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Q. What is meant by kidnapping from India, kidnapping from guardianship, and abduction? Differentiate between Kidnapping and Abduction.


Kidnapping from India - Kidnapping from India means taking anybody, without his consent, out of the borders of India. Section 360 defines it as follows -

Section 360 - Whoever conveys any person beyond the limits of India without the consent of that person or of some person legally authorized to consent on behalf of that person, is said to kidnanap that person from India.

For example, if A takes B without his consent or without B's lawful guardians consent to Pakistan, A would be committing this offence. The essential ingredient of Kidnapping are -
  1. The person should be conveyed out of the borders of India.
  2. The person should be conveyed without his consent or without the consent of the person who is legally authorized to consent on his behalf.  

Thus, if a person is not capable of giving valid consent as in the case of a minor or a person with unsound mind, the consent of his lawful guardian is required to take him outside India.

Kidnapping from Lawful guardianship - Kidnapping from lawful guardianship means taking a child away from his lawful guardian without the guardian's consent.  Section 361 defines it as follows -

Section 361 - Whoever takes or entices any minor under 16 yrs of age if male or 18 yrs of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation - The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception - 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 is committed for an immoral or unlawful purpose.

Based on this section the essential ingredients are -
  1. The person should either be a minor or a person of unsound mind - This implies that the person is not capable of giving consent. In case of male child the age is 16 yrs while in case of a female child the age is 18 yrs. For a person on unsound mind, age is immaterial.
  2. Such person be taken or enticed away - This means that either force is used or any enticement that causes the person to leave domain of the lawful guardian is used. For example, if A shows toffee to a child C thereby causing the child to come out of the house and follow A, it fall under this category.
  3. Such person must be taken or enticed away from the lawful guardian -  Only when the child is under the lawful guardian, can he be kidnapped. This means that the child should be under the domain of the lawful guardian. For example, an orphan wandering on the streets cannot be kidnapped because he doesn't have a lawful guardian. However, this does not mean that a child must be with the lawful guardian. For example, a child siting in a school is also under the dominion of his father and if A takes such a child away, it would be kidnapping. Further, a lawful guardianship does not necessarily mean a legal guardian. A legal guardian may entrust the custody of his child to someone else. Taking a child away from such custody will also fall under this section. For example, A entrusts his child to B, his servant, to take the child to school. If, C takes the child away from the servant, this would be kidnapping because the servant has the lawful guardianship of the child.
Distinction between taken away and allowing a child to follow -
In Vardrajan vs State of Madras AIR 1965, SC observed that there is a difference between taking away a minor and allowing the minor to follow. If a person knowingly does an act which he has reason to believe will cause the child to leave the guardian, then it would amount to taking away the child, however, if child follows a person even when a person does not do any act meant to entice a child to leave his guardian, he cannot be held responsible. For example, if a child follows an icecream vendor, without any enticement from the vendor, while the guardian fails to keep the watch, the vendor cannot be held guilty under this section.

In Chajju Ram vs State of Punjab AIR 1968, a minor girl was taken away out of the house for only about 20 - 30 yards. it was held that it was kidnapping because distance is immaterial.

Kidnapping is complete as soon as the minor or the person with unsound mind leaves the custody of the guardian. It is not a continuing offence. Thus, when a child is kidnapped from place P1 and taken to place P2 and then from P2 to P3, kidnapping was done only once.

Section 362 of IPC defines Abduction as follows -

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

It means compelling a person, or to induce him to go from where he is to another place.  The essential ingredients are -

A person goes from one place to another -  A person cannot be abducted at the same place where he is. For abduction to take place, the person should physically move from one place to another.
Either by forcible compulsion or by inducement - The movement of the person must be because of some compulsion or because of some inducement. For example, A threatens B on gun point to go from his house to another city. Here, A has compelled B to go from his house and is thus guilty under this section.

Here, the age of the abducted person is immaterial. Thus, even a major can be abducted if he is forced to go from one location. But if a minor is abducted, it may amount to Kidnapping as well. Further, it is a continuing offence. As long as a person is forced to go from place to place, abduction continues.

Differences among Kidnapping from India, Kidnapping from lawful guardian, and Abduction -
Kidnapping from India (Section 360) Kidnapping from lawful guardian (Section 361) Abduction (Section 362)
A person is taken out of the limits of India. A person is taken away from the lawful guardian. A person is compelled by force or induced by deception to go from any place.
Age of the person is immaterial. The person must be less than 16 yrs of age if male, less than 18 if  female, or of unsound mind. Age of the person is immaterial.
It is not a continuing offence. It is not a continuing offence. It is a continuing offence.
The person is conveyed without his consent. Consent of the person kidnapped is immaterial. Person moves without his consent or the consent is obtained by decietful means.
It can be done without use of force. It can be done without use of force or deception. It is always done by the use of force or deception.