Criminal law: Kidnapping and abduction

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Kidnapping and Abduction have turned into an imperative social and judicial problem in the recent years. According to the Black’s Law Dictionary, in many jurisdictions, kidnapping turns into abduction when the victim is a woman. The word kidnapping has been derived from two words that are, ‘kid’, which means a child and ‘napping’, which means stealing. Hence, the word means ‘child stealing’. However, under the Indian Legal System, the word kidnapping has a wider connotation. It includes unlawful diversion of a human being without his/her consent or without the consent of the guardian of the person being kidnapped.  Abduction on the other hand, includes the use of brute force or any deceitful means to take a person from one place to another.

Moreover, kidnapping and abduction are considered to be one of those crimes that have a severe psychological effect on its victims. Normally, victims take years to recover from the emotional and psychological wounds inflicted upon them.

Definition of Kidnapping and Abduction

Kidnapping

Kidnapping in its widest sense occurs when a person carries away another person by force or fraud with the intent to exploit the abduction. Kidnapping is classified into two categories under Section 359 which are:

a)    Kidnapping from India

b)    Kidnapping from lawful guardianship.

Kidnapping from India is explained under Section 360, which defines it as, any person taking a person beyond the boundaries of India, without the consent of that person, or of the person who is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India has been committed.

Another category of Kidnapping is explained under Section 361, which can be understood as, a person taking away or enticing a minor or a person of unsound mind, from his/her guardian without their consent, then that person committed the offence of kidnapping from lawful guardianship. Therefore, the essentials of kidnapping from lawful guardianship are as follows:

  • Taking or enticing: The words take and entice are similar, but not synonymous in this section. The word ‘take’ doesn’t necessarily connote taking by force, and is not confined only to the use of force, actual or constructive. It merely means cause to go, to escort, or to get possession. The mental attitude of the minor is not relevant in the course of taking. On the other hand, the word ‘entice’ seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or work it may create continuous and gradual but imperceptible impression culminating after some time.
  • Of Minor or person of unsound mind: Section 361 states that a minor is, a male under the age of 16 years, and a female under the age of 18 years. However, the age of minority can be different for different states, like in Manipur, where the age of females in 15 years.
  • Without the consent of lawful guardian: The word lawful guardian must be distinguished from the word legal guardian. A guardian may be lawful without being legal. The lawful guardian is one to whom the care and custody of a child are entrusted under a lawful proceeding lawfully. For example, when a father of a girl sends her to school with his friend, then his friend is the lawful guardian while the father is the legal guardian. Thus, this section gives a wider connotation to the word guardianship.

However, this section has one exception, that is, it doesn’t extend to the act of any person who, in good faith believes himself to be:

a)    The father of an illegitimate child,

b)    Entitled the lawful custody of such child,

The punishment for kidnapping is given under section 363, wherein it is said that,  “whoever kidnaps another person from India, or from a lawful guardian, shall be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine.”

Abduction

Abduction is defined under Section 362 of the Indian Penal Code, as, if a person compels another person to go from one place, or induces some person to go from one place, then the offence of abduction is committed. In a more restricted sense, it is also confined to the taking of females for marriage, concubine, or prostitution. The essentials of this section are:

i)    Using force or deceitful means,

ii)    Taking a person from a particular place

Legal provisions

Sections 363A to 369 of the IPC have made various other aggravated forms of kidnapping and abduction punishable. Under section 363A, Kidnapping or maiming a minor for purposes of begging is made a crime, wherein, the person who illegally obtains the guardianship of minors, from their lawful guardians and employs them for begging is punishable with life imprisonment and is also liable for fine. Further, under section 364 and 364A, Kidnapping or abducting to murder and kidnapping for ransom respectively made punishable under IPC, and in these cases, the punishment may extend upto 10 years for the former, and life imprisonment with fine, for the latter.

Various forms of kidnapping a woman are given in the code from section 366 to 366B, wherein the punishment of the perpetrator extends to 10 years as well as fine. They are as follows:

  • a)    Kidnapping, abduction, or inducing women to compel her marriage, etc.
  • b)    Procurement of minor girl.
  • c)    Importation of girl from a foreign country, wherein the girl under the age of 21 years are imported with the intent that she may be, and knowing it to be likely that she will be forced or seduced to illicit intercourse with another person.

Other relevant sections are Section 367 to 369, where the following type of aggravated form of Kidnapping and Abduction is penalized:

  • a)    Kidnapping or abducting to subject a person to grievous hurt, slavery, etc.
  • b)    Wrongfully concealing or keeping in confinement, kidnapped or abducted person.
  • c)    Kidnapping or abducting child of less than 10 years of age.

Difference between Kidnapping and Abduction

The difference between Kidnapping and Abduction has been drawn in many cases by The Supreme Court and various High Courts. Some of the pointed out differences are:-

  • a) Kidnapping is committed only with respect to a minor or a person of unsound mind whereas; abduction can be with respect to a person of any age.
  • b) The person kidnapped is removed out of lawful guardianship. A child without a guardian cannot be kidnapped. Whereas, Abduction has reference exclusively to the person abducted.
  • c) In Kidnapping, the minor is simply taken away. The means used may be innocent. In Abduction, force, compulsion, or deceitful means are used.
  • d) In kidnapping, consent of the person taken is immaterial; in abduction, consent of the person moved can condone abduction.
  • e) In kidnapping the intent of the offender is a wholly irrelevant consideration: in abduction, it is an important factor.
  • f) Kidnapping from guardian is a substantive offence under the Code; but abduction is an auxiliary offence, not punishable by itself, but made criminal only when it is done with one or other of the intents specified in S.364.

Landmark judgments

In the case of Thakorilal D. Vadgama v. the State of Gujarat, it was held that Section 366 of the IPC seeks to protect a minor child from being seduced to illicit activities and so any kind of inducement or enticing which brings the minor out of the keeping of their guardian will be considered as kidnapping. Hence, a minor’s acceptance to leave her parents and having intercourse with kidnappers is not enough to absolve the person from liability.

In the case of S Varadarajan v. the State of Madras, it was held that the word “taking” means to induce the minor or actively participating in developing an intention in the minds of the minor to leave her father’s guardianship. It was also held that where a minor girl leaves the protection of her father to join the accused, knowing and completely understanding the consequences of her act, it cannot be said that the accused has taken her away from the keeping of legal guardian.

In the case of the State of Haryana v. Raja Ram, it was held that “keeping” under section 361 connotes the idea of charge, maintenance, protection and control. It was also held that the consent of minors is immaterial and lawful guardian is a wider term as compared to legal guardian. 

Critical analysis

The number of kidnappings and abductions of women and girls has jumped a whopping 163.8% since 2002. Violent crimes or crimes that fall under the Indian Penal Code (IPC) have jumped about 34% over the last 10 years, from about 1.7 million in 2002 to 2.4 million in 2012. On an annual basis, violent crimes rose by 3% from the previous year’s 2.3 million. In 44% of the cases related to the kidnapping or abduction of females, the cause was not defined. Maximum victims kidnapped or abducted were in the age group of 18 to 30 years (21,924 victims), and 16 to 18 years (20,838 victims) (Saldanha, Manoj, and Salve 2017). Child trafficking remains rampant in many parts of India. According to ChildLine India, over 40,000 children are kidnapped every year. About 11,000 of these cases sadly remain untraced. New Delhi has particularly high numbers for kidnapping in India. The majority of abducted children are exploited as sex slaves or trafficked for forced labour. Many others are snatched from their parents and sold for adoption to unsuspecting couples. Kidnappings and abductions have soared since 2001. The National Crime Records Bureau (NCRB) shows that their share in total crimes against women nearly doubled from 10% in 2001 to 19% in 2016.

Further, the victim faces psychological problems, which can be divided into Cognitive, Social and Emotional problems. Cognitive problems include, confusion, memory loss, flashbacks and dizziness and Social problems such as avoiding people and social meetings or gathering. Lastly, emotional problems can be divided into depression and anxiety, which is also common among the victims of such crimes. Stockholm syndrome, which means a feeling of attachment with the captors, which the victims subconsciously make it a survival strategy, is also a kind of Emotional anxiety disorder.

Hence, it is pertinent for steady implementation of law and enforcement of the administrative system. The fundamental test in India remains enforcement and the way that there is a sure level of exemption for those disregarding the law. Moreover, people’s awareness of rights and data about governmental help would guarantee the legitimate use of different plans and laws surrounded by the government. Further, media ought to likewise assume a dynamic part in instructing and sharpening the general public about kidnapping and abduction by giving required publicity about the current laws against kidnapping and abduction. Lastly, it is also important for the victims to go through extensive therapy and mental health programs, to cope with the psychological damage that might have been inflicted upon them.

Conclusion

Kidnapping and abduction infringe the basic right to life and liberty of a person, as embodied by Article 14 of the Indian Constitution. With the steady increase in the number of victims of these heinous crimes, the need to prevent the cases of kidnapping and abducting has become particularly important, especially when it is done for forced beggar, maiming, and sexual intercourse.

To battle trafficking of children, co-task among the legal frameworks, the government bodies and the non-government bodies is extremely important. Co-task among nations should also be cultivated to counter this phenomenon, by consistency in punitive arrangements. This consistency can be accomplished through the endorsement of international instruments and national implementation of these international humanitarian instruments.

Authors: Kumar Writwik from Symbiosis Law School, Pune and Shivani Panda from Amity Law School, Delhi.

Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.

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