• Section 359 of the Indian Penal Code deals with what is ‘Kidnapping’. According to this section, kidnapping can be classified as ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
• Section 360 of the Code says that when a person is conveyed beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
• Section 361 of the Code provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.
• In the case of State of Haryana v Raja Ram , the accused induced the prosecutrix who was 14 years of age away from her lawful guardianship. The Supreme Court held that the persuasion by the accused created a willing on the part of minor which kept her away from her lawful guardianship and therefore it amounted to ‘kidnapping’.
• ‘Abduction’ has been defined in Section 362 of the Indian Penal Code which says that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.
• In the case of Bahadur Ali v King Emperor, the accused misrepresented himself as a police constable and kept a girl in his house for a ransom of Rs 600. The court held that his act amounted to abduction.
Difference between abduction and kidnapping
• Age of the Aggrieved Person
In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC is 16 in case of males and 18 in case of females (as seen in the case of State of Haryana v Raja Ram).
• In case of Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be booked with abduction (as in the case of Bahadur Ali v King Emperor).
Removal from Lawful Guardianship
• Here the lawful guardianship shall include any person who has been authorized by law to take care of the person who has yet not attained the age of majority. A lawful guardian may be the parents, in-laws, etc.
• As Kidnapping takes into consideration the age of the person being kidnapped, the crime involves the taking away from the guardianship of a lawful person who has been authorized by law to take care of such minor.
• Since Abduction considers only the person who has been abducted, lawful guardianship does not come into the picture.
• Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.
• The means used in case of abduction may be force, compulsion, or deceitful means.
• In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent. The consent obtained from the person shall be a tainted one (as seen in the case of State of Haryana v Raja Ram).
• In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.
The intention of the Accused
• In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused (as in the case of Queen v Prince ).
• In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.
Continuity of the Crime
• Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship.
• Abduction is a continuing process and it this the person so abducted is removed from one place to another.
• Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.
• Abduction is only an auxiliary act and is not punishable in itself. Therefore, there is no general punishment for abduction in the Indian Penal Code.