Kidnapping means forcing, threatening, or deceiving a person for taking him away against his or her wish. It implies forcefully moving a person from one place to another either by threat or trick against his will. Indian Penal Code, (I.P.C.) 1860, contains detailed provisions regarding kidnapping, its types, punishment for it, and further aggravated forms of kidnapping.
TYPES OF KIDNAPPING:
Section 359 of I.P.C. classifies kidnapping into two types that are kidnapping a person from India and kidnapping a minor from his lawful guardian.
KIDNAPPING FROM INDIA:
Section 360 of I.P.C. deals with kidnapping a person from India. It states that when someone takes or coveys any person beyond the limits or out of India without taking his consent or without taking permission from the person who has the authority to consent on that person’s behalf has committed the offence of kidnapping from India.
Some important terms defining kidnapping from India are-
Convey– Here, convey implies taking away or carrying a person.
Any person– Here, any person means that kidnapping from India can be committed on any person, whether male or female or of any age, or sound or unsound mind or any foreigner or Indian citizen.
Beyond the limits of India- This means taking any kidnapped person out of India. Thus, the term limits of India means crossing the border of India. There is no need for the kidnapper to take the kidnapped person to the place intended by the kidnapper. This offence is said to have been committed once the kidnapped person is been taken out of India.
Without consent– Here, the kidnapped person is taken out of India without his will or without taking consent from the authorized person on his behalf. When consent is obtained by the kidnapper by threatening, forcing, or by creating a fear of injury in the mind of the kidnapped person such consent is not accepted under law. Further, any consent given by the kidnapped person under the influence of intoxication, unsoundness of mind, or given by a person below the age of 12 years is not considered consent in the eyes of law.
Thus, kidnapping from India can be done on a person of any age, not necessarily a minor. Further, if the person consents or is voluntarily going out of India with the other person then he cannot be said to have been kidnapped by that other person.
Three points to be proved by the prosecution in case of kidnapping from India-
- When this offence was committed the kidnapped person was in India. Thus, kidnapping took place in India.
- The kidnapper took the kidnapped person out of India.
- The accused kidnapper did not take consent of the kidnapped person or the person authorized to consent on behalf of the kidnapped person. Thus, kidnapping took place against the wish of the victim.
KIDNAPPING FROM LAWFUL GUARDIAN-
Section 361 of I.P.C. states that any person taking away or enticing any minor male below 16 years or any minor female blow 8 years or an unsound mind person out of the keeping of his or her lawful guardian without taking consent from that guardian is said to have committed kidnapping from lawful guardianship.
Some important terms defining kidnapping from the lawful guardian-
Takes and entices– Here, to take means kidnapper causing the victim to go from a place, to escort the victim, to receive the victim, or to take the victim into possession. A kidnapper can incite a minor by tempting him by showing him chocolate, toy, etc.
Any minor– Here the accused kidnapper cannot defend himself by pleading that the victim appeared to be major or the girl overstated or lied her age to him.
Out of keeping of lawful guardian- Here, keeping does not necessarily mean physical possession or custody of the guardian. Keeping includes maintaining, controlling, and protecting the minor.
Lawful guardian- Here, lawful guardian includes legal guardian, testamentary guardian, natural guardian, a guardian appointed by Court, any person who is entrusted by law the responsibility, care, protection, and custody of the minor.
Without the consent of the guardian– If consent is obtained by the kidnapper from the guardian after kidnapping then such consent is not considered legal consent and is therefore not accepted by the Court.
Four points to be proved by the prosecution for this offence-
- The kidnapped person was a minor as mentioned or was insane. The accused kidnapper cannot plead that he was not knowing that the kidnapper minor was underage or believed that the minor had no guardian.
- The kidnapped person was under the care of a legal guardian. Thus, if the kidnapped minor was not under the custody of a lawful guardian then this offence cannot be said to have been committed. Here, the guardian need not just mean parents but anybody who has the legal responsibility of the minor.
- The accused kidnapper either took or enticed the minor out of the keeping of the legal guardian. Thus, enticing means tempting, luring, or attracting a minor to move out of the custody of his or her guardian.
- The act of taking away is done without the permission or consent of the legal guardian. As the kidnapped person is a minor his or her giving consent to go with the kidnapper is immaterial. If the guardian allows or consents the minor to go with someone then it is not an offence. However, the consent of the guardian should not be obtained by force, threat, or fraud.
Section 363 states that any person kidnapping from India or lawful guardianship shall be punished with imprisonment extending up to 7 years and also has to pay the fine.
Section 362 of I.P.C. states that any person who forcefully compels or by deceitful ways induces any person to go from any place has committed the offence of abduction.
Two essential elements of Abduction are as follows-
The abductor uses forcible compulsion or inducement through deceitful ways.
The object behind using this force is to make a person to go from any place.
It is to be noted that mere abduction by itself is not an offence. Whoever abducts intending to commit an offence is penalized. Therefore, abduction with an intent to rob or murder the victim becomes an offence. Abduction constitutes an offence when it is committed with some aggravating circumstances.
Key terms constituting Abduction are as follows-
By force compels– Here, the actual use of force is needed to constitute abduction. Mere showing force or threatening to use force is not enough to constitute abduction. Thus, force must have been practiced on the person who is abducted. A person is forced to go from a place against his/her wish.
By deceitful means– Here, deceitful means or ways are fraudulent or misleading statements made by the abductor to cause the victim to go from one place to another.
DISTINCTION BETWEEN KIDNAPPING AND ABDUCTION:
|1.||Kidnapping from a lawful guardian is committed on a minor male below 16 years or a minor female below 18 years or an unsound person.||Abduction can be committed on any person of any age whether minor or major.|
|2.||The means used to take away the victim are not material. The minor is simply taken away.||Force, compulsive or deceitful means are used to abducting.|
|3,||The consent of the victim is not considered in Kidnapping.||If the victim voluntarily consents then it does not amount to abduction.|
|4.||The intention of the kidnapper is not relevant.||The intention of the abductor is relevant.|
|5.||The kidnapped victim must have a lawful guardian from whose custody the victim is removed.||Abduction can be committed even on the person who has no guardian.|
|6.||Kidnapping is substantive meaning kidnapping is an offence by itself. Mere kidnapping without any unlawful or illegal intention amounts to offence.||Abduction is not substantive meaning abduction is not an offence by itself.|
|7.||Kidnapping from lawful guardian cannot be abetted.||Abduction and Kidnapping from India can be abetted.|