What is Kidnapping and Abduction?

Dhruva Vig

The world, as well as the law that tries to govern it, is changing at a dizzying pace. The evidence of this change has been well documented in the hundreds of new entries of gazettes and publications that are printed in a circadian fashion.

This practice of collecting and publishing data has been a blessing for the masses, but it also lays bare the uglier facet of this ever-changing world.

Be it statistical data or crime reports, the very fact of such incidents occurring, that too on a global scale year by year, is still a shocking revelation for many. This might remind us of Joseph Stalin’s well-known quote, “One death is a tragedy; a million is a statistic.”

In India alone, crime rates have been on a steady rise ever since the beginning of this millennia. In a recent NCRB Report^[1] of 2019 published by the Government of India, as many as 10.5 lakh cases of offences affecting the human body were registered in 2019 alone.

These offences accounted for 32.6% of total IPC crimes in the Indian sub-continent. Cases relating to the offence of kidnapping and abduction across India were reported to have been 10% of the total figure. The cases registered under offences against the human body depict a marginal increase of 1% in 2019 over 2018, even though the crime rate (78.6) remained the same.

To put things in perspective, a total 1.05 lakh kidnapping & abduction were registered during the year 2019 itself. Crimes against women showcased a 7.3% increase from 3.78 lakh cases in 2018 to 4.05 lakh cases in 2019, where ‘kidnapping & abduction of women’ in particular accounted for 17.9% of the total figure.^[2]

An International Crisis

For deterring and preventing such crimes at a global level, the international comity has laid out several multilateral treaties and international statutes, where co-operation from its signatories has proven to be a major factor in tackling crimes relating to kidnapping and abduction.

One such treaty is the Hague Convention on the Civil Aspects of International Child Abduction, 1980. The sole purpose of this treaty is to establish a procedure for protecting children from the harmful effects of abduction and retention by a parent across international boundaries.

India, however, is not a signatory to this convention. The UN Convention on Rights of the Child, 1989^[3] is another example of such international comity, whose primary focus was on combating the illicit transfer and retention of children internationally. India is a signatory to this convention.

Definitions

Kidnapping

The offence of kidnapping dates back to the Roman Law itself, where it has defined as ‘plagiarius’, which means a ‘kidnapper’, from its Latin origin and ‘plagium’ has been defined as the act of kidnapping, especially a slave or child, which included harbouring another’s slave, also termed as ‘crimen plagii’. ‘Kidnap’, means “to seize and take away (a person) by force or fraud, often with a demand for ransom.” ^[4] Kidnapping, under the common law, is “the crime of forcibly abducting a person from his or her own country and sending the person to another.”^[5]

“At early common law, kidnapping required a forcible asportation of the victim to another country. Under modern statutes, the asportation need not be this extensive.”^[6]

Abduction

Under Black’s Law Dictionary, ‘Abduction’ has been defined as “the act of leading someone away by force or fraudulent persuasion.” Some jurisdictions around the globe have added various elements to such an offence of abduction, such as that the abductor or the wrongdoer must have the intent (mens rea) to either marry or defile the victim, and that the abductee or the person so kidnapped must be a child (below 16 years of age in India), or that the person committing the offence of abduction must intend to subject the person so kidnapped, to concubinage or prostitution.

It also takes note of the offence of taking away of any female person, especially one who is below a certain age, without her effective consent or by use of persuasion, deceit, or force, for the purpose prostitution, or acts involving illicit sex.

An excerpt from the Handbook of Criminal Law by Justin Miller notes that, “Abduction seems not to have been a crime at early common law but found its way thereinto through an old English statute which defined the crime substantially as the taking of a woman against her will for lucre, and afterwards marrying her, or causing her to be married to another, or defiling her, or causing her to be defiled.“^[7]

Differences between Kidnapping and Abduction

• The offence of kidnapping is committed only with respect to a person sixteen years of age or a person of unsound mind, where such person may be taken away from their lawful guardian or from beyond the territorial limits of India. Abduction, on the other hand, can be committed with respect to a person of any age, where such person is compelled by force, or by deceitful means induced to go from any place.
• Under the offence of kidnapping, the person is removed out of lawful guardianship, or removed from beyond the territorial limits of India.
• Thus, any person below sixteen years of age and without a lawful guardian cannot be kidnapped. Abduction, on the other hand, has reference exclusively to the person forcefully compelled or induced by deceitful means, taken from any place, is covered under the offence of abduction.
• Under the offence of kidnapping, the minor is simply taken away from the lawful guardianship of another person, or from beyond the territorial limits of India. The means used may be innocent as provided under the exceptions to the provisions mentioned, such as acting in good faith.
• In the case of abduction, the means of force, compulsion, or deceit are used to carry out the offence.
• Under the offence of kidnapping, the consent of the person being taken is immaterial. In the case of abduction, acting against the consent of such person moved from any place can give rise to the offence of abduction.
• Under the offence of kidnapping, the intent of the wrongdoer is a wholly irrelevant and immaterial consideration in deciding the applicability of the offence: in abduction, it is significant and a decisive factor.
• Under the offence of kidnapping, the act of ‘taking’ away from lawful guardianship is a substantive offence under the Code.
• The offence of abduction specified under the Code, is an auxiliary offence, and is not punishable by itself, but made a criminal offence only when it is done with one or other of the intents/objectives specified in the sections relating the offence of abduction.

Legal Provisions Under the Indian Penal Code, 1860

Chapter XVI of Indian Penal Code, 1860 (hereinafter as IPC) deals with “Offences Affecting the Human Body”. Under the head ‘Of Kidnapping, Abduction, Slavery and Forced Labour’, the provisions dealing with crimes relating to Kidnapping and Abduction have been laid out. These are: –

Section 359 deals with offence of kidnapping, where its two distinct types have been provided, i.e., kidnapping from India, and kidnapping from lawful guardianship.

Essential ingredients of Kidnapping:

1. Taking or enticing of a person below sixteen years of age
2. Taken out of the keeping of a lawful guardian or from territorial limits of India.
3. Absence of consent of the lawful guardian.

Under section 360 of IPC, it talks about the offence of kidnapping from India, where if any individual who conveys any person beyond the limits of India without the consent of that person, or without the consent of some person legally authorised to consent on behalf of that person, is said to have kidnapped that person from India, and is liable for such offence.

Section 361 talks about the offence of ‘Kidnapping from lawful guardianship.’ The explanation provided under this section clarifies that the words “lawful guardian” incudes any person who has been lawfully entrusted with the care or custody of such minor or other person who may be of unsound mind. Another explanation which has been provided by the lawmakers, establishes that 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 was committed for an immoral or unlawful purpose by the wrongdoer.”

Illustrations

• A kidnaps Z from the lawful guardianship of X, by snatching her away without the having the consent of X to do such act. A has committed the offence defined in this section.
• A forcibly carries or entices B away from his home in the presence of B’s parents, who are his lawful guardians. A has committed the offence defined in this section.
• A carries B away from the playground under the belief that B is his illegitimate son, and believes he acted in good faith by doing so. A has not committed the offence defined in this section.

Section 362 talks about the offence of ‘Abduction’, where any person using force to compel, or by any deceitful means induces, any person to go from any place, is said to abduct that person and shall be held liable under this offence.

Essential ingredients of Abduction:

1. Forceful compelling or inducement by deceitful means of a person.
2. Taken away from any place i.e., unlawful movement.
3. Absence of consent of the person i.e., unlawful intent.

Illustration

‘A’ forcibly carries or compels ‘B’ away from his home. A has committed the offence of abduction.

Section 363 deals with punishment for kidnapping a person. This section lays down the punishment for any person committing the offence of kidnapping shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

Section 363A talks about the offence of kidnapping or maiming a minor for purposes of begging.

Illustrations

• A forcibly carries or compels a minor boy ‘B’ away from his home, without the consent of his parents, in order to employ him for the purposes of begging. A has committed the offence defined in this section.
• A kidnaps kids habitually for the purposes of employing them for begging. A has committed the offence defined in this section.

Section 364 talks about the offence of kidnapping or abducting in order to murder. Any individual who kidnaps or abducts any person in order that such person may be murdered by the wrongdoer, or that such kidnapped person may be so disposed of as to be put in danger of being murdered by the wrongdoer, shall be punished with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Illustrations

• A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
• A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.

Section 364A talks about kidnapping for ransom and offences like that. “Whoever kidnaps or abducts any person, or keeps any person in detention after such kidnapping or abduction has taken place upon him/her, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt by the wrongdoer, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation, or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”

Illustrations

• A kidnaps Z from the custody of his lawful guardians, intending to obtain a sum of amount as ransom for the safe return of Z. A has committed the offence defined in this section.
• A abducts B away from his home and acts in order that B may be murdered as a consequence of such abduction and causes reasonable apprehension in b’s mind that he may be put to death. A has committed the offence defined in this section.

Section 365 talks about kidnapping or abducting with intent secretly and wrongfully to confine person.

Section 366 talks about the offence of kidnapping, abducting, or inducing woman to compel her marriage, etc. “Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. And whoever, by means of criminal intimidation as defined in this Code, or of abuse of authority, or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.”

Illustrations

• A kidnaps Z from her home, intending or knowing it to be likely that Z may be compelled to marry to another person, against her consent to such marriage. A has committed the offence defined in this section.
• A induces B away from her home in order that B may be forced or seduced by other men, to an illicit intercourse with her. A has committed the offence defined in this section.

Section 367 talks about the offence of kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. “

Illustration

‘A’ abducts Z from his home, intending or knowing it to be likely that Z would be subjected to grievous hurt. A has committed the offence defined in this section.

Section 368 talks about the offence of wrongfully concealing or keeping in confinement, kidnapped or abducted person.

Section 369 talks about the offence of kidnapping or abducting child under ten years with intent to steal from its person.

Illustration

‘A’ kidnaps Z aged 5 years old from his home, intending to steal Z’s expensive watch. A has committed the offence defined in this section.

Legal Provisions under Code of Criminal Procedure, 1908

Section 39 talks about the provision where it has been mandated upon public to give information of certain offences, who are aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code. The sub-clause ‘1’ of this section talks about offences relating to kidnapping for ransom, etc.

Section 98 talks about the Court’s power to compel restoration of abducted females, where the District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian, or other person having the lawful charge of such child.

The Magistrate may act upon the complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years for any unlawful purpose, and may compel compliance with such order, using such force as may be necessary.

Section 181 talks about the place of trial in case of certain offences, where any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.

Case Laws

• Chandra Mohan Tiwari v. State of M.P.^[8]

Held: “When motive is equally balanced, there being motive for the accused to commit the crime as also motive for the prosecution witnesses to falsely implicate the accused, court should look to the surrounding circumstances to find the truth.”

• State of H.P. v. Suresh Kumar^[9]

Held: In this case, it was observed that the respondent-accused, along with other co-accused, were alleged to have kidnapped the prosecutrix, and then forced her to marry him at knifepoint, and then had sexual intercourse with her. High Court took note of the findings in the case and found out that the prosecutrix had voluntarily accompanied the accused and was a consenting party to sexual intercourse that had followed.

• Kuldeep K. Mahato v. State of Bihar^[10]

Held: The main contention of the case dealt with the kidnapping from lawful guardianship and abduction, to compel marriage or illicit intercourse. The prosecutrix was below 18 years on the date of the occurrence of the act in question. The appellant had carried her in a tempo to another place and silenced her resistance upon showing of a dagger. It was held that in the present circumstances of this case, offence of kidnapping had been made out. The defence pleaded that the prosecutrix herself came and sat in tempo, but such defence was held as not maintainable. However, in absence of evidence to indicate that the appellant kidnapped her with the intention to marry her against her will, or in order that she may be forced to illicit intercourse, conviction under S. 366 could not be sustained, and was held liable only for the offence of kidnapping.

• Shashidhar Purandhar Hegde v. State of Karnataka^[11]

Held: After paying due regard to the evidence of the victim, the plaintiff witnesses, as well as the facts and circumstances of the case, the High Court concluded that the accused persons were responsible for kidnapping and demanding ransom, and that the trial court had erred in rejecting the cogent and credible evidence of the PWs without considering the same in proper perspective, and also erred in finding fault in testimony of some of the PWs who apprehended the accused without taking police assistance, in view of threat given by accused that any person informing police would be done to death.

• Sajjan Kapar v. State of Bihar^[12]

Held: Meaning and scope of the term “Lawful guardian” was elucidated upon in this case. As per explanation to S. 361, “lawful guardian” includes any person lawfully entrusted with the care or custody of such minor or other person.

In the instant case, the school had been lawfully entrusted with the care or custody of the minor girl. Hence, the offence under S. 363 was said to be complete when the accused took the said prosecutrix away from her school.

• Fekan Yadav v. Satendra Yadav^[13]

Held: The appellant had filed an FIR for the suspicion of the kidnapping of his son while going to school, by accused persons. The boy had been remaining untraced even at the time of filing the suit. Six months prior to such kidnapping, the respondent had threatened the appellant regarding killing his son.

Three months prior to the incident of disappearance, the respondent had gone to the school of appellant’s son and called him outside, but the child did not go.

Hence, the suspicion of appellant against the accused persons regarding kidnapping his son was based on such facts. Having regard to nature and gravity of accusations, the High Court held that it was not justified in granting anticipatory bail to the accused persons. Hence, the order granting anticipatory bail was set aside accordingly.

• Sohan Lal v. State of U.P.^[14]

Held: In this case, abduction by husband had taken place. It was found that no use of force or deceit was employed in such abduction. Hence, the question whether the husband abducted his wife was discussed.

The court held that in ordinary circumstances, there cannot be a question of abduction when a husband takes his wife with him, but if deceit is played upon her or force is applied, it would be considered a different matter altogether.

• Mukunda Madhab Saikia v. State of Assam^[15]

Held: Merely taking away of a woman without the use of force or deceitful means and without the intention specified in S. 362 would not amount to abduction.

• Saroj Kumari (Smi) v. State Of U.P.^[16]

Held: “To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:

1. The person in question has been kidnapped.
2. The accused knew that the said person had been kidnapped.
3. The accused having such knowledge, wrongfully conceals or confines the person concerned.”

• Moniram Hazarika v. State of Assam^[17]

Held: Kidnapping a minor from lawful guardianship under S. 361 by ‘enticement’ was viewed upon, and whether such enticement is necessary to prove any active part played by accused immediately prior to the minor leaving her lawful guardian.

It was held that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, that is sufficient to hold him guilty of such offence.

• State of Haryana v. Raja Ram^[18]

Held: “The object of section 361 seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the 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 this section, out of the keeping of the lawful guardian without the consent of such guardian.”

• Thakorlal D. Vadgama v. State of Gujarat^[19]

Held: The meaning of the word ‘takes’ was interpreted by the court, where such meaning is not confined to use of force and can take many forms. The two words “takes’ and `entices’ are intended to be read together so that each takes to some extent its colour and content from the other.

• Parkash v. State Of Haryana^[20]

Held: Necessary requirements for applicability of section 361 were restated by the apex court as follows, “Held, the gravamen of the offence under S. 361 lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian – It is only the guardian’s consent which takes the case out of the purview of S. 361 Consent of the minor who is taken or enticed is wholly immaterial. Taking or enticing need not be shown to have been by means of force or fraud Persuasion by accused which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, held, is enough to attract S. 361.”

• Parkash v. State of Haryana^[21]

Held: The word “keeping” under S. 361 and meaning thereof was interpreted. Held, that it connotes the idea of charge, protection, maintenance, and control. It was further held that the guardian’s charge and control, is compatible with the independence of action and movement of the minor, the guardian’s protection and control of the minor being available, whenever necessity arises.

• Bihari v. State of M.P.^[22]

Held: Under section 366, any person inducing a minor to leave the guardianship is as guilty as a person who forcibly takes a minor.

• Ram Chander v. State Of Punjab^[23]

Held: The appellant was convicted for the same offence, while the same sentence was not awarded, and the co-accused acquitted. The court had found co-extensive and identical evidence found against two accused, but one accused was acquitted on benefit of doubt, while the other (appellant) was convicted.

Hence, it was held that there being no difference between the cases of the two accused, the other accused must also be acquitted.

• Vinod Chaturvedi & Ors. v. State of Madhya Pradesh^[24]

Held: The brief facts of the case were that upon being persuaded by the accused, the victim went inside the accused’s house, and had come out dressed properly to accompany him.

Held, that the abduction of the victim by the accused could not be proved in this case. Only picking up of the victim by accused could be proved. But accused’s connection with the subsequent assault on the victim could not be established. Hence, the conviction of the accused under Section 367 was not proper.

• Cian v. State^[25]

Held: “For applicability of section 366, Indian Penal Code it is not necessary that actual marriage should take place but it may be sufficient if a person is kidnapped with the intention or knowledge that she is likely to be compelled to marry another person against her will Where the marriage has taken place though the validity of the marriage was in dispute, the charge can be framed against accused under section 366, Indian Penal Code taking into consideration totality of facts.”

• Abhaya Jena v. State of Orissa^[26]

Held: Abduction was distinguished from kidnapping in the present case. It was also noted that the ingredients of the two offences—’kidnapping and ‘abduction’- are entirely different. Hence, these are two distinct offences under the Code.

Conclusion

Legislative action and redress are some of the most effective means to deal with any wrong perpetrated against any individual or a segment of society. The lack of coherence among the legislations and neglect in procedural guidelines often brings the entire purpose of the law, and progress in addressing the issue, to a standstill, and the extent of such neglect has been expressed in terms of frequency of crimes and occurrence rates.

The current legislative framework has been recently improved to address the concern more effectively, yet the society is grappled in a complex socio-legal maze when it comes to addressing such problems.

1.  Crime in India – 2019 SNAPSHOTS (States/UTs) ↑
2. ibid ↑
3. Convention on the Rights of the Child (unicef.org/child-rights-convention) ↑
4. Black’s Law Dictionary 9^th Ed. Pg.948 ↑
5. Ibid ↑
6. Arnold H. Loewy, Criminal Law in a Nutshell 64 (2d ed. 1987). ↑
7. Justin Miller, Handbook of Criminal Law § 104. at 319 (1934). ↑
8. Chandra Mohan Tiwari v. State of M.P., (1992)2 SCC 105: 1992 SCC (Cri) 252 : 1992 Cri LJ 1091 : AIR 1992 SC 891 ↑
9. State of H.P. v. Suresh Kumar, (2008) 10 SCC 104: (2009) 1 SCC (Cri) 24 ↑
10. Kuldeep K. Mahato v. State of Bihar, (1998) 6 SCC 420: 1998 SCC (Cri) 1460 : AIR 1998 SC 2694 ↑
11. Shashidhar Purandhar Hegde v. State of Karnataka, (2004) 12 SCC 492: AIR 2004 SC 5075 ↑
12. Sajjan Kapar v. State of Bihar, (2005) 9 SCC 426 ↑
13. Fekan Yadav v. Satendra Yadav, (2017) 16 SCC 775: 2017 SCC OnLine SC 1146 ↑
14. Sohan Lal v. State of U.P., (1971) 1 SCC 498: 1971 SCC (Cri) 206 : 1971 Cri LJ 1458 : AIR 1971 SC 2064 ↑
15. Mukunda Madhab Saikia v. State of Assam, 2007 SCC OnLine Gau 444: (2008) 2 Gau LR 657 (Gau) ↑
16. Saroj Kumari (Smi) v. State Of U.P., (1973) 3 Supreme Court Cases 669 : 1973 Supreme Court Cases (Cri) 475 ↑
17. Moniram Hazarika v. State of Assam, (2004) 5 SCC 120: 2004 SCC (Cri) 1545 : 2004 Cri LJ 2553 ↑
18. State of Haryana v. Raja Ram, (1973) 1 SCC 544: 1973 SCC (Cri) 428 :(1973) 2 SCR 728: 1973 Cri LJ 651 : AIR 1973 SC 819 ↑
19. Thakorlal D. Vadgama v. State of Gujarat, (1973) 2 SCC 413 : 1973 SCC (Cri) 835: (1974) 1 SCR 178: 1973 Cri LJ 1541: AIR 1973 SC 2313 ↑
20. Parkash V. State Of Haryana, (2004) 1 SCC 339 : 2004 SCC (Cri) 290 : AIR 2004 SC 227 : 2004 Cri LJ 595 ↑
21. Parkash v. State of Haryana, (2004) 1 SCC 339: 2004 SCC (Cri) 290 : 2004 Cri LJ 595:AIR 2004 SC 227 ↑
22. Bihari v. State of M.P., 1968 SCD 435 ↑
23. Ram Chander v. State Of Punjab, 1983 SCC (Cri) 316 ↑
24. Vinod Chaturvedi & Ors. v. State of Madhya Pradesh, (1984) 2 SCC 350 ↑
25. Cian v. State, 2000 (1) Mh.L.J. 672 ↑
26. Abhaya Jena v. State of Orissa, (1997) Crimes 531 (Ori) ↑