Difference between Kidnapping and Abduction and it's kinds

1. INTRODUCTION

The literal meaning of kidnapping is child stealing and abduction means whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person.

2. RELEVANT PROVISIONS

Relevant provisions regarding  the concerned topic are as follows:

Sections 360, 361 and 363 for kidnapping.

Section 363 for abduction.

3. KIDNAPPING

a. MEANING

Kidnapping means carrying a person away, without his consent, by means of force, threats or fraud.

b. KINDS OF KIDNAPPING UNDER SECTION 359

Kidnapping is of two kinds

(i) Kidnapping from Pakistan

(ii) Kidnapping from lawful guardian

i. KIDNAPPING FROM PAKISTAN UNDER SECTION 360

Whoever conveys any person beyond the limits of Pakistan 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 Pakistan.

1. Scope

Offence with regard to kidnapping from Pakistan may be committed on a grown up person or minor by conveying him or her beyond the limits of Pakistan.

2. Essential ingredients of kidnapping from Pakistan

The essential ingredients of the offence of kidnapping from Pakistan, etc are as under:

(i) There must be conveying of any person beyond the limits of Pakistan.

(ii) Such conveying must be without the consent ,of that person or of some person legally authorized to consent on behalf of that person.

ii. KIDNAPPING FROM LAWFUL GUARDIANSHIP U/SEC. 361

Whoever takes or entices any minor under fourteen years of age, if a male, or under sixteen years of age, if a female or any person of unsound mind without the consent of such guardian is said to kidnap such minor or person from "lawful guardianship.

i. Object of Sec. 361

The object of this section is at least as much to protect children of tender age from being abducted or secluded from improper purpose, and for the protection of the rights of parents and guardian having the lawful charge or custody of minors or insane person.

ii. Essential ingredients of kidnapping from lawful guardianship

Following are the essential ingredients of kidnapping from lawful guardianship

a. There must be a taking or, enticing away of minor or a person of sound mind.

b. Such minor must be under 14 years of age if male or under 16 years of age, if a female.

c. The taking or enticing must be out of the keeping of the lawful guardianship of such minor or person of sound mind.

d. Such taking or enticing must be without the consent of such guardian.

iii. Essentials of Kidnapping

Follow are the essentials of kidnapping.

I. TAKING OR ENTICING

There must be a taking or enticing away of the child or person of unsound mind.

(i) Taking Meaning

The word taking means to cause to go to escort ro to get into possession. Taking under this section does not mean mere physical taking of minor from guardianship but also includes constructive taking from constructive possession.

Constructive taking such as meeting at as appointed place outside would constitute constructive taking from the constructive possession of the guardian.

(ii) Enticing

The word entire involves an idea of inducement by exciting hope or desire in the other. The express enticing involves that while the person kidnapped might have left the keeping of the lawful guardian willingly, still he state of mind that brought about that willingness must have been induced or brought about in some way the accused.

II. MINOR OR UNSOUND PERSON

The person against whom offence of kidnapping have been committed must be minor or a pert, sore of unsound mind.

As such an offence can be committed only when the person kidnapped is under 14 if a male arid: under 16, if a female.

III. OUT OF THE KEEPING OF LAWFUL GUARDIANSHIP

In order that an offence of kidnapping may constitute, the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.

i. Keeping Meanings

The word keeping implies neither prevention nor detention but rather maintenance, protection and control manifested not by continuous action but available on necessary arising (AIR 1955 A11.78)

ii. Lawful guardian

The words lawful guardian in this section include any person lawfully entrusted' with the care or custody of such minor or other person.

(iii) Lawfully entrusted

The term lawfully entrusted means a declaration of trust and the holding over or the giving or entrusting a minor to the care and custody of another by a person competent to do so unaffected by any illegality or impropriety coupled with the assent express or implied of the person in whom the trust is vested or imposed.

iv. Without consent of Guardian

The taking or enticing of the minor out of the keeping of the lawful guardian' must be without his consent. The consent of a minor is immaterial consent given by the guardian after the commission of offence would be of no avail. If a man by false and fraudulent representation induces the parents of a girl to allow him to take her away, such taking will amount of kidnapping.

a. Exception

This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good' faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

V. PROOF OF KIDNAPPING

I. KIDNAPPING FROM PAKISTAN

In case of kidnapping from Pakistan, following need to be proved:

a. The person kidnapped was in Pakistan.

b. the accused conveyed him beyond Pakistan.

c. The accused did so without. his consent or the consent of another legally authorized to consent on his behalf.

II. KIDNAPPING FROM LAWFUL GUARDIANSHIP

In case of kidnapping from lawful guardianship, the following thing need to be proved.

a. That the person kidnapped Was minor under 14 years 11 a male, anti under 16 years if a female.

b. That he was insane

c. That the person was in the keeping of a lawful guardian.

d. That the accused took or enticed such person out of such keeping.

e. That he did so without the consent of the lawful guardian.

VI. PUNISHMENT OF KIDNAPPING UNDER SECTION 363

Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

4. ABDUCTION

(I) DEFINITION U/SEC 362

Whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person.

(II) INGREDIENTS

i. Forceful Compulsion or Inducement

There must be forceful compulsion or inducement by deceitful means to any person. Force means the actual force and not the show of force.

(ii) To Go From One Place to Another

The object of such compulsion or inducement must be the going of a person from any place. It is a continuing offence, and a girl is being abducted not only when  she is first taken from any public place but  also when she is removed from one place to another.

(iii) SCOPE

Section 362 merely gives a definition of the word abduction which occurs in some of the penal provision which follow. It is an auxiliary act, not punishable itself.

5. DIFFERENCE DETWEEN KIDNAPPING AND ABDUCTION

i. AS TO AGE

It is committed only in respect of a minor under 14 years of age if male and under 16 years if a female or a person of unsound mind but in abduction is committed in respect of any person of any age.

ii. AS TO GUARDIAN

The person kidnapped is removed from lawful guardianship. A child without a guardian but in abduction Not necessary.

iii. AS TO MEANS USED

In kidnapping, the minor is simply taken away. The means used may be innocent but in abduction force compulsion of deceitful means are used.

iv. SCOPE

Kidnapping is committed only in respect of a minor or person of unsound mind or if it is from Pakistan, of person of any age but in abduction is committed in respect of any person of any age.

v. KINDS

Kidnapping is of two kinds viz kidnapping from guardianship and kidnapping from Pakistan but abduction is of only one kind.

vi. EFFECT OF CONSENT

In kidnapping from guardianship consent of a person taken or enticed is immaterial but in abduction free and voluntary given consent of the person removed condones abduction.

vii. PLACE

In kidnapping from Pakistan, the place to which the victim is taken must be outside the limits of Pakistan but In abduction, the place is not important.

viii. AS TO GUARDIAN

In kidnapping from guardianship a child wither guardian cannot be kidnapped but in Abduction has reference exclusively to the person abducted.

ix. INTENT

In kidnapping, the intent of the offender is wholly irrelevant but in abduction, intention is the most important factor.

x. CONTINUENESS

Kidnapping from guardianship is not a continuing offence and it is complete as soon as the minor is removed from the custody of his or her guardian but in Abduction is a continuing offence and a person is abducted both when he is  first taken from any place and also when he is removed from one place to another.

xi. NATURE

Kidnapping is a substantive offence but in Abduction not Punishable by itself unless accompanied with some criminal intent.

6. ANALYSIS

In last Conclude I can say that kidnapping and  abduction are two different offences and there are so many points of differences between them such as, as to scope, as to kinds etc. 

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