What is the Difference Between Kidnapping and Abduction
Kidnapping and Abduction under BNS: Difference, Meaning, Punishment & Case Law
According to Section 137 (1) of BNS/Section 359 of IPC, Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
Two Kinds of Kidnapping Recognised in IPC :
- Kidnapping from India; and
- Kidnapping from Lawful Guardianship.
Kidnapping From India [Section 137(1)(a), BNS, 2023/Section 360 of IPC]
Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India.
For an offence under this section the victim may be a male or a female, whether major or a minor. This offence consist of the following ingredients :
- Conveying of any person beyond the limits of India.
The words used in the section are 'beyond the limits of India'. This means that the offence under this section is complete, the moment a person is taken outside the geographical territory of India. It is not necessary that the persons should reach their destination in some other foreign territory. If a person is apprehended before he crosses the Indian border, then the offence will not be complete. At best, it may amount to an attempt to commit the offence of kidnapping from India.
Such conveying must be without the consent
If the person is major such conveyance must be without his/her consent. If the person is minor/unsound, consent of a lawful guardian is required. Consent must be free, voluntary, and informed. If consent was obtained by fraud/deceit, offence may still apply.
Punishment - Imprisonment up to 7 years (either description) + fine.
Kidnapping from Lawful Guardianship [Section 137(1)(b) of BNS /Section 361 of IPC]
Whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship.
The object of the section is to protect minor children and persons of unsound mind from being seduced, harmed or otherwise exploited by others.
Essential Ingredients of Kidnapping
To constitute this offence, the prosecution must prove:
Taking or enticing away
All that is required to bring an act within the purview of this section, is to 'take or entice’ a minor or a person of unsound mind from the keeping of the lawful guardian.
Meaning of Taking
The word taking does not imply the use of active or constructive force. It simply means to go with or to escort a minor/person of unsound mind.
However, there must be some active role played by the accused in removing the minor from the lawful guardian’s custody. Mere passive permission or allowing the minor to accompany the accused does not amount to kidnapping.
In S. Varadarajan v. State of Madras (1965), A girl, who was about to turn 18 years old, voluntarily left her father’s house. She arranged to meet the accused, went with him to the sub-registrar’s office, and both registered an agreement to marry. There was no evidence that the accused persuaded or induced her to leave home.
The court held that since the girl left her father’s custody voluntarily, and the accused had not played an active part in taking her away, no offence of kidnapping was made out. For the offence to be complete, the accused must have taken some positive step of inducement or enticement. Mere passive acquiescence in the girl’s voluntary act does not amount to “taking.”
Enticing
The word entice carries the idea of inducement or persuasion. It involves offering pleasure, benefit, or some other form of allurement to a minor or person of unsound mind.
In State of Haryana v Raja Ram (1973), the Court held that persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to attract this section.
Thakorlal D. Vadgama v. State of Gujarat, Court held that even if a minor initially leaves voluntarily, if the accused provides shelter or continuous inducement leading to her staying away from her guardian, it constitutes enticement.
In Biswanath Mallick v. State of Orissa (1995), the Court held that even mild persuasion, promises of comfort, or allurements can amount to enticement.
In Motiram Hazarika v State of Assam (2004), the Court held that inducing a minor girl by promise of marriage to leave the house of her guardian amounts to enticement within the meaning of the section.
Enticement may operate in two ways:
- Immediate effect - where the inducement quickly influences the minor to leave the lawful guardian.
- Gradual effect - where inducement creates a slow, continuous, or even imperceptible impression over time, ultimately leading the minor to leave the guardian’s custody.
Taking or enticing away must be done of child
The taking or enticing away must be out of the keeping of the lawful guardian of such minor
Lawful Guardian - The term used in the BNS/IPC is 'lawful guardian' and not 'legal guardian'. The expression lawful guardian is a much wider and more general term than the expression legal guardian.
Legal Guardians would be parents or guardian guardians appointed by courts. 'Lawful guardian' would include within its meaning not only legal guardians, but also such persons like a teacher, relatives, caretaker, hostel warden, nurse etc, who are lawfully entrusted with the care and custody of a minor.
Keeping of Lawful Guardian
This section treats it as an offence to take or entice a minor or a person of unsound mind out of the “keeping” of their lawful guardian. In State of Haryana v. Raja Ram, the Supreme Court clarified that keeping means the guardian’s charge, care, and control, not just physical possession. A child is still in the guardian’s keeping even when outside the home, such as at school or on the street, and is considered taken out of keeping only when removed from the guardian’s authority. The law uses the broader term keeping (instead of “possession” in English law) to protect the guardian’s right over the child’s custody.
Such taking or enticing away must be without the consent of such guardian
The offence of kidnapping lies in taking a minor out of the lawful guardian’s keeping without that guardian’s consent. What matters is the consent of the guardian, not the minor, since a minor’s consent has no legal value.
Only the guardian’s prior consent can protect the accused from liability, while any consent given by the guardian after the act of kidnapping has occurred is meaningless and cannot undo the offence.
Exception
This section does not apply in the following situations:
- Where a person, in good faith, believes himself to be the father of an illegitimate child; or
- Where a person, in good faith, believes that he is entitled to the lawful custody of such a child.
(However, this protection is lost if the act is done for any immoral or unlawful purpose).
Nature of Offence of Kidnapping
The offence is one of strict liability. Intention or motive is irrelevant. Once the act of taking/enticing without guardian’s consent or crossing India’s boundary is proved, the offence is complete. Even good intentions (e.g., to provide better care) do not absolve liability, unless covered under specific exceptions.
Abduction
According to 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.”
Essential Ingredients
To constitute abduction, two elements must be present:
- Forcible compulsion or inducement by deceitful means.
- The object of such compulsion/inducement must be to make a person go from any place.
Force or Deceitful Means
Force - Must be actual physical force, not merely a threat or show of force. For example: Dragging a person out of a house.
Deceitful Means - Misleading a person by false representation or fraud to induce movement. For example: Convincing someone by lies to leave their home.
Going from Any Place
The act must involve the victim moving from one place to another. Unlike kidnapping, abduction is not restricted to minors or persons of unsound mind; it applies to any person. Custody of a lawful guardian is not necessary.
A key element of abduction is that a person must be compelled or induced to go from any place. Unlike kidnapping, it does not require removal from the custody of a lawful guardian. Kidnapping is a completed offence the moment a person is removed either from India or from the lawful custody of their guardian. Abduction, on the other hand, is a continuing offence.
A person is abducted not only when first taken from one place, but also when subsequently moved from one place to another by force or deceit.
Illustration - A kidnapped girl escaped and met the accused, who falsely claimed to be a police constable and offered to take her to the police station. Instead, he took her to his house, kept her confined. His actions amounted to abduction.
If a woman is handed over from one person to another at different places, each person involved in moving her is guilty of the offence of abduction.
Effect of Being a Continuing Offence
- Multiple Liabilities - If the abducted person is passed from one accused to another, each participant is guilty of abduction.
- Jurisdiction - Since the offence continues, courts in any place where the abducted person is taken have jurisdiction to try the offence.
- Cause of Action - Since abduction continues as long as the person is being moved from place to place by force or deceit, a fresh cause of action arises at every stage of removal.
Nature of Abduction
Abduction per se is not an offence under the BNS/IPC. It becomes punishable only when combined with a specific criminal intent, as mentioned in subsequent sections.
When Abduction Becomes an Offence
Abduction is punishable if done with the intent to:
- Murder
- Secretly and wrongfully confine a person
- Compel a woman to marry/illicit intercourse
- Subject a person to grievous hurt, slavery, or unnatural lust
- Kidnap/abduct a child under 10 years to steal from them
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