on false pretext of repaying the money to the deceased, induced him to
accompany them to a distant place and after killing him, threw the body in a private ravine, their
conviction under s. 364 along with sections 300 and 201 was upheld. In Sucha Singh v. State of
Punjab, during the period of insurgency, two young Sikh boys were abducted by armed assailants
from their house on a dark night in the sight of their parents. They were killed within a short while
by the abductors. The abductors were charged with murder. It was held that when more persons
than one have abducted the victim, who was later murdered, is within the legal province of the court
to justifiably draw a presumption depending on the factual situation that all the abductors are
responsible for murder. Section 34 of the Penal code could be invoked for the aid to meet the ends
of justice. An abducted victim was murdered later on. It was held that the court can, depending on
the factual situation, draw the presumption that the abductors are responsible for the murder. It is
their responsibility to explain to the court what they had done with the victim.

However, there is also a unique ‘effect’ of being taken hostage, the ‘Stockholm Syndrome’ which is
regarded as a means of coping and surviving since it certainly enables, on many occasions, hostages
to deal with extreme and life-threatening circumstances. The term was first coined by criminologist,
Nils Bejerot, to describe the unexpected reactions of hostages both during and after an armed bank
raid in Sweden in 1973. It was noted that, despite being subject to a life-threatening situation by the
raiders, the hostages (three women and one man) forged positive relationships with their captors
even to the point of helping to finance their defence after their being apprehended. Conversely, the
hostage-takers began to bond with their captives. This paradoxical reaction has been noted in many
other incidents. The 10-year-old girl, Natascha Kampusch, who was held captive for eight years
bonded with her abductor to such an extent that, on his suicide immediately after her escape, she
blamed the police for his death and clearly grieved his death. It is not clear why some individuals
react in this fashion while others do not. Some merely seek to

ESSENTIALS:

To constitute the offence of kidnapping under Sec.361, the following ingredients are to be satisfied :

1. Enticing or taking away of a minor male below 16 years or female below 18 years or a person of
unsound mind.

2. Taking away or enticing must be from the lawful guardianship.

3. Without the consent of the lawful guardian.

PUNISHMENT FOR KIDNAPPING (Sec.363):

Section 363 prescribes punishment for kidnapping. Whoever kidnaps any person from India or from
lawful guardianship shall be punished with imprisonment up to 7 years and also liable for line

Section 362 of IPC

Abduction is a continuing offence whereas kidnapping is not so.

Abduction simply means carrying away a person by force or fraud. Section 362 of IPC states,
whoever by force compels, or by a deceitful means induces any person to go from any place, is said
to abduct that person.

The Ingredients of Abduction:

Forceful compulsion or inducement by deceitful means:

The object of such compulsion or inducement must be the going of person from any place.

Illustration:

A forcibly carries B away from home in order to murder B. Here the offence of abduction has been
committed.

In Arusami Goundan’s case, it was held if a minor girl voluntary goes out of her guardian’s protection
and meets a person, no offence is committed and person won’t be guilty of abduction.

Act of abduction along with certain intention to commit another offence becomes punishable
offence:

If intention is that abducted person may be murdered, Section 364, applies;

If intention is wrongfully confine person, Section 365 applies;

If abducted person is a woman and intention is that she may be forced to marry against her will or
have illicit sexual intercourse then Section 366 applies;

If intention is to cause grievous hurt then Section 367 applies;

If the abducted person is a child under age of ten years and intention is take dishonestly any
movable’ property from its person then Section 369 applies.

There has to be element of force or deceit practiced on the abducted person. The word ‘deceit’
includes use of misrepresentation and fraud by act or conduct. Deceitful means include misreading
statements.

In R.V. Cort it was held that consent by fraud does not exempt a person of a charge of kidnapping (in
U.K. kidnapping is for both minors & adults). The defendant frequently stopped his car at bus stops
and falsely alleged to the passengers waiting, that the bus had broken down and offered women to
give lift. Twice they accepted. One woman changed her mind and he let her out. The defendant took
the plea that the woman had freely got in the car and were freely let out with their consent. The
court held that the taking away was by consent obtained by fraud. Therefore, in the instant case, it
was considered that the victim had not consented to be taken away since the consent was obtained
by fraud.

In Ganga Devi’s case (1914) 12 ALJ R 91, it was held that a girl is being abducted not only when she is
taken from any public place but also when she is removed from one place to another.

In Bahadur AIi Vs. Emperor AIR 1923 Lah 158, a kidnapped girl managed to escape from the
kidnappers when she met the accused, who misrepresented to her that he was a police constable
and would take her to the police station. But instead, he took her to his house, kept her there,
demanded and took a ransom of Rs. 600 from her mother, before he handed her back. It was held
the act amounted to abduction. The second time girl was abducted as she was not taken out of
custody of lawful guardian.

Section 361 of Indian Penal Code:

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 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.

Ingredients:

They must be taking or enticing of minor or a person of unsound mind.

Such minor must be under 16 years of age, if male, under 18 years of age if a female.

Taking/ enticing must be out of keeping of lawful guardian of such minor or person of unsound mind.

Taking or enticing must be without consent of such guardian.

(a) The word talking merely means to get into possession. There may or may not be use of force. The
mental attitude of minor is irrelevant in course of taking.

In Khalandar Sahib (in re) 1955 Cr LJ 581, the accused took away the minor whether she was willing
or not, the act of taking was complete and it amounted to taking out of father’s custody within the
meaning of this section.

In Sayyad Abdul Satar Vs. Emperor, AIR 1928 Mad 588, it was observed that if a minor laves her
parental home completely un-influenced by any promise, offer or inducement from guilty part, then
the latter cannot be considered to have committed the offence as defined under Sec, 361, IPC.

Lawful Guardian – The word lawful is different from word legal guardian. A legal guardian is a
guardian appointed by law. A legal guardian is necessarily a lawful guardian e.g. A teacher is a lawful
guardian or if parents leave child with a care taker for some time then then the care taker is a lawful
guardian. Thus lawful guardian would include a natural guardian, a testamentary guardian appointed
by the court and a person lawfully entrusted with the case and custody of a minor. In this section
guardian is described as a lawful guardian and not as a legal guardian.

A lawful guardian cannot include a person who obtains the care and custody of minor by illegal or
unlawful means. In State of Maharashtra Vs. Kisan Singh AIR 1954, Bom. 339, it was held that if
minor or lunatic is taken out of custody of the legal guardian, it would amount to kidnapping.

(c) Out of keeping of lawful guardianship – if the minor is not in the custody of lawful guardian the
section is not attracted. If a minor abandons the house of his guardian on his even accord and has no
intention of returning he cannot be said to be in keeping of his lawful guardian.

~~~~~~

Although both the offences are similar in some aspects but they are poles apart in many other
aspects.
Basis of Difference

Kidnapping

Abduction

Provision under IPC

The offence of kidnapping is defined u/s 359-361 of IPC

The offence of abduction is defined u/s 362 of IPC

Age (Minor or Major)

It is committed only in respect of a minor i.e. in case of boy 16 years and in case of a girl 18 years, or
a person of unsound mind.

It is committed in respect of any person of any age. There is no bar to any specific age of person.

Guardianship

The person kidnapped is removed from the lawful guardianship. A child without a guardianship can’t
be kidnapped.

Guardianship is immaterial to determine the offence of abduction. It has reference exclusively to the
person abducted.

Means Used/ Employed

In kidnapping, the minor is simply taken away. The means used to kidnap a child may be innocent.
The means employed in abduction are force, compulsion or deceitful methods.

Consent

Consent of the person enticed is immaterial

Consent of the person matters i.e. if a person is removed with free consent in that case offence of
abduction is said be not committed.

Intention

(Strict Liability)

In Kidnapping the intent of a person is immaterial i.e. he would be liable in all the circumstances
irrespective of the valid motive and good intention.

Intention is very important to determine the offence. Hence, a person would be liable only if there is
ill intention behind the act.

Completion of offence

It is not a continuing offence. The offence is completed as soon as the minor is removed from the
custody of his or her/his guardian

It is a continuing offence. The offence is in continuation as the place of the abducted person changes
from one to another.

Kind of offence

Kidnapping from guardianship is a substantive offence, punishable u/s 363, IPC.

Abduction is an auxiliary act, not punishable by itself, unless accompanied with some intent specified
u/s 364-366. Hence, a particular purpose is necessary to punish an accused.