Abduction and Kidnapping: Legal Insights with Adv. Ajmal Hasan

New Delhi:- Adv. Ajmal Hasan Judicial Service Aspirants Read and comment on answers written on Abduction and Kidnapping.

Abduction and Kidnapping

Question 2. Explain the difference between the offenses of Abduction and kidnapping. (300  words)

Answer. Section 359 of the Indian Penal Code 1860 deals with Abduction and section 362 about kidnapping.

Section 369 Abduction – There are two types of Abduction.

1. Abduction from India – Section 360
2. Abduction from legal guardianship – section 361

The literal meaning of abduction is – ( Bal chori )

Section 360 – Abducting from India – Whoever causes any person-

1. without that person’s consent, or

2. Without the consent of any person legally authorized to give consent on that person’s behalf, he is deemed to have abducted that person from India.

Section 361 – Abducting from legal guardianship – A person is said to have been abducted from legal guardianship when he –

(1) Male under the age of 16

(2) Women under the age of 18 years, or

(3) A person of unsound mind.

Out of the guardianship of their legal guardian, “takes away” or “lures away” without the consent of such guardian.

 Section 362. Kidnapping- A person is deemed to have committed kidnapping when he, takes any person away from any place-

1. Forcefully compels, or

2. Inspires by deceitful means.

Kidnapping is defined in section 362. Kidnapping is not a substantive offense under this section, but an ancillary act that is not in itself punishable. Kidnapping is criminal only if it is done with some criminal intent.

DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING 

1. The offense of Abduction can be committed only to a child below the age of 16 years or a girl child below the age of 18 years or a person of unsound mind, while the offense of kidnapping can be committed against a person of any age.

2. Under Abduction, a person is removed from the guardianship of his lawful guardian, so the offense of Abduction does not occur by “taking” or “misleading“ the child without the guardian, whereas in kidnapping, the person is under the guardianship of someone. It is not necessary to be.

3. Guardian is very important in Abduction because Abduction is done only under lawful guardianship, whereas in kidnapping, the presence of a guardian is insignificant, kidnapping is completely related to the person who is kidnapped.

4. Consent of the affected person is insignificant to constitute the offense of Abduction, whereas in kidnapping consent is given without coercion or pressure so its ends the crime.

5. The intention of the abductor is of no importance in Abduction, whereas in kidnapping the intention of the kidnapper is necessary for this crime because kidnapping itself is not a crime, it is an offense only when it is done from a particular place.

6. Merely “to be carried” by the affected person is sufficient to constitute the offense of Abduction, whereas to constitute kidnapping, the affected person must be moved by force or deceit.

7. Abduction is not a perpetual offense, because it is completed at the same time a person is deprived of lawful guardianship, whereas the offense of kidnapping is a continuing offense so long as it continues Till the kidnapped person is brought from one place to another.

8. Abduction is a fundamental offense, whereas kidnapping is not automatically punishable but becomes criminal when it is committed for any of the purposes specified in sections 364-369.