KIDNAPPING AND ABDUCTION

Kidnapping
Section 359 of the Indian Penal Code lays down that the Kidnapping is classified into two
categories i.e. Kidnapping from India and Kidnapping from lawful Guardian.

Kidnapping from India :

Section 360 explains the concept of Kidnapping from India. If anyone takes a person out of the
limits of India without his/her consent or without the consent of the person entitled to give
consent, then the offence of kidnapping from India is committed.

Illustration: Afisha takes Ashu from India to SriLanka without the consent. This is a case of
Kidnapping from India.

Kidnapping From Lawful Guardianship:

Section 361 of IPC deals with Kidnapping from Lawful Guardianship. When any person takes
away or entices any minor or a person of unsound mind, away from the keeping of their lawful
guardianship without their consent, this is a case of Kidnapping from Lawful Guardianship. For
the purpose of this section, any boy below the age of 16 years and any girl below the age of 18
years is minor.

Illustration: Arun is a boy who is 11 years old and under the legal guardianship of his father.
Anil, the neighbour takes Arun to the waterpark on the outskirts of the city without the consent
of Arun’s father. This is a case of Kidnapping from lawful Guardianship.

There are two exceptions to Section 361 and they are as follows:

1. He is the father of an illegitimate child.

2. He is entitled to the lawful custody of the child.

Punishment for Kidnapping

Section 363 of the IPC deals with the punishment for the offence of Kidnapping. The punishment
prescribed in this section is Simple imprisonment or Rigorous imprisonment extendable up
to 7 years and Fine.1

1
https://lawctopus.com/clatalogue/understanding-the-difference-between-kidnapping-and-abduction/
CASE NAME:

Smt. Saroj Kumari vs The State Of U.P. on 24 November, 1972

Facts

 The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just
born a few hours ago. She took him away by saying that the staff nurse wanted to do
the cord dressing of the child.
 When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told
the sister-in-charge. She searched the premises for the accused and the child. When she
failed to find them the doctor and superintendent of the hospital was informed and they
further told the police.
 On investigation, police found the child at the house of Ram Das, who was the tenant
of the appellant. At the time of the seizure of child, appellant was lying next to the
child and the accused kidnapper was sitting in the same room. The appellant was
charged with a punishment of rigorous imprisonment for 5 years under Section 368 of
IPC and the accused was charged under Section 363 (kidnapping for murder). 

Issue

Is the appellant guilty under section 368 of IPC?

Judgement

 The court dismissed the appeal petition. It explained that to constitute an offence under
Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in
question must be kidnapped; (2) The accused must know that the person has been
kidnapped (3) The accused having such knowledge wrongfully conceals or confines
the person.
 In the present case, the first essential was fulfilled when the accused took the 15 hours
old child away from his mother, the lawful guardian. The second essential was an
inference drawn from the facts of the case and the third essential was evidenced as the
appellant made it appear that the child was hers.

2
Smt. Saroj Kumari v. The State Of U.P. [1973] SC 201, (1973) 3 SCC 669.
 IPC 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

When a person compels a person or induces a person to move from one place using deceitful
means or force, it is a case of Abduction. Section 362 of the Indian Penal Code deals with the
offence of Abduction. It is not mandatory that physical force has to be actually used, even the
threat of using force is enough.

Illustration: If Anita puts a gun on Alisha’s head and asks him to go to her house with her. She
threatens Alisha that if she didn’t go with him, he will shoot her. She goes to her house because
of the threat. This is a simple case of Abduction.4

Ingredients of Abduction:

Forcefully Compelling or inducement of a person by deceitful means

The provision makes it amply clear that taking away of a person should be accompanied by
either forceful compelling or by deceitful means, merely threatening to use force would not
result in abduction of a person. The element of compelling by force of inducement by fraudulent
or deceitful means is a necessary ingredient to amount the taking of person to abduction.  Force
has been defined under Section 349 of the Indian Penal Code and has the same meaning under
this section. Inducement means “0to lead into” something and thus deceitful inducement would
be misleading a person to do something which he or she wouldn’t ordinarily do.

To go from any place/ Going of a person from any place

To constituteabduction, the person so abducted, must have gone from one place to another by
compulsion of force or by inducement by deceitful means.5

3
https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-362-abduction/

4
https://lawctopus.com/clatalogue/understanding-the-difference-between-kidnapping-and-abduction/

5
https://lawtimesjournal.in/abduction/
Role of Consent

Consent of the person who is moved or taken away is of vital importance in abduction. Unlike
kidnapping where consent of the person who is taken away is immaterial, in abduction consent
given by the person moved will not amount to an act of abduction. 

Illustrations

A is a minor daughter of B. A voluntarily goes away with C and indulges in sexual relations with
him. C cannot be held liable for abduction because A wilfully consented to go with him, there
was no use of force or inducement.6

CASE LAW:

Vinod Chaturvedi v. State of Madhya Pradesh

n the present case, the appellant was alleged to have abducted the deceased Brindaban. The
process of investigation pointed out that Brindaban on being persuaded by the accused persons
and Vinod in particular went inside his house, came out properly dressed to accompany the
group to village Ramapura. Such conduct made it clear that Brindaban was not abducted the
accused persons.7

Aggravated Forms of Abduction or Kidnapping

Kidnapping or maiming a minor for begging. – Section 363 A

6
https://lawtimesjournal.in/abduction/

7
Vinod Chaturvedi Etc v. State Of Madhya Pradesh [1984] SCR (3) 93.
Kidnapping or Abducting to Murder. – Section 364

Kidnapping for Ransom. – Section 364A

Abducting or Kidnapping with intent to secret and wrongful confinement. – Section 365

Kidnapping or Abduction a woman to compel her for marriage, etc. – Section 366

Procuration of Minor Girl – Section 366A

Kidnapping or Abducting to subject a person to Grievous Hurt – Section 367

Kidnapping or Abducting for Wrongfully Concealing or Keeping in Confinement – Section 368

Abducting or Kidnapping a child under ten years with the intent to steal any movable property
from him or her. – Section 369

Abducting or Kidnapping for the purpose of Slavery and Trafficking – Section 370

Kidnapping for sale and purchase of minor for immoral purposes. – Section 372

Abduction or Kidnapping for Forced Labour. – Section 374

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION:

 Basis Kidnapping Abduction

Section 359 of IPC states the two

types of kidnapping. Section 360
Provision of The definition of abduction is
defines kidnapping from India,
law given in Section 362 of IPC. 
Section 361 defines kidnapping
from lawful guardianship.

As per section 360 and 361, the There is no provision which puts a
female kidnapped should be under bar on the age of the person
Age of the
18 years of age and male abducted, since being a minor is
victim
kidnapped should be under 16 not essential to constitute this
years of age. offence.

In kidnapping, the person is taken

In abduction. force, deceit or
away or enticed. The means of
Means  compulsion is used to take a
doing these is irrelevant to
person from a place.
constitute the crime.

Here lawful guardian refers to a

person who is legally authorised to
Removal from In abduction, there is no concept
take care of a minor or a person of
lawful of taking a person away from
unsound mind. For kidnapping, it
guardianship his/her lawful guardian.
is essential that the victim is taken
away from their lawful guardian

Consent of the person kidnapped

In case the person abducted gives
Consent of the is immaterial, however, the
his/her consent, it is considered
victim consent of the guardian can be
that there is no offence. 
material.

In kidnapping the intention of the

In abduction, intention is
The intention person kidnapping the minor or
essential to determine the guilt of
of the accused person of unsound mind is
the accused.
immaterial. 

Nature and Since kidnapping is a substantive Since abduction is an auxiliary

Punishment offence, it’s general punishment is offence, it does not have a

prescribed in section 363 of IPC as
imprisonment for a term up to
seven years and a fine.
general punishment prescribed in
the IPC. Rather, the punishment
of specific types of abduction is
given in different sections of IPC.
(As discussed above) 

Abduction is a continuing offence

because it does not end when a
Continuity of Kidnapping is not a continuing person is moved from a particular
the offence offence. place, rather continues with every
movement from one place to the
other.

The offence is completed as soon It is a continuing offence and

Completion of as a person is taken away from involves forcibly or deceitfully
the offence the country or from his/her lawful taking a person from one place to
guardianship. another