Difference between kidnapping and abduction

Introduction
We often see in movies or serials, the criminal forcefully taking away any person to another
place in order to extract a ransom from his/her family or beloved. We usually call it a
‘kidnapping.’ But we are less aware of the term ‘abduction.’ Abduction is similar to
kidnapping but it needs certain purposes to be accomplished after taking away in order to
constitute the crime. Whereas in kidnapping, just doing the act of taking away constitutes a
crime.
According to NCRB Crime in India Report 2021, India reported 1,01,707 cases of kidnapping
and abduction. It shows a halt of 19.9% in cases as compared to cases reported in 2020. Of
those kidnapped and abducted, 17,605 were male, 86,543 were female and one was
transgender. The various reasons for kidnapping and abduction, according to statistics are-
 Ransom
 Forced marriage
 Murder
 Procuration of minor girls
 Purpose of Begging
 Exportation of girls to foreign countries
The leading reason for this crime is to compel a girl for marriage which accounts around one-
fourth of all the cases.
The Indian Penal Code, 1860 defines both the offences of kidnapping and abduction
in Section 359 and Section 362 respectively. They are categorised under the offences
affecting the human body (Chapter XVI of IPC, dealing with offences affecting the human
body).
Overview of the difference between Abduction and Kidnapping

Grounds of
Kidnapping Abduction
differentiation

Section 359 defines the offence of Section 362 defines the

Section
kidnapping. offence of abduction.

Meaning Kidnapping refers to taking away a minor or Abduction refers to

person of unsound mind from its legal compelling or inducing
guardianship or taking away any person any person by using force
beyond the limits of India. or through any deceitful
means, to take him/her
from one place to
 another.

It is a continuing offence.
It is not a continuing offence. It is
Nature of It continues till the person
completed soon at the moment a person is
offence is removed from one
separated from lawful guardianship.
place to another.

Section 359 defines two types of

kidnapping:
Section 362 defines only
Types 1. Kidnapping from India (Section 360)
one type of abduction.
2. Kidnapping from lawful
guardianship (Section 361)

It involves minors, i.e., girls upto the age of

It can take place in
Parties 18 years or boys upto the age of 16 years,
reference to a person of
referred or persons of unsound mind and a lawful
any age.
guardian.

Force, compulsion or
Means used Means used are immaterial. deceitful means should be
involved.

In the case of “kidnapping from lawful

guardianship”, the consent of a lawful
guardian is relevant to decide the
The consent of the person
commission of the offence. But in the case
Nature of is induced by force or
of “kidnapping from India”, it must be
consent compulsion or means of
shown that it was done without the
deceit.
consent of the person or the person legally
authorised to give consent on that person’s
behalf.

Intention of the person kidnapping is Intention to commit an

Intention
immaterial. offence is essential.

It is not a substantive
It is a substantive offence. It means merely offence. It constitutes an
Type of
the act of taking away constitutes offence when it was done
offence
kidnapping. with the intention to
commit other offences.

Punishment Section 363 prescribes punishment for Mere abduction is not

kidnapping which is imprisonment that may punishable unless done
extend to 7 years and a fine. with intent to commit
other offences as
 provided in
Sections 364 to 369.

A induces B by force to go
A takes away B, a girl of 16 years of age, out
from one place to another
of her lawful guardianship without the
Illustration place in order to compel
consent of the guardians. A has committed
her for marriage. A has
kidnapping.
committed abduction.

Kidnapping
The word ‘kidnapping’ has come from two words, ‘kid’, which means child and ‘napping’,
which means to steal. Thus, it literally means stealing a child.
Section 359 of the Indian Penal Code classifies kidnapping into two categories:
1. Kidnapping from India
2. Kidnapping from lawful guardianship
In India, the offence of kidnapping is not confined to only the stealing of children. It has
given wider scope to include the act of carrying away a human being without his/her
consent or without legal guardians’ consent, in the case of males under 16 years or females
under 18 years.
In the case of Thakorlal D. Vadgama v. State of Gujarat (1973), where the accused, Thakori
Lal was held liable for kidnapping under Section 363. He kidnapped a minor girl, Mohini from
the lawful guardianship of her father by inducing her to leave her father’s place and by
encouraging her that he would give her shelter. The Supreme Court in this case held that
mere circumstances that his action does not cause her to immediately leave her parental
home would not be a defence for the accused to absolve him from the offence of
kidnapping.
Types of Kidnapping
Kidnapping from India
Section 360 provides for kidnapping from India. It states, “ 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.”
The necessary elements to constitute this offence are-
 Conveying the person beyond the limits of India,
  Without the consent of such person or person legally authorised to give consent on
behalf of that person.
The offence under this section would not be complete until the person actually reaches not
only a foreign territory but his destination as well. Unlike Section 361, this offence is not
restricted to minors or persons of unsound mind. It may be committed against any person,
male or female, major or minor, irrespective of nationality and age.
Kidnapping from lawful guardianship
Section 361 provides for kidnapping from lawful guardianship. It states, “Whoever takes or
entices any minor under sixteen years of age if a male, or under eighteen 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 a such guardian, is said to kidnap
such minor or person from lawful guardianship.”
The necessary elements to constitute this offence are-
 Taking or enticing a minor or unsound person,
 Such minor should be under 16 years of age in case of male or under 18 years of age
in case of female,
 Taking or enticing out of the keeping of lawful guardian,
 Without the consent of the legal guardian.
The offence under this section is complete as soon as a minor or person of unsound mind is
actually taken away from legal guardianship. Moreover, the consent of minors in respect of
this offence is completely immaterial. One exception provided under this section is that if a
person in a good faith believes himself to be a father of an illegitimate child or believes
himself to be entitled to the custody of such child, takes away the child out of the custody of
the lawful guardianship without their consent, not for any unlawful or immoral purposes,
would be exempted from the liability under this section.
Kidnapping for begging (Section 363A)
Section 363A was inserted by the Indian Penal Code (Amendment) Act, 1959 and came into
force on 15 January 1960. This section further extends the scope of Section 363 of the Indian
Penal Code, which provides punishment for “Kidnapping or maiming a minor for the
purposes of begging”. It provides severe punishment for such offence, which may extend to
10 years imprisonment of either description and a fine for kidnapping a minor for purposes
of begging and life imprisonment for maiming a minor for purposes of begging.
The main elements for this offence are-
 Minor should be kidnapped or maimed,
 Kidnapper should not be a lawful guardian,
 Kidnapper should obtain custody of such minor,
  Minor should be used for purposes of begging.
Is kidnapping bailable?
Section 363 is a bailable offence, that is, the accused can claim for bail as a matter of his
right. But in the state of Uttar Pradesh, there are stringent laws for this offence. It is declared
non-bailable in Uttar Pradesh after the Code of Criminal Procedure (Uttar Pradesh
Amendment) Act, 1983 (Section 12).
Moreover, as per Section 86 of the Juvenile Justice Act (Care and Protection of Children),
2015, the offence of kidnapping becomes non-bailable whereas it is bailable under the
Indian Penal Code. Section 84 of the Act also removes the upper limit of 16 years on the age
of male for the offence of kidnapping and applies to any person, irrespective of gender,
under 18 years of age who is kidnapped from a lawful guardian.
In the case of Kashir Ahmed v. State of Himachal Pradesh (2018), the accused of kidnapping
has been granted bail. According to the prosecution, the accused kidnapped a 16-year-old
girl on the pretext of marriage and took her to Saharanpur, where he allegedly raped her for
three days. But after taking evidence and examination of the victim, the court concluded
that the victim was on friendly terms with the accused and has gone with the accused of her
volition. Hence, the court allowed bail to the accused after furnishing bonds and sureties.
It may be wondered by the common people as to how something heinous like kidnapping
has been made bailable. Supreme Court’s observation in the case of Sanjay Chandra v. CBI
(2011), with respect to bail, can be used to answer such a false notion-
“ The object of bail is to secure the appearance of the accused person at his trial by a
reasonable amount of bail. The object of bail is neither punitive nor preventative.”
Is kidnapping cognizable or non-cognizable?
Section 363 is cognizable under the Indian Penal Code, that is, police officers may arrest an
individual without a warrant issued by the Magistrate. After the arrest of the accused,
he/she should be presented before the Magistrate within 24 hours excluding the time for
the journey in taking the accused to the office of the Magistrate. The offence of kidnapping
is triable by the Magistrate of 1st class.
Is kidnapping compoundable or not?
Section 363 of the Indian Penal Code is non-compoundable in nature, that is, the offence of
kidnapping cannot be compromised between the parties. However, in some special cases,
the Supreme Court may have the power to direct the compoundability of non-
compoundable offences.
Moreover, in the case of Ram Pujan v. State of U.P (1973), the High Court in view of
compromise between the parties in non-compoundable offences has reduced the amount of
imprisonment. Then, the case came to the Supreme Court, where the apex court held that:
“The major offence for which the appellant is convicted is no doubt non-compoundable, but
the fact of compromise can be taken into account in determining the quantum of sentence.”
Abduction
Abduction means taking away any person by using deceitful tricks for the purpose of
committing some offence.
The necessary elements to constitute this offence are-
 Use of compelling force or use of any deceitful means,
 Inducing the person from one place to another,
 With the intention to commit any offence.
The force or compulsion is necessary to constitute the crime of abduction. It means if a girl
voluntarily goes out with any person without any force or compulsion, that person will not
be tried for the offence of abduction.
The use of ‘deceitful means’ will not only cover fraud or misrepresentation but also the act
of taking away someone by inducing him/her on a pretext.
In the case of Kavita Chandrakant Lakhani v. State of Maharashtra (2018), it was well
established that the mere abduction of a woman is not sufficient to attract the offence
unless it was proved that the accused abducted the woman with an intention to compel her
marriage or to force or seduce her to illicit intercourse with another person.
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.
Means
  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.
Consent
 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 [3]).
 In case of Abduction, the intention of the person abducting is a very important factor
in determining the guilt of the accused person.
Punishment
 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.
 Some specific punishments as provided for kidnapping under the Indian Penal Code
are:

Section of
Types of Kidnapping Punishment
IPC

Kidnapping for purpose of begging 10 years + Fine 363A

Kidnapping in order to murder 10 years + Fine 364

Kidnapping for ransom 10 years + Fine 364A

Kidnapping with intent to wrongfully confine a person 7 years + Fine 365

Kidnapping so as to compel a woman to marry 10 years + Fine 366

Kidnapping so as to subject a person to grievous hurt 10 years + Fine 367

Kidnapping a child under 10 years of age in order to

7 years + Fine 369
steal from a person
  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.
 But some specific types of abduction attract the following punishments:

Section of
Types of Abduction Punishment
IPC

10 years +
Abduction in order to murder 364
Fine

Abduction with intent to wrongfully confine a person 7 years + Fine 365

10 years +
Abduction so as to compel a woman to marry 366
Fine

10 years +
Abduction so as to subject a person to grievous hurt 367
Fine

Abducting a child under 10 years of age in order to steal

7 years + Fine 369
from a 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.