Kidnapping and Abduction: Key Differences

Share on:

Introduction

Kidnapping and abduction are two terms often used interchangeably to describe the act of taking someone against their will. In this comprehensive article, we aim to provide answers to the fundamental questions, like, What exactly is kidnapping, and how does it differ from abduction? What are the various types and forms that these actions can take? By exploring the definitions, types, and forms of both kidnapping and abduction, we'll uncover their key differences, offering you a complete understanding of these critical concepts.

Kidnapping

Kidnapping refers to the act of unlawfully seizing and detaining an individual against their will, often with the intent to demand a ransom or exert control over the victim for various reasons. It typically involves the use of force, threat, or deception to capture the victim. Kidnapping is a criminal offence in most jurisdictions and is universally condemned due to its grave impact on the victim’s physical and psychological well-being. Now, let us understand, ‘What are the types of kidnapping?’ Under Section 359 of the Indian Penal Code, 1860, Kidnapping is divided into two types, kidnapping from India and Kidnapping from lawful guardianship.

Types of Kidnapping

The aforementioned types of kidnapping are provided under Sections 360 and 361 of the IPC. 

Kidnapping from India

Section 360 of the IPC defines ‘kidnapping from India’ as “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 kidnap that person from India.” The main essentials that amount to this offence include, 

• to convey an individual beyond the limits of India whereas the offence under this section does not apply until the person reaches not only a foreign territory but also his destination.
• to take such an individual or person without his own or any legally authorized person’s (on behalf of the person) consent.

Provided that the offence is not restricted to persons of unsound minds or minors but can be perpetrated against any male or female, major or minor, irrespective of their age and nationality.

Kidnapping from lawful guardianship

According to Section 361 of the IPC, ‘kidnapping from lawful guardianship’ means “Whoever takes or entices any minor under 16 years of age if a male or under 18 years of age if a 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.” The main elements that amount to this offence include:

• take or entice a person, minor, or person of unsound mind.
• such a person must be under 16 years and 18 years if male and female respectively.
• take or entice such a person out of the keeping of the lawful guardian.
• the process to take or entice a person should be done without the consent of the lawful guardian.

Abduction

Unlike kidnapping, abduction is not a crime in itself but the addition of intention to cause other offences make it a punishable offence. It encompasses a broader spectrum of scenarios. In general, abduction refers to the act of taking someone away by force or deception, but it may not necessarily involve the intention to harm or exploit the individual. Under Section 362 of the IPC, the term ‘abduction’ is defined as “Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.”

Consider this scenario: A divorced couple has joint custody of their child, and there exists a court-issued order that outlines the visitation rights of the non-custodial parent. If the non-custodial parent takes the child and retains custody without the custodial parent's consent or in defiance of the court order, it may be classified as abduction according to legal standards.

Key Differences Between Kidnapping and Abduction

Provision under IPC

• Kidnapping: This offence is defined under Sections 359-361 of the Indian Penal Code.
• Abduction: It is defined under Section 362 of the Indian Penal Code.

Age

• Kidnapping: The offence of kidnapping is committed against a minor that is 16 years in the case of males and 18 years in the case of females.  
• Abduction: There is no provision for age in the case of abduction, any person can compel any other person by force and deceitful means to move from one place to another.  

Lawful Guardianship

• Kidnapping: In the case of kidnapping, the person kidnapped is removed from his/her lawful guardianship. 
• Abduction: In order to determine the offence of abduction, lawful guardianship is immaterial. 

Means

• Kidnapping: A person or minor is simply taken away therefore means used to kidnap is not appropriate.
• Abduction: Force, fraud, or deceit are the means employed in abduction.  

Consent

• Kidnapping: The consent of the lawful guardianship matters whereas the consent of the person kidnapped is not necessary. 
• Abduction: The consent of a person plays an important role in abduction. Abduction is said not to be committed if there is a presence of free and voluntary consent of the abducted person.

Intention of the Accused

• Kidnapping: The intention of a person to commit the offence, of kidnapping, is immaterial. 
• Abduction: The intention is not immaterial in the case of abduction, which means a person is liable to have committed abduction only if there is ill intention behind the same.

Severity of the offence

• Kidnapping: A more serious offence.
• Abduction: Less severe as compared to kidnapping.

Nature of offence

• Kidnapping: Not a continuing offence. As soon as the person or minor is separated from his/her lawful guardianship, the offence is completed.
• Abduction: A continuing offence as the place of the abducted person changes from one place to the other.

Punishment

• Kidnapping: Punishment for kidnapping is mentioned under Section 363 of the IPC which is imprisonment extending to 7 years and a fine.
• Abduction: It is not punishable unless done with the intention to commit an offence mentioned under Section 364 to 369 of the IPC.

Aggravated Kidnapping and Abduction

• ‘Kidnapping or maiming a minor for purposes of begging’: The offence of kidnapping any minor for the purpose of begging is punished with imprisonment for a term extending to 10 years and a fine under Section 363A(1) of the IPC. On the other hand, the offence of maiming any minor for the purpose of begging is punished with life imprisonment and a fine under Section 363A(2) of the IPC. 
• ‘Kidnapping or abduction in order to murder’: The act of kidnapping or abducting a person with the intent to cause their death or cause grievous harm that may lead to their death is addressed under Section 364 of the IPC. The offender is punished with imprisonment for life or imprisonment for a term which may extend to 7 years and a fine.
• ‘Kidnapping for ransom, etc.’: Section 364A of the IPC addresses the act of kidnapping or abducting a person with the intent to hold them for ransom and illustrates that the offender “shall be punishable with death, or imprisonment for life, and shall also be liable to fine”.
• ‘Kidnapping or abducting with intent secretly and wrongfully to confine person’: This aggravated form of kidnapping and abduction is defined under Section 365 of the IPC. It states that “Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
• ‘Kidnapping, abducting or inducing woman to compel her marriage, etc.’: This offence of kidnapping or abducting a woman with the intent to compel her into marriage against her will is punishable under Section 366 of the IPC. The punishment for the same is imprisonment which may extend to 10 years and a fine. 
• ‘Procuration of minor girl’: Under Section 66A of the IPC, the act of kidnapping or abducting any minor girl (under 18 years) with the intention of engaging them in illicit sexual intercourse is punished with imprisonment which may extend to 10 years and a fine.  
• ‘Importation of girl from foreign country’: Section 366B of the IPC deals with the offense of importing or exporting any girl under 21 years of age with the intent of engaging them in sexual exploitation. This offence is punished with imprisonment extending to 10 years and a fine. 
• ‘Kidnapping or abducting in order to subject a person to grievous hurt, slavery, etc.’: The punishment related to this offence is described under Section 367 of the IPC. It states that “Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
• ‘Wrongfully concealing or keeping in confinement, kidnapped or abducted person’: This offence is punishable under Section 368 of the IPC which may extend up to ten years, and may also include a fine. The severity of the punishment may vary depending on the specific circumstances of the case, such as the age and vulnerability of the victim and the intentions of the person concealing or keeping the kidnapped or abducted person in confinement.
• ‘Kidnapping or abducting child under ten years with intent to steal from its person’: The offenders involved in such a crime are punished under Section 369 of the IPC where the punishment awarded is imprisonment which may extend to seven years and a fine.

Hostage and Kidnapping

A hostage refers to a person who is seized or detained by a group or individual, often as a means of leverage or coercion to achieve certain demands. It typically involves holding someone against their will to compel authorities or others to meet the hostage-taker's demands. Kidnapping, on the other hand, is the act of unlawfully abducting or capturing a person against their will. While both hostage-taking and kidnapping involve the illegal detention of individuals, the key difference lies in the intent, hostage situations often involve a demand or negotiation, whereas kidnapping may not necessarily have a specific demand and could be driven by various motives, including ransom, harm, or control. Hostage is a punishable offence under Section 368 of the IPC that deals with ‘Wrongfully concealing or keeping in confinement, kidnapped or abducted person’. 

Related Case Laws

• The State of Haryana vs. Raja Ram (October 27, 1972)
• Thakorlal D. Vadgama vs. The State of Gujarat (May 02, 1973)
• State of Punjab vs. Gurmit Singh (January 16, 1996) 

Conclusion

Given the serious nature of both kidnapping and abduction, preventive measures and effective response systems are crucial. Law enforcement agencies and communities must work together to raise awareness, implement safety protocols, and educate individuals on personal safety measures. Governments should enact stringent laws to deter potential perpetrators and provide support for victims and their families.