What is the difference between Illegal Detention and Abduction?

By Diksha Sharma


Being an Indian citizen, some Fundamental Rights are by our Constitution to discharge our social and personal responsibilities. Part III of the Indian Constitution is titled as Fundamental Rights. Rights are very essential as they secure certain basic and natural rights of a country as well as of the citizens.

These rights are essential as they preserve human liberty, promote an effective, good social and democratic life. Fundamental Rights are the crucial part of our society, and these are valuable as well.

The aim behind these rights was to withdraw certain political controversy and make them established as legal principles.

In the case of Maneka Gandhi Vs. Union of India[1], the Supreme Court stated that:

“These Fundamental Rights represent the basic value cherished by the people of the country since the Vedic times. They are to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of the human rights and impose the negative obligation of the state not to encroach on individual liberty in its various dimensions.”

Police is considered to be the most vital segment of our society. They have given extreme powers and responsibilities to exercise. But do they perform their duties well? The answer is either NO or moderately YES. The exploitation of power done by the Police is one of the most upsetting and dreadful face for a country.

Nowadays several citizens of our society turn out to be the victims of custodial violence done by Police. Torture, illegal detention, custodial deaths etc. are all examples of violations done by those who are meant to enforce the law. As they forcefully takes away a person from one place to another without their consent or will.

Thus, this article deals with the cruelty of Police as well as our society as they are forgetting our culture and country’s civilization.

What is Detention?

Basically, “Detention” means when any person is taken into custody or Arrested by any private individual or by any legalized authority by removing the freedom or liberty at that time to move. At times, Detention of an individual is done for the security of the state and benefit of the society.

Somewhat, people consider Arrest and Detention is one and the same thing, however, that is not true.

There is an enormous difference among these two situations that is in detention, a person is not charged of committing any crime, but he is restricted from his liberty and kept in Police custody on grounds of reasonable suspicion.

As long as the person is in Police Custody, the Police keeps investigating against him. After the Police questioning if Police thinks reasonable than the person detained would be released.

But the situation of Arrest is totally different, a person can only be arrested if he is charged for any crime and once, he is arrested, he has to be produced before a magistrate within the next 24 hours.

Section 151 of the Code of Criminal Procedure states that:

“Section 151: Arrest to prevent the commission of cognizable offences.

(1) A Police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub- section (1) shall be detained in custody for a period exceeding twenty- four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other law for the time being in force”

It means to detain a person so that to prevent that person from committing any possible crime or Preventive Detention is an action taken on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.

An officer can detain such suspected person, but they cannot keep that person in custody for a period exceeding more than 24 hours.

It is questionable that, if Detention is a legal process and also compulsory than how it turn out to be illegal?

What is Illegal Detention?

From the above discussion it is clearly understandable that Detention is somewhere compulsory for the security of the state and maintenance of laws and orders. Detention is done basically to put a stop to any offence that can be committed in future.

From time to time when the liberty of the individual crosses the perimeter and disturbs the maintenance of the State and at the peak of time it fails to have power over the enjoyment of individual’s liberty, in that case the State uses the Detention measures.

Hence, Detention is legal and an imperative constituent for the welfare of public and to preserve the rule of law.

Sometimes a specific situation arises where custody is unlawful or does not involve any lawful authority which directly signs in the direction of the violation of right and this continues the crime of Illegal Detention.

But, sometimes in some situation these powers get exploited by our Police officers when they act outside of their powers and misuse their power for their own requirements.

In the case of Joginder Kumar Vs. State Of Uttar Pradesh[2] the petitioner was detained by the police officer and his whereabouts were not told to his family members for a period of 5 years. Taking serious note of the police high handedness and illegal detention of a free citizen the Supreme Court laid down following guidelines:

  • The police officer shall inform the arrested person when he is bought to the police station of this right.
  • An entry shall be required to be made in the diary as to who was informed of the arrest.

These protections from power, the court held to follow from articles 21 and 22(1) and enforced strictly.

They recklessly use their powers on the general public just to satisfy their self and to illustrate their supremacy. These laws give extensive power to the Government Officials to restrain the freedom of citizens without sensible restrictions. Any law, which grant for such powers should not have any position in a modern democratic society.

Liberty is the most precious thing that all humans crave for. As soon as this liberty gets detained by someone together with our government authorities without any lawful justifications than it turns out to be illegal. Detaining someone illegally directly sign towards the violation of human rights.

No one is having any authority to violate these rights for their self benefits.

So, detention can be illegal by depriving one from his liberty unlawfully or by not having any reasonable legal grounds. Illegal After having Fundamental Rights and safeguards to protect them than also they get exploited not by others but only by our Police officers. It poses a question before us:

Is after many years of democracy is citizen’s liberty protected in India?

The answer is clearly NO for the reason that our protection of liberty is not in safe hands.

Besides illegal detention is basically done by public officials but what if the detention is done by private individual by force that not to move from one place to another? The answer is abduction.

What is Abduction?

Section 362 of Indian Penal code 1860 defines the word “Abduction”, stating:

“Section 362 Abduction- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.[3]

The above section means that Abduction is the criminal act of taking away of a person and moving him or her from one place to another against their will.

Ingredients of Abduction

  • Forcible compulsion or inducement by deceitful means

In case of abduction a person is compelled either by use of force or is induced by practicing deceit to move from one place to another.

Actual use of force is necessary and merely show or threat of force is not sufficient. The other way of abduction can take place by inducing someone to go from someplace by misleading a person to do something that would not normally do.

Inducement means “to lead into something”. In inducement there is some active suggestion on the part of the abductor which in the case of person abducted to move to some place where he would not have gone but for this suggestion. The change of mind of victim must have been caused by an external pressure of some kind.

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

When force, fraud or deceitful means are used to compel or induce a man to move from one place to another the offence under this section is constituted.

In Chundu Murmu Vs. State of Bengal[4], there were frequent quarrels between husband and wife and the fact that deceased wife had left matrimonial home was not disputed.

Accused had brought back the deceased on the day where from she when she was missing was not disputed accused was arrested and dead body of deceased was recovered on the disclosure made by the accused was proved.

Thus, circumstances relied on and proved sufficient to convict accused. So, it was held that act of bringing back wife with whom relations was estranged to matrimonial home dose not attract necessary ingredients of either offence of kidnapping or abduction.

Victims are abducted by criminals for various intentions, that is, for adoption, begging, illicit intercourse, marriage, prostitution, ransom, revenge, sale, selling body parts, slavery, unlawful activity, murder and for other purposes. Sometimes abduction is done with the intention of doing murder of that person.

These circumstances have been defined in Section 364 of Indian Penal Code by stating:

Section 364. Kidnapping or abducting in order to murder

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, 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.”[5]

The above section prescribed punishment when victim is kidnapped or abducted in order to be murdered. The kidnapper or abductor will be punished for life or rigorous imprisonment which may extent to 10 years and will also be liable for fine. If a kidnapper or abductor murders the victim this section has no application, and he should be convicted of murder.

Ingredients to invoke Section 364

  • A person kidnaps or abducts another person,
  • The act is done in order that such person may be:
    • Murdered, or
    • So disposed of as to be put in danger of being murdered.

For Example: 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.

In Sitaram Sao Vs. State of Jharkhand[6], the accused driver with others was alleged to have abducted, looted and killed the wife of his employer. The evidence of one of the accused turned approver gave sequence of events which led to murder of the deceased lady. He deposed as to how the conspiracy was hatched and how it was executed.

The injuries found on the body of the deceased and recover of looted money from the driver corroborated with the approver’s evidence. The conviction of the accused on the basis of evidence of the approver was, therefore, held proper.

Section 363A – Kidnapping or maiming a minor for purposes of begging

Explanation: Sub section 1 defines that is any person kidnaps or abduct any minor or takes away the custody of minor not being legal guardian just for the purpose of begging or employing that minor will be punishable for the imprisonment of 10 years and will also have to pay fine as described by the Court.

Sub section 2 says that if any person injures any minor just for the purpose of begging than that person will be punishable with imprisonment for life and shall also be liable for fine.

Sub section 4 defines “begging” that asking for money in public places by the way of dancing, singing, performing tricks or selling articles etc. It also includes that entering into any private premises for begging money. Mainly it focuses on that if any minor is used for the purpose of begging money.

Sub section 5 defines “minor” that if the male is under 16 years of age and if the female is less than 18 years of age will be considered as minor.

The main objective of this section is to put down effectively the evil of kidnapping of children for exploiting them from begging. By this section kidnapping or abduction of minor or obtaining custody of minor and maiming of a minor for the purpose of begging or employing have been made specific offence.

Section 366 Kidnapping, abducting or inducing woman to compel her mar­riage, etc.

Explanation: This section strictly says that to constitute the offence under this section the prosecution has to prove that the accused has kidnapped or abducted the woman with the intention to compel her to marry a person against her will or without her consent, or with an intention of an illegal intercourse with that woman.

Then according to this section that kidnapper or abductor will be punished for the imprisonment of term 10 years and will also be liable to fine.

An incident occurs where mother-in-law deceitful induced and forced her widow daughter-in-law who was under 16 years of age to go from one place to another and then hander over that girl to two persons with the criminal intention that she might be compelled to marry against her will.

It was held that the mother-in-law long with those two persons was guilty of an offence under this section.

In Emperor Vs. Jasauli[7] two girls below 18 years ran away from their houses and remained for few days in the house of woman of quality and no report was made to the Police, the woman in whose house the girls had stayed was held guilty under this section.

What is the difference between Illegal Detention and Abduction?

Illegal detention Abduction
  1. Means detaining a person from his personal liberty or not allowing moving or where custody is unlawful.
Means forcefully taking away a person or inducing the person to move from one place to another.
  1. Illegal detention is done to show power and strength of Police.
Intention plays a major role to commit the offence of abduction as a person is punishable only if abduction is done with a criminal intention
  1. Illegal detention is an unlawful process and which is done by Police
Abduction is a criminal offence which is committed by private person.
  1. Illegal detention is done in respect of any person of any age. There is no bar to any specific age of person.
Abduction is committed mainly 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 for the purpose of begging.

Suppose A takes away a boy of age 15 years without the consent of boy’s guardian for the purpose of employing him for begging he will be liable under sub- section 1 of section- 363A


Illegal Detention is just a blank spot on our constitutional laws which shows the disappointment of our democratic government. After having Fundamental Rights and safeguards to protect them than also they get exploited not by others but only by our Police officers.

It puts a question mark that after many years of democracy is citizen’s liberty protected. The answer is clearly NO for the reason that our protection of liberty is not in safe hands.

Abduction is also a matter of serious concern as it is mainly affecting woman and children it is destroying the safety of these two above sections of our society.

Abduction is itself a question on our Government and its laws that for how much time the people have to bear the loss of getting away from their loved once and also for how much time women of our society have to sacrifice their respect.

These two offences have made every citizen to think that their safety is secured neither by the Police officials nor in the society. They have to fight alone only to protect themselves and their loved once as our laws are getting old day by day which cannot protect citizens from these grievous offences.

Security of women is always an issue from past many years but then also there is no relief even now also. They have always been disrespected and seduced by our society for self benefits. Our country where goddess like Lakshmi, Saraswathi etc. are worshiped women abduction is a shame on such society.

  1. Maneka Gandhi Vs. Union of India 1978 AIR 597, 1978 SCR (2) 621,
  2. Joginder Kumar Vs. State of Uttar Pradesh 1994 AIR 1349
  3. Section 362 of Indian Penal Code
  4. Chundu Murmu Vs. State of Bengal AIR2012 S.C. 2160
  5. Section 364 of Indian Penal code
  6. Sitaram Sao Vs. State of Jharkhand A.I.R. 2008 S.C. 391,
  7. Emperor Vs. Jasauli (1912) 34 All 340,

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