What Is Kidnapping and Abduction Under IPC

Kidnapping and abduction are offences under chapter XVI of the Indian Penal Code. Sections 359 to 369 of the IPC deal with kidnapping and abduction.

The word ‘kidnapping’ literally means child stealing. Kidnapping has not been defined in the Indian Penal Code.

Section 359 of the Indian Penal Code describes two kinds of kidnapping:
1. Kidnapping from India
2. Kidnapping from lawful guardianship

Section 360 – Kidnapping from India
Section 361 – Kidnapping From Lawful Guardianship
Abduction
Difference Between Kidnapping and Abduction

Section 360 – Kidnapping from India

For an offence under section 360 of the Indian Penal Code, the victim may be male or female, major or minor.

The essential elements of section 360 of the IPC are as follows:

Conveying of any person beyond the limits of India.
Such conveying must be without the consent of that person.

The word ‘conveying’ has not been defined in the code. Ordinally, it suggests carrying away or getting carried away.

Section 361 – Kidnapping From Lawful Guardianship

Section 361 of the Indian Penal Code explains kidnapping from lawful guardianship.

The essential elements of section 361 of the IPC are as follows:

Taking or enticing away a minor or a person of unsound mind.
Such minor must be under 16 years if male and under 18 years if female.
Such taking or enticing away must have been out of the keeping of lawful guardian.
Such taking or enticing away must have been without the consent of the lawful guardian.

The word ‘lawful guardian’ has been used in a wider sense. This can be seen from the explanation provided for section 361 of the India Penal Code. The explanation provides that lawful guardianship includes any person who is entrusted with the care or custody of the minor or another person.

Exceptions to Section 361 IPC

There are certain exceptions to section 361 of the Indian Penal Code. The section does not extend to the following persons:

A person who in good faith believes himself to be the father of the illegitimate child.
A person who in good faith believes himself to be entitled to the lawful custody of such a child.

Such a person may be held liable for kidnapping from lawful guardianship if their act is unlawful and for an immoral purpose.

Taking or Enticing

‘Taking’ means to carry along. ‘Enticing’ means to lure. Both taking as well as enticing suggest inducement or external influence or an active role of the accused.

In Varadarajan vs State of Madras (1965), a minor girl left the protection of her father, completely aware of what she was doing to join the accused. The Supreme Court observed that there is a difference between taking and allowing a minor to accompany a person. In this case, the accused was not held liable to take the minor girl from lawful guardianship.

The offence under section 361 of the Indian Penal Code is completed when the minor is taken from lawful guardianship. The offence is not a continuing offence.

In Rekha Rai vs Emperor (1927), B enticed a minor girl G, to come out of the terrace to the road and then to the motor car in which K was sitting so that K may drive with her. It was held that the offence of kidnapping was complete when he drove away with her.

Abduction

Section 362 of the Indian Penal Code defines abduction. It is to be noted that abduction by itself is no offence. Abduction is punishable only if it is committed with some criminal intention which is given under sections 364 to 368 of the Indian Penal Code, which may be punishable.

Essentials of Abduction

Following are the ingredients of abduction:

Forceful compulsion or inducement by deceitful means.
Compulsion or inducement to move the person from one place to another.

In one of the cases (most likely, Fathaya 1942, Lahore), it was held that if a woman is carried away by force against her own will, it would be abduction even though she is carried with the object of restoring her to her husband.

Difference Between Kidnapping and Abduction

Kidnapping and abduction differ in the following ways:

Kidnapping is committed only in respect of a minor where the age of a male is 16 years, and that of a female is 18 years or a person of unsound mind, whereas abduction may be committed in respect of any age.
In kidnapping, the person is removed from the lawful guardianship, whereas the person abducted need not be in keeping of anyone.
In kidnapping, consent is immaterial, but if the abducted person consents to move, no offence is committed.
Kidnapping is not a continuing offence, but abduction is a continuing offence.
The intention of the person kidnapping is immaterial, whereas intention in abduction is very significant.